When you take an exam, pass, and end up on a list, under NYS law a hiring manager can select candidates off the list using the “1 in 3 Rule” which is also known as “The Rule of Three”.
There have been many concerns about this practice, but it has been around a long time.
Basically, it allows an agency to select one out of three candidates in a particular place on the list, and not have to take the other two of the three.
For example, if there were three individuals on a list, with respective scores of 100, 95, and 90, and any of them would take the job if offered, the agency can select the one who scored 90 and can disregard the other higher-ranked candidates.
Here’s another example. Say an agency had five openings. A test was given, and a list was certified where one candidate scored 100, one who scored 95, and twenty who scored 90. The agency can skip the 100 and 95 and take their five from the twenty “90” core candidates.
DC37, the city’s largest union, isn’t very fond of the rule. In 2007 they tried to push the city to change the rule because of the potential for agencies to pass over qualified candidates. And they continue to periodically challenge it. But the city isn’t budging. Other unions like CWA Local 1180 have also expressed concern.
I strongly suspect I was a victim of it myself a long time ago. I took a technical test for a job in Nassau County, NY in the 1990’s and scored number 1. I never got a call or an offer for an interview. Some have challenged it on their own (see Hatala v McCaul) but the rule has stood up in court.
It’s not just the city. It’s based on NYS Civil Service Law . NYC Department of Citywide Administrative Services, or DCAS, also reiterates it under “Personnel Rules and Regulations of the City of New York, Rule IV”, as follows:
SECTION VII–CERTIFICATION OF ELIGIBLE LISTS AND SELECTION THEREFROM
4.7.1. General Provisions.
(c) Appointment or promotion from an established eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the commissioner of citywide administrative services or the head of the certifying agency, as the case may be, as standing highest on such established list who are qualified and willing to accept such appointment or promotion. Where applicable, such selection shall be made as provided for in paragraph 4.4.12 of these rules.
The CSEA Local 1000 has a great “primer” on the Civil Service hiring process that is extremely similar to the city’s, if not the same. Very good description on the selection process – see pages 26 & 27.
Schoharie County in upstate NY also has a good FAQ that discusses the process under “What is the ‘rule of three?’”.
Let’s take it a step further. Let’s say that on a certain test a large group – or even everyone – ended up scoring the same. Everyone scored 100, and there were no other differences. Who would be number 1, number 2, etc.?
DCAS has a way to resolve this too:
4.4.11. Candidates With Same Final Examination Rating.
Whenever two or more candidates in an examination receive the same final examination ratings, their respective place on the resulting eligible list shall be determined for administrative reasons only by a sequence of the number derived from the last five and then the first four positions of their social security numbers.
That’s right. If your score is the same as someone else’s, and there are no other advantages (like selective certification) then it’s based on the last digits of your Social Security Number.
A topic we broached upon in another posting is being “reachable”. Basically, if you are working as a provisional in an agency, for example, and your agency wants to keep you, and you want to stay, then you need to be reachable on the list. The CSEA document has fine examples of this.
An Example of “Can’t Be Reached”
So, for example, if there is a list and you are number 4, One of the first three must: decline the offer of the job; be “picked up” (hired) by another agency; or be otherwise disqualified and not eligible for the job.
In many cases, due to the e x t r e m e l y slow hiring process, those not already working for the city may have another job and are not interested. Really, unless you work in the Human Resources (HR) department – and even then – you might not know the number of candidates that are actually viable and interested on the list. This is what makes being a provisional a risky proposition… you will probably get hired, but you may lose…
Comments and Questions are welcomed below.
Hi Chris, took an exam in 2018, got a call letter, interview and offer in 2019 but declined because salary was less than my current salary. did not get another call letter until 4/2022 when I was literally scheduled to transfer agencies later that month. My soon-to-be new agency said they could not submit a DP-72 for me, so , I declined once again.
Since then, I have seen my list being called multiple times in The Chief newspaper but I did not receive any notice or call letter.
In speaking with my HR, I was told only 51 names remain on my list and it is due to expire this week. I was told there are 28 people ahead of my score of 90.
Finally, a position with the title was create at my home agency, and I was notified that I was reachable- even though I did not get a call letter.
I submitted all paperwork and it was approved and I was told I would begin serving in that Title.
After serving in the title for 6 weeks, I was told OOPS no sorry you were not reachable and you will need to go back to your previous provisional title.
has that ever happened before?!?
Now, again, my agency is are calling all 51 eligibles, but no call in letter for me.
any idea what this is all about?!?
Hi Jay,
Sorry to hear about your run-around.
I’m not too familiar with the DP-72. With all my time in the city I only had one person make a lateral transfer to another agency and that paperwork was handled at the headquarters level. So, it’s curious why your new agency couldn’t submit the DP-72. I’m presuming it was that you were going to be picked off the list, saving the agency the hassle.
But with your home agency saying you were reachable then pushing you back to provisional – no haven’t had that happen. You might have some traction if you have it all in writing somewhere. You might be able to appeal to DCAS or – worst case – take some legal action.
Just speculating here that maybe with all of these calls back and forth you burned up your 3 certifications with the maneuvering (see DCAS 4.7.4). I’m not sure how this could have happened though. Not all of it was about being pulled from a list – and it is different agencies with different tactics (DP-72 vs. pulled from the list).
Unless the list was somehow extended – I guess it’s over for this round. But I recommend you continue to follow up to see how they could have made that mistake of setting you up for a permanent position and then taking it away. That sounds infuriating to do all that work and then missing out.
Hope something here helps – maybe one of our readers has more insight and can offer something.
