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.