Well, good luck! – Chris
Hello,
I am on a competitive civil service list. I call the DCAS 212 number and it tells me my list number and the date the list was established, but how do I find out what number they are up to on the list? I could not find it under city certifications on the chief or opendata.
Thx !
Yep – that’s a hard one for me too.
It seems that The Chief has some inside scoop on it because they can identify when an agency calls, how many they’re looking for, and what numbers they are pulling from.
For example, here is one from a recent Chief:
“ADMINISTRATIVE LABOR RELATIONS ANALYST – 52 eligibles between Nos. 6 and 81 on List 9049 to replace 1 provisional at Office of Labor Relations.”
That’s pretty specific. I couldn’t even get that from my agencies even when I was looking to fill my open positions 🙂
Anyway, if anyone else can help please chime in here!
Thanks and Good Luck! – Chris
hi,
I recently received this letter from NYC agency after being listed and participating in two hiring pools.
“You were considered under Rule 4.7.1(c) (1 in 3) but not selected for appointment or promotion to three separate vacancies in the Subject Title. (You may have received only one interview in connection with consideration for multiple vacancies.) The ineligibility applies only to the agency named above. You can be recertified to the agency only upon the agency’s approval; you must send a written restoration request directly to the hiring agency. ”
Anyone ever receive this and is this kosher? My only interpretation is that interviewed too much who knew you could be disqualified for that?? All advice welcomed. Thank you for your consideration.
Hi,
It does look like that is legit. But I’m no lawyer and not so sure how to interpret it.
So, under NYC rules 4.7.4. Limitation on Certifications it says “No name shall be certified more than three times to the same agency head for the same or similar position unless at such officer’s request. However, only those who have been actually entitled to consideration for selection shall be charged with certification.”
So a few things to me. I’m not sure what “certified more than three times to the same agency head…” means and where “only those who have been actually entitled to consideration” fits. Are you “certified” by being called? Does being called mean “entitled to consideration”?
It does say you can send a written request to the hiring agency to be “recertified” to the agency…
I know that didn’t help much. There is an attorney that has a video that talks about this. I never used him but seems like he might be able to answer it better if you have more questions.
Thanks and Good Luck! – Chris
Hi
Are there any books on promotional Exams, Rule of Three? Can they simply listen to each candidate without taking notes or keeping a scorecard? Every time I have been interviewed no one took notes or kept score, they simply pick someone. I have a question: There is one candidate left on a promotional list. There is an opening, and an interview is given. There are 5 fire commissioners, 1 is considered the Head Fire Commissioner and breaks any ties. There is an opening, and an interview is given. There are 2 yes and 2 nays, a tie. The head fire commissioner abstains therefore the candidate is not promoted. That doesn’t seem legal.
Hi,
Many of my links have gone dry, but as far as civil service lists, still legal. If you want to speak to someone about the rule there is an attorney who specializes in this stuff. I don’t know him nor have I used him, but he’s been around a while and may be able to explain it better than I can.
Good Luck! – Chris
I’m on a promotional list and have been called and interviewed for a position 2 times, if I get called and interviewed a 3rd time, would my name be removed from the list?
Hi,
I don’t think it works that way. The 1 in 3 rule requires them to interview 3 candidates and then pick one. For example, let’s say you are number 2 on a list. They would call 1, 2, and 3. If they hired number 3 and had additional openings, they would then call 1, 2, and 4. If this time they picked number 1 and had another opening they would call 2, 4, and 5. Basically if you’re qualified for the position, they should still call you.
The question becomes why they aren’t selecting you. Maybe the others have a specific skill they are looking for. Maybe they’re trying to reach a particular candidate.
You may want to ask at your next interview if there is a particular skill or task they’re looking for and see if you can adjust your response to accommodate it (as long as you can do that skill or task).
As far as being removed just because you were called multiple times, I don’t think that is the case.
Hope this helps and Good Luck! – Chris
My question is the one in three rule what if I’m number one and two and three are not on the list but number one is and they pick number three would that be discriminating after having two interviews and they pick number three
Hi,
I can’t say it is discriminating, it’s just legal and annoying.
Good Luck! – Chris
Hi, I currently am employed for an agency in which I took two tests for higher paying jobs within. Both of them has sent me letters stating I was considered and not chosen due to section 4.7.1(c) which we all know if the 1 in 3 rule. At this point I am starting to believe that they have given this excuse to not hire me and I don’t know why. Can one take legal action in my case or is there no getting around this 1 in 3 rule. Thanks
Hi,
Unfortunately there are a lot of concerns with this rule but it continues to hold. Unfortunately most of my links to the union and some county sites have gone dry. The rule is still unpopular but also apparently, still legal.
Good Luck! – Chris
Hi me and 3 coworkers took a civil service test for a promotion at our plant. 2 of us passed 1 failed. I was obe of the passing scores and the other retired I was never interviewed for the position and they changed the job and brought back the retired guy to work the new position as a part time job 16 hours a week is this legal or do I have any recourse. Ive been told because there were not 3 passing scores they can do what ever they want
Hi,
Sorry for the delayed response. Although I couldn’t find the rule I do think not having 3 candidates does let them off the hook. You could check directly with DCAS.
Unfortunately I think they can change the job and bring him back. Unless he has a “211 waiver” his annual earnings are limited to $35,000. 211 waivers are hard to come by so he is probably limited at the $35k. If he earns any more than the provisions of section 212 will kick in and his pension will be suspended for the rest of the year.
Not much help but Good Luck anyway! – Chris
Hi ,
I have a question,I took a promotional civil service plaster supervisor,
I’m the only one on the list .so hey told me that the list cannot be certify because of the rules one of the 3 .
It’s that correct.
Thank you for you answer.
Hi Pasquale,
I never heard of that before, but it looks like it might be legit.
Under Rule 4, Section 4.7.1(c) : “Appointment or promotion from an established eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the commissioner of citywide administrative services or the head of the certifying agency…”
Followed by Section 4.7.2(c): “When an eligible list has been in existence for less than one year and contains the names of less than three eligibles willing to accept appointment, and a new list for the same position or group of positions is established, the names of the eligibles remaining on the old list shall have preference in certification over the new list until such old list is one year old. During such period such names shall be certified along with enough names from the new list to provide a sufficient number of eligibles from which selection may be made.”
That implies that you probably need at least 3 to choose from. But that doesn’t mean your existing position doesn’t go away – it just gives you preference (whatever that means… are you at the top of the list?)
There are several more references in those rules, so it does look like it is probable.
Remember, I’m not HR, Talent Management, or a Lawyer so you should check with your HR, or if they are the ones saying it, check with DCAS – email: LMACustomerService@dcas.nyc.gov
Good Luck! – Chris
Hi Chris!
I took a civil service exam in 2019 and have received countless canvas letters sense then. I replied yes interested in all of them and have not received anything else. No interviews or anything. I send my resume in with the letters and still nothing.
I received 3 canvas letters on the same day the other day and I’m hoping this will be it but I’m trying not to get my hopes up because no one seems to call me for an interview.
Is there anything else I can do to better myself chances of getting an interview?
Thanks!
Hi Jessica,
Not much you can do unless you have a contact at the canvassing agency where you can see where they are at. It’s probably related to the intermittent work schedules that are still in effect for some employees. I spoke with someone today (that works for another agency – not DCAS) who only goes into the office one out of every three weeks. The rest of the time is remote. So I’m not sure how each agency is handling their HR staff and processes while we’re still in a Covid work schedule environment.
You could reach out to DCAS with your questions – maybe they can shed some light on what’s going on: phone (212) 669-1357 and/or email: LMACustomerService@dcas.nyc.gov
Glad you’re getting some interest though!
Thanks and Good Luck!
I was hired for NYC in 2019 as provisional. On my first day, meeting with human resources, I was thrown a packet and told to pick a civil service test and take it. There were no offerings for my specific job, so I took the test closest to my duties. Finally in 2021, I was place on the list, but now my question is, can my current agency pick me up for that title and transfer it to my current job?
Hi,
I’m just taking some guesses here, so bear with me… I’m presuming that the civil service tests that were presented were supported by the agency – just because a job has a civil service title doesn’t mean any agency has it available. For example, NYC DoITT has some problems with the Radio Repair Mechanic title. They opt for the Radio and Television Operator title because they can pay them less and get similar (but not the same) work.
But, if they accept the Civil Service Title you can have a different in-house title. This happens all of the time and is regular practice. We once had an “executive secretary” in the office but she had a civil service title of Clerical Associate. The commissioners had “executive secretaries” that were Principal Administrative Associates. Even the commissioners had civil service titles, like Computer Systems Manager or Administrative Staff Analyst.
Basically, the civil service test will get you in as a permanent, and that’s a good sign that they gave you a list. Some managers like to hire provisionals and keep them there because they have little protection from the union and can be fired more easily if there is a falling out between the boss and the provisional…
So, if they are referring to you, for example, as a project manager at the job, but you took the Administrative Staff Analyst’s exam and became permanent, you can still be considered a Project Manager because many of the tasks are similar – even though there are several Project Manager titles (Associate PM, ACPM, PM, etc.).
The agency could mess around with pay if there are big differences. Or they can just keep that title for your fallback title and keep you a provisional in the higher paying title. It sounds that they just want to get you in a permanent title because of the crackdown on provisionals. If there is any layoffs, provisionals go first.
The main thing is to become permanent and, hopefully, be satisfied with the pay.
Hope this helps and Good Luck – Chris!
Hi Chris
I had an online video interview more than 3 weeks ago. It seemed that I didn’t really satisfied interviewers because they needed certain experience with certain systems. They said they’d notify me about their decision. I haven’t heard from them since. Are they actually obligated to notify candidates who were interviewed? I know if I had been chosen I’d have been already contacted but it’d be nice to have any response from them. Should I emailed them or is it something normal?
Thank you
Hi Alexey,
It wouldn’t hurt to follow up with an email.
There’s no real obligation to notify you of their decision but it would be nice (and the right thing to do) if they did.
The agency is probably very busy so a gentle reminder never hurts. And I wouldn’t say that you haven’t been chosen yet; the agencies move very slow – even if things were good (no pandemic issues, budget challenges, etc.)
So, send out the friendly reminder and Good Luck! – Chris
Who can you sue when they use this rule on you, not once but twice?
Good question Ralph.
I don’t know your specifics, but I suppose they can do this with the “right” variables. For example, if you have the same score as a large group of them, they can keep moving down the list, keeping you as one of the three. I think it’s lousy myself. I’ve been a victim of it, too. On one particular list I was number one – and never got a call and never heard back from civil service after several attempts to contact them (this was in Nassau County).
I would maybe start with contacting DCAS. Maybe they could provide an explanation on how that could happen and whether it’s legal for your particular circumstance.
If you don’t get a satisfactory answer, maybe you’ll need to turn up the heat. A quick online search for a NYC Civil Service Lawyer pulled up a couple, like the Sanders Firm and Sheerin Law.
I don’t know either of them nor am I being compensated or anything by them. You’ll have to do your own background checking on them if you want to go that route.
Good luck with it! – Chris
I scored 100 and number 1 on a list. i received a canvas letter, and confirmation of a video interview. 2 days later I sent all required documents. The next day i received a letter telling me that according to civil service rules and regulations, i am being bypassed and my interview resinded. What rule and regulation? Do i have any recourse?
Hi Jim,
There should be some recourse but it’s probably going to take a lot of time, need a lawyer, or both.
I had the same thing for Nassau County. I was number 1 with a 100 and didn’t even get a call. When I contacted Nassau County I received no response.
This was a second time…
I believe they look for anything to deem you “not qualified” or “less qualified” and therefore can bypass you on the list. But I’m not too sure.
For my issue, I absolutely know I was qualified in all aspects – subject matter, experience, equipment, their specific use. I don’t know why they didn’t even bother… I guess they wanted “their guy”.
Well, good luck anyway and keep trying! – Chris
Hi Chris,
I appreciate that you are still replying to questions and concerns after all this time. Your clarifications have been helpful and I was wondering if you could give me some insight on my situation.
In the spring of 2019, my list was published and I was placed within the top 30/600 (the 4th “highest” score but there were multiple people with the same score, if that is helpful for context). I don’t currently work in an agency (thus, no idea what’s going on on the other side) and was banking on this exam to help me transition into a city career… but with COVID-19, I truly have no sense of a timeline of when anything might happen or if anything will ever happen.
I know it’s a unique situation and you don’t have concrete answers, but I’d truly appreciate it if you can share any guesses on how you think the pandemic is affecting the interview process. I’m trying to figure out if I’m just now waiting for a call that won’t happen within the 4 year list expiration date because of COVID. Do you think I’ll eventually be interviewed or should I start working on a different career plan?
If more context is helpful, I’d be more than happy to expand. I haven’t been able to find anything related to this topic online and it’s been an isolating process with no one to turn to. Any insight at all would be so helpful.
Thank you!
Hi Alice,
I apologize for the delayed response. I’ve been inundated with questions and have been having trouble keeping up.
When I was looking to come to the city from the private sector, I felt the same way. It is very hard from the outside to get inside agency information – but it’s not necessarily a whole lot better from the inside. When I’d complain to my boss about the slow process, he’d reply “the wheels of the city turn very slow, but they do turn”. He was right. Things did eventually move.
As a matter of fact, before I worked for the city, I was waiting for quite a while for my call just to get a provisional position. I actually didn’t think anything was happening, so I went looking for other opportunities in the private sector. It was very close. When I was finally offered the city job, only 5 days later I received a nice offer from a private company. But being I did get the city job, I declined the private sector job, and the rest is history.
I would recommend starting with DCAS. You can contact them via phone or email – contact information is here. They would be your best bet to get answers – if they have any to offer. Right now it’s unclear what the city budget situation will do to any hiring. I would take with a “grain of salt” any general statement that “the city won’t be hiring”. Although that may be generally true, if they need specialty help or become especially shorthanded where it’s impacting agency operations, they’re going to hire.
If you don’t get clear answers from DCAS I’d recommend you move toward your alternate career plan until things loosen up. If you want to work for the city I wouldn’t want you to give up – it really is a great place to work plus the benefits, and, of course, they still have a pension plan…
Hope things loosen up soon and Good Luck! – Chris
I received a canvass letter and sent my credentials as per the directions. I am a paraprofessional and hold a certification in the the education arena. The position in a school district is looking for a paraprofessional with personnel experience. Although I don’t have exact HR experience, I have a decent score a degree cum laude, certification and basic training and experience in office procedures, do you think I’m still a candidate. Or will they overlook me due to lack of HR experience? Also, do they offer training of any kind once hired
Hi Burgess,
I apologize for the delayed response – I’ve been inundated with questions and have had trouble keeping up.
I’m glad you sent in your credentials! Many times, employers ask for the world – lots of credentials, advanced degrees, specialized experience, etc. Makes it intimidating and gives you second thoughts on whether you even have a chance.
Hopefully by this time they’ve maybe interviewed and even hired you!
If not, I can’t say if they’d overlook you. It would depend on the other candidates; their credentials and experience. But, like a surfer waiting for the wave, you might be in the right place at the right time. Perhaps there were candidates with less experience than you. Or no degree or certifications. Or they were qualified but now are no longer interested in the job; they found something at another agency or in the private sector. As long as you meet the basics and show a desire to learn and move forward, you may just get that chance. Just be ready if the call comes.
As far as training, the city provides limited training. There is some, most is on-the-job. Most of my additional training I’ve done on my own at my own cost. I always had trouble finding out any reimbursement options. When I applied for any degree or certificate programs I was always declined for some reason. So I just did it on my own. It’s important to keep your skills sharp – in both the private sector AND the public sector.
Keep moving forward and Good Luck! – Chris
I hear an awful lot about a “BROKEN” list. It is stated that the list is broken and they can reach/hire any person they so choose. Do you have knowledge of what the term “BROKEN” or if this type of hiring is legal?
Thank you
Hi Andrew,
I never heard of that term “Broken” being used and I don’t know if that would allow them to ignore the one in three rule.
You may want to contact DCAS – I would even bring this to the commissioner’s attention… it doesn’t sound right to me…
Good luck! – Chris
Today is the first time I received the Rule of 3. I did some research and did find out at https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=253660&version=253947&application=ACROBAT
What’s the rule when they have two separate list for a specific job? Promotional list and open competitive list?
Hi Dave,
Good question – I’ve always thought that the promotional list would take precedence over the open competitive list, but I haven’t found anything that says that. The best I found was in NYC rules 4.6.6 (b) “Appointments or promotions shall be made from the established list most nearly appropriate for the position to be filled, as determined by the commissioner of citywide administrative services”. Being that both a Promotional as well as an open competitive list could be both “established”, it seems the the Commissioner of DCAS could select the list she deems “appropriate”.
If I find more info I’ll let you know – or if a reader can provide factual details, please reply and let us know.
Thanks and good luck! – Chris
I’m taking the supervisor carpenter test, (promotional), in January. Can you recommend any study material for that exam?
Hi,
Maybe this study guide would be of help: Supervising Carpenter. There’s a Foreman Carpenter study guide that may be of help too.
Maybe some of CSJNYC followers can recommend some materials or information?
Good Luck! – Chris
If an agency decides to pass over you and promote one and then does it again at a later date, then you have been passed over twice. How many times can they do this?
Hi,
Unfortunately as long as they follow the 1 in 3 rule, they can keep passing over you.
For example, if you got a 100 and were number 1, and someone else got a 95 and was number 2, and 20 people got 80 and were 3, 4, 5, etc. they could keep hiring the people with the 80 because they would always move up into the number 3 spot as they were hired – or eliminated due to lack of qualifications, experience, or something.
I think you should have been called in for an interview though – I’m experiencing that now with another exam where I’m number 1 but I haven’t received a call for an interview.
If you are working for that agency I think you may want to address this with your boss – if they wanted to keep you it seems that they can get you off the list. But, if you’re in a different title, then you’d need to be moved into that title and then taken from the list. Not an easy or straightforward option.
Good luck – Chris
Hi,
Aren’t civil service examinations held primarily to get rid of supposed “nepotism” that exist within city agencies so that those who seem “least favored” but can be “more qualified” are able to get a fair shot at promotional opportunities? If so how is it that there really isn’t anything set in place to insure that the process regulations for “fairness” are upheld? It’s been my experience and more so that of others I ask these questions. Currently there are eligible folks on a list that have been passed over and the agency has been allowed to hire provisionals…how? It just seems so unfair to me that leaving this agency seems more appealing then trying to fight for your “right”.
Hi Dexter,
You’re absolutely right – the exams are supposed to get rid of nepotism and favoritism – or at least reduce it. Unfortunately there are ways to work the system. I think generally in NYC they try to do the right thing especially at the DCAS and agency HR level. But agencies and their divisions, bureaus, and other “teams” can sometimes “work around” people. I’ve had this happen several times in my career. I was interviewing for one agency where there was a salary “window” and I know that all of the others in that title were getting close to the top salary. But they lowballed me with offering the low end starting salary – many dollars lower than what I was presently making – and they knew it. I know that they had their eyes set on someone else, even though I know I was the most qualified and experienced. I discussed somewhere in the blog about one of my stockworkers going to an interview at another agency just to be told that they will only be hiring “their” people. NYC is far from perfect. But some of our neighbors are just as bad or worse. I’ll be doing a post on Nassau County where you don’t get called even if you’re number one… I don’t know how that’s possible either.
And fighting, I agree – it might be easier to leave than to prove your point. Sometimes you’ll end up with an angry boss who “had” to hire you, co-workers who think you only got the job because you were the “squeaky wheel”, among other similar gripes. But, on the other hand, you might gain respect because you were able to stop a unfair and lousy hiring process…
Best of luck!
Hi,
I have been with the city going on 19 years in November. I worked with the same agency Health and Hospitals, until October of last year. None of my previous required an exam. However, this one did and I missed the testing deadline. My position is considered a provisional one. So, now I am concerned about how this will impact me moving forward. Any suggestions on what can be done to protect my job;as well as years of service.
Hi Dee,
The only thing you can do now is to see if you can get yourself into a fallback title unless you have a permanent title already to fall back to.
It will also depend on the list size and how many get called off. So, if your group in H+H holds off calling the list and it becomes exhausted, of if the candidates left are unqualified, you might be safe – until next test.
The other thing would be to look for exams that could be used to fall back to – just in case. You’d have to check with you HR to see if they would support that idea. For example, if you missed the PAA test maybe they would support an Associate Staff Analyst as a fall back, or perhaps Clerical Associate, depending on the functional need of your title…
Good luck!
I was wondering if anyone had any knowledge regarding reinstatements and preferred lists. Is a city employee allowed to transfer to a different city agency (if there are no eligible vacancies in their former agency) following reinstatement to a preferred list? I’m aware of the preferred list time period of 4 years, but if your title is eligible for placement in all agencies, how would that work for the employee? Thanks!
Hi ryn,
It seems that reinstatements and preferred lists are covered through NYS Civil Service Law section 81 and are referenced under Rule VI of the personnel rules of the City of NY, section II and V.
Although it doesn’t seem to be referenced directly, it doesn’t say you can’t transfer to another agency. Under the NYC rules, section 6.5.4 both (a) and (b) speak on “… a person’s former position, or any comparable position in a comparable salary or salary range …” so it could be interpreted that a “comparable position” could be in another agency.
Other readers that have any thoughts are welcome to chime in – as I always disclaim, I’m not in HR or Personnel and I haven’t had experience working off of Preferred lists so you might want to contact DCAS for more details.
Thanks!
Is an appointing agency required to give all interviewees an equal chance at a position from the start?
Or can they determine that they want to promote a certain person from the get-go but follow the rule of 3 as a formality. Basically, the other interviewees never have a shot at the position. They are just there to satisfy the letter of the law. Sometimes, its implicitly made know that that’s what the situation is.
Basically, my agency has done this time and time again. I just lost out on a position to a candidate who albeit a good professional, has less length experience, less breadth of experience, less academic degrees in the field, a lower score (85 vs my 100 but still within the rule of 3), and less contacts in the industry which would benefit the successful candidate. I also knew both interviewers personally, especially having worked well with one of them twice before, and I blew the interview out of the water. I spoke with my former boss/interviewer and he agreed with me on everything, and wanted to hire me on the spot. To be fair and professional, both interviewers said they wanted to hire both of us given the chance, but the agency suits opted for the other guy, saying he was doing the work already (which may have been construed as out of title work- a different issue).
I don’t think I can just let this go without filing a grievance or possibly more. Thoughts?
Hi Perfect,
Well, all interviewees should have an equal chance, but I know that’s difficult to prove. Some places are blatant about it. One of my stock workers went to an interview at another agency just to see what his options were. He was high on the list – in the top 5 from what I remember. Right from the start the agency person said “thank you all for coming but we are only hiring our own people today regardless of your list status” and sent the rest home. He really didn’t want to leave so he never took it any further.
The city isn’t the only questionable municipality. For laughs I recently took a test for a job in Nassau County and I’m #1 on the list. It was for one job and the person whose job it was taking the test with me. It seemed the other candidates knew each other and were joking about taking his job… Other than receiving my notification of my list number, I haven’t heard a peep. I tried to contact Nassau County Civil Service to see why I haven’t been called for an interview but get no response. I think I threw them all off – not expecting some “outsider” to rank like that. Or could it be that they wrote me off as a “no show” to an interview that never happened. Or maybe that I wasn’t qualified (not to toot my own horn, but I am extremely well qualified for the job). I’ll be writing about that next month…
Anyway, the only way to resolve it, or at least get attention to it, is to call them out. Unfortunately, they will probably not appreciate it. But, as the saying goes, “The only thing necessary for the triumph of evil is for good men to do nothing.” Maybe a bit over the top – but true.
So, good luck with any grievance and I hope for the best! – Chris
Hi Chris,
I am in PEF Union. I was one of the top three candidate for a position. They interviewed five from the list. The interviewer called me the next day and told me that he is interested in hiring the fifth person in the list who is currently acting and he cannot do it because of the “rule of three”. And he told me that if I am interested in denying the position. Is this legal?
Hi,
I would think that a request like that would be unethical at minimum and is probably not legal – but I’m not an attorney so I can’t say for sure… I guess theoretically he can ask – but if you are fully qualified and somehow bypassed I think he would have some explaining to do. But only if he is called out on it.
I’m not too familiar with the PEF but I would suggest contacting your shop steward or your local’s labor relations representative to discuss this. It’s not your problem that his number 5 person didn’t score higher and not your fault that the system was run on provisionals. I’ve warned my own staff of the risks they face when situations like this occur. And you’ve worked hard and earned this opportunity – to give up any or all the time you spent studying, applying and paying to take the exam, attending, passing, and scoring high enough on the exam – is not fair at all.
If you’re called make sure you watch that they aren’t unreasonable with the interview – fair interviewing, not looking for faults to get a way out.
I had a stock worker experience a similar thing. He went to an interview at another agency just to see what they had to offer. The person there told the interviewees that no one here would be hired – they were just called because they had to call the list. My stock worker wasn’t really interested in leaving, my agency was just dragging its feet in calling the list. So he never followed up. But I wonder how that would have went if he did… It worked out for me though – it would have hurt to lose him.
So, keep your chin up and don’t give in if you want the job – and get some support from the union or at least notify them to have them on standby. After the fact may be harder to do then before they bypass you.
Good luck!- Chris
Thanks a lot Chris
I would for sure have said no I am not denying the position in response to a question like that. That is ridiculous and needs to be called out. Besides, saying no may DQ yourself from other possible positions.
Hi Chris,
I read through your examples hoping to find a situation similar to mine but was unable to do so. In the case of my civil service exam, nobody scored 100, one person scored a 95, no one scored a 90, two people scored an 85, and about a dozen people scored an 80. In the case of my civil service exam, nobody scored 100, one person scored a 95, no one scored a 90, two people scored an 85, and about a dozen people scored an 80. So the first question is, although for this particular location nobody scored 100 or 90, other locations with in this agency had people who scored 100 and 90. So in this case, does the one-in-three rule apply to the 95, 85, and 80? Or does it apply to the three highest scores possible on the exam that people in other locations through this agency received? If the rule applies to the 95, 85, and 80 candidates, here is my second part; five people were given the title from the exam. The person who scored 95 was not called in for any interviews by personnel or human resources. One of the people who scored an 85 got the title and the other didn’t. And four people who scored an 80 out of the dozen got the title. Does the person who scored a 95 and was not given an interview opportunity have any recourse? The same question for the second person who scored an 85 if they weren’t given an interview opportunity.
Hi Sue,
So, for the first question, the test covers everyone in the city. They don’t break it down by agency. So you are correct that the one in three rule applies to the highest three scores on the list – not the agency or the location within the agency.
Sometimes agencies look through the list at their candidates and see where they are. Then they decide whether to call the list sooner – if most of their candidates scored higher – or later – if their candidates are lower on the list. Then they’ll go through the interviews to sort out the qualified and willing candidates from the others. This cuts the list down even more. You’d be surprised how many candidates change their mind because they got a job in the private sector because they didn’t want to wait, or how many external candidates will blatantly tell you what they will and will not do. Then you have the other agencies doing the same list reviews, reaching their candidates or backfilling because one of theirs left for another agency when they got called off the list, etc.
As far as you second part, I do NOT think the people that were not given the opportunity to interview have any recourse. That’s because (using your example) the 95 would be the #1 candidate, then the two 85’s would be next. One of the 85’s was selected, so that leaves the 95 = 1, 85 = 2, and ALL of the 80’s are #3 (see example 3 on page 27 for this CSEA document). And remember – this is for all candidates in the city, not just your agency or just your section/location.
Remember my disclaimer – I’m not in HR or DCAS so you might want to check with your HR. If you’re uncomfortable with speaking with them then maybe you’ll want to speak with your shop steward or the officers of your local. Of course, if it seems questionable and a job is on the line, maybe some legal counsel is in order. But that is a hard-fought battle and not likely to have a favorable outcome.
It’s not very fair – the unions don’t like it – but it still works better than nothing at all. And once you’re a permanent, you’re in pretty good shape. Just getting there is the battle…
I know it’s confusing – and I may still be off so double check. But I hope it helps.
Good luck to you and/or the people you’re asking for…
Thanks – Chris
I believe the civil service rules are flawed. Any Joe Smo can take the test and get a 100. You’ll get called for the interview and have no ounce of experience or zero personality and now the employer has to hire from a choice of 3. I scored a 90, Have years of office experience and am very outgoing and personable. A few people have wanted to hire me but couldn’t because they were still in the 100’s.
I agree with you. That’s why the work is so inefficient and i would say over 50% of the employees don’t know how to read and write.
Been working as provisional for 2 years along with many others hard working and performing provisional colleagues. Most of us although scored 100 ended up on the bottom of the list based on social security number. We’ve been working with a fear of getting fired any day because we are not reachable. This is a pure abuse. In a meantime remaining permanent employees are literary sleeping on their desks.
Hey Chris, do I have to be notified if I have been passed using the 1 in 3 rule? In other words if I am #50 on a list and #54 has been appointed should I have received any notification? Also can the agency hire seasonal employees after appointments were made from the list while the list is active?
Hi,
I don’t think so. I think you would only be notified if you were called in for an interview and not hired – which I think you should have been called in for an interview if you were 50 and they got to 54…
If that’s the case, I would reach out to DCAS to see if there was a problem getting to your list number for some reason – and via email is better than calling (I always recommend a paper trail to help keep things legit). DCAS contact information is here.
I don’t know enough about seasonal employment to answer that – if it appears that they are doing this to avoid hiring full timers or permanent part timers then that’s probably something the union would want to know about…
If I find out more on seasonal hiring practices I’ll report back – and if any of our readers can shed some light on it I’ll post the responses here…
good luck! – Chris
Thanks Chris, I will definitely take your advice and follow up with DCAS. Thanks for looking into the seasonal worker issue.
Hi chris. I am a provisonal manager I passed the Housing manager test. How do I know if DCAS certify the entire list of 168 candidates or cut the list off at a certain number. Also does the list stay open for 4 years or can be closed after 1 year. Thank you
Hi Drew,
DCAS would normally certify a full list – I’ve never heard them stopping a list at a certain number. So if someone passed they would probably be on the list. Verification of qualifications would take place at the hiring agency.
Now publishing a list is another question. You now have to search through the NYC Open Data portal. It works, but it’s clunky.
Normally a list is good for 1 year and DCAS has the option of extending it for up to 4 years. It usually stays alive for the 4 years but I’ve seen times where the list was exhausted, no more viable candidates, and the agencies requested the list to close so they can either get a new test scheduled or hire provisionally.
Hope this helps! – Chris
Hi Drew,
A little more update… it seems that an agency can request only a partial list – from NYC Open Data regarding Certified Lists “The Certification may contain part of a list, the whole list, or multiple lists at the request of an appointing agency, to fill vacancies and/or replace provisionals.”
So I guess a partial list is possible – not really cut off; just not provided to the agency. This probably makes sense for the larger lists like police or firefighters. Larger lists may be cumbersome to use so it makes sense to use portions to fill academy seats – just speculation…
thanks! – Chris
I’m working in a provisional manager title in which the list has recently been released. I scored #1 on the managers test. My agency usually “certifies” provisionals in place. I do not wish to certify in place and would like to interview for other vacancies. Is this allowed?
Hi Janine,
If you took an open-competitive or promotional you should be called off the list for other jobs. It shouldn’t be a problem for your agency – but depends on the political climate…
Some agencies get “funny” if they think or know you might want to leave. Some of my colleagues from other agencies almost wanted me to take a “blood oath” that I wouldn’t say anything when they wanted to check out other agencies out of fear that they would be “blacklisted” and “shunned” – seriously!
My agency encourages opportunities and some managers encourage the personal growth (although it may sting a bit when they leave). But I’ve seen people transfer, leave, and come back to the agency without issue.
If you took a QIE you may have to stay where you are but I don’t know 100%.
But, generally, it should not be a problem. Good luck and hope you find a great spot! – Chris
What will happen if a provisional employee declined an offer from another agency hiring pool for compensation reasons? Thanks
Hi,
Under DCAS Rule 4 you’ll “generally” be removed from the list. But under 4.8.5 you can request to be restored to the list by writing to DCAS and request it. I say “generally” because it is possible that they may keep you on the list without requesting (see paragraph ‘c’ in 4.8.5) but I wouldn’t just assume that. Local 2627 has a little explanation of the procedure too. It’s ok to reject an offer due to inadequate compensation, so don’t let that concern you (if it does)…
Good luck! – Chris
I scored number 4 on a promotional list however I was tied with the number 3 position so we are in the same band both with a score of 80. My employer called the persons in positions 1,2 & 3 for an interview and did not call me. Do I have legal recourse if I am not called for an interview? Does the law require that one in the top 3 be hired or co sidered and interviewed for hiring.
Thanks
Hi,
No recourse yet… sounds like they’re following the rules. They called three in and only need to pick one. If no one is found to be qualified or if they are otherwise ineligible then it would be your turn. They don’t have to call everyone in who has the same score, they just have to follow the sequence of the list and call enough candidates to have a chance at filling the position.
The city has generally been good with the procedure and most agencies have the hiring manager justify why a candidate was not selected. I don’t know how you would be able to access that information, but I’d hold back on doing any Freedom of Information Law (FOIL) request or any other legal action before exhausting other methods (contacting the agency HR, DCAS, etc.).
But for now, unless you have information to think otherwise, things sound on the up-and-up.
Good luck! – Chris
A bit more on the Rule of Three:
Prior to 1900 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as “the rule of the list.” This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission. In 1900 the “rule of one” was struck down by the Court of Appeals as unconstitutional. The Court ruled that “if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final … then the civil service commission becomes and is the actual appointing power [People v Mosher, 163 NY 32].
This decision prompted establishment of the so-called “rule of three,” currently set out in Section 61.1 of the Civil Service Law. Section 61.1, as earlier noted, permits the appointing authority to select from among the three candidates who stand highest on the eligible list and are interested in the appointment. The rule of three was held valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.
In applying the Rule of Three, tie scores can allow the appointing authority to make its selection from among far more than three eligibles. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 eligibles will be deemed “reachable for appointment.” On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority could only select from among the “top 60” eligibles and may not consider either of the two lower scoring eligibles for the appointment.
Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a “mandatory list” — a list consisting of at least three qualified candidates willing to accept the position.
In contrast, the “rule of one” is mandated in situations involving reinstatement from a preferred list. Where a preferred list is certified, the appointing authority must appoint the most senior individual on the list willing to accept the appointment or keep the position vacant.
Although courts have ruled that a civil service commission cannot mandate a rule of one, the appointing authority itself may decide to be bound by such a rule. This has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise discretion with respect to selecting candidates for appointment.
Thank you for providing more detail and insight to the Rule of Three. It is confusing to a general hiring manager like myself, difficult to explain to provisionals awaiting to be picked up by an agency, and even more difficult to explain to persons waiting to be called off a list that aren’t familiar with the civil service process at all! – Chris
What happens if an agency is hiring for two positions simultaneously? Do they select one candidate first from the rule of three, then re-canvass and go down the list for the second position? or do they select two candidates from the initial rule of three list?
Hi Jane:
It gets tricky and I’ll try my best… It also matters what their score is and where they are on the list…
Let’s say first, we have 5 candidates for the two openings. They all scored 100 and were sorted by DCAS and are numbers 1, 2, 3, 4, and 5. They are all qualified and willing to take the job.
Normally, a large pool of candidates is called, even for one position. So for these two positions, several might be called to provide a large pool.
Back to our story. Let’s say an agency called them and numbers 1, 2, 4, and 5 showed up (no number 3). Number 3 is out now for inability to show (but they could be called for a future opportunity if they properly notified the calling agency and/or DCAS).
Number 1 is interviewed, found qualified, and accepts an offer. Now it’s between 2, 4, and 5.
Let’s say 5 is a provisional already working in the agency and they want to keep them. To the best of my knowledge they can bypass 2 and 4 and pick up 5. Candidates 2 and 4 can be added back to the pool for either future openings or to be called by another agency.
It gets a bit trickier if the scores are different. For example, if Candidate 1 got 100, Candidate 2 got a 95, and Candidates 3 through 10 got 90, then Candidates 3 through 10 could be appointed bypassing 1 and 2.
The CSEA has a good “primer” that gives several variations that explains how traditional scoring and “banding” could be used to sort the lists.
Hope this helps – Chris
Thanks Chris but I wanted to ask with a specific example that applies to a friend of mine. Let’s say there are two positions open simultaneously. On the list, there are a total of three 100 scoring candidates who are all qualified and willing to take the job. Do they select both candidates from just these three 100 scoring candidates? Or after the first candidate is chosen, would the agency have to consider the 95 scoring candidate(s) in order to have a minimum of three candidates for the second position?
Hi Jane:
I can only really speak from my experience and I would say yes – they would have to consider the other candidates that scored 95.
When I would be called down to conduct interviews HR usually had many more candidates than there were positions. I think this was to prevent a scenario like you’re describing – where more candidates would have to be called in to provide the 1 in 3. It might be time wasted for the candidates on the lower numbers, but there were many times where candidates, when interviewed, were not qualified or were not willing to perform the tasks of the job as described. So we went through candidates rapidly.
At another agency, I recall calling candidates myself as well as conducting interviews. I would later have to fill out paperwork listing a minimum of three candidates and explaining why the one I chose was selected over the others. I suspect the agency HR we’re discussing would have similar requirements to justify with DCAS – as all personnel have to be followed through DCAS anyway. There was always a minimum of three required.
If candidates were called and didn’t properly cancel or reschedule and only two showed up, I think the “no shows” can be counted as part of a group of three. That might need some clarification, but I think that’s correct.
So, long story – and my usual disclaimer that I’m not an HR person, just a salty old manager – I think there has to be enough to justify the 1 in 3 even if the candidates have different scores and all are qualified and willing to accept the position.
I think (hope) this was what you are asking… Chris
A 3 in 1 rule can legally allow an employer to discriminate against an employee that they don’t like. Such a rule should be deemed illegal in my opinion. This rule is unfair and it’s still allowed because it serves the purpose that its proposed to serve.