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Common Questions About the Virginia Grievance Procedure for Public Employees

January 16, 2014 in Articles | MARTIN WREN, P.C. | LEAVE A COMMENT

Common Questions About the Virginia Grievance Procedure for Public Employees

State employees in Virginia can resolve many employment-related disputes through the grievance procedure established by Virginia statutes.  The procedure for such claims has different steps and can be intimidating for employees who wish to file a grievance.   With that in mind, here are many common questions about the Virginia grievance procedure for public employees, as well as some answers to those questions.

What employees are covered by the Virginia grievance procedure?

Generally speaking, all “nonprobationary” Virginia state employees are covered by the grievance procedure.  There are, however, a number of different exemptions that remove certain employees from the procedure.[i]   In addition, many state agencies are not obligated to follow the state grievance procedure, but those agencies have nevertheless enacted their own grievance procedure to handle employee grievances.

The University of Virginia, for example, has established different grievance procedures for employees, staff, and faculty members to utilize.  While some of UVA’s grievance procedures have many differences from the state grievance procedure, UVA’s procedures follow many of the same general steps, with the University President, faculty members, or other University officials overseeing many of those steps in the process.

What employees are exempted from the Virginia grievance procedure?

As explained in response to the previous question, many employees are exempted from the coverage of the Virginia grievance procedure.  Some of the general categories of exempted employees include appointees of elected groups, agency heads, and CEOs of government agencies and institutions of higher education appointed by boards and commissions.  In addition, law-enforcement officers who opt to utilize the grievance procedure established for such officers will be exempt from the coverage of the grievance procedure.  Finally, officers and employees who are exempt from the Virginia Personnel Act will not be covered by the Virginia grievance procedure.[ii]

What are the steps in the Virginia grievance process?

Employees are first encouraged to resolve disputes with their immediate supervisor.  Since this type of relief is oftentimes problematic if the supervisor is the source of the grievance, the employee must present a written complaint to management within 30 days of employee’s knowledge of the event forming the basis of the complaint.

Once management receives a timely written complaint, management must then review the grievance and respond to the merits of the complaint.  At this stage, the employee will have the opportunity to meet face-to-face with management, and the employee, the employee’s manager, and individuals selected by both the employee and manager can attend that meeting.  Both the employee and the manager have the right to call witnesses.

In the event the meeting does not resolve the grievance, the employee can request a grievance hearing.  The head of the employee’s agency is then given five days to make a written determination of whether the grievance qualifies for a hearing.  If the agency head or other qualified officer agrees, the employee will then be entitled to a grievance hearing.

In the event the agency head denies the request for a hearing, the employee can appeal that decision to the Director of the Department of Employment Dispute Resolution. [iii]  The employee then has five days to appeal to the local circuit court if the Director also denies the employee’s request for a hearing.

An employee has the right to appeal a final decision on a grievance matter on the grounds the decision rendered at the hearing was “contradictory to law.”[iv]  Such an appeal is filed with the local circuit court.

What matters can be heard at a grievance hearing?

Employees can pursue grievances related to the following matters:

(1) formal disciplinary actions, including suspensions, demotions, transfers and assignments, and dismissals resulting from formal discipline or unsatisfactory job performance;

(2) the application of all written personnel policies, procedures, rules and regulations where it can proven the policy was unfairly applied or misapplied;

(3) race, color, religion, political affiliation, age, disability, national origin or sex discrimination;

(4) arbitrary or capricious performance evaluations;

(5) retaliatory acts due to the employee’s use or participation in the grievance procedure, because the employee complied with federal or state laws, because the employee reported a legal violation to the government, because the employee has sought a change in law before Congress or the Virginia General Assembly, or because the employee has reported fraud, abuse, or gross mismanagement; and

(6) retaliation for exercising any right otherwise protected by law.

What matters are not covered by the Grievance Procedure?

The grievance procedure specifically identifies seven types of matters that are not covered by the public grievance procedure.  Those matters are:

(1) creating or changing wages, salaries, general benefits, or position classifications;

(2) work activity given to the employee that is a condition of employment or which is reasonably expected to be part of the job description;

(3) contents of ordinances, statutes, personnel policies, procedures, rules, and regulations;

(4) the means, methods, or personnel by which a particular job is to be completed;

(5) job termination, layoff, demotion, or suspension of duties because of lack of work, workplace reduction, or termination of position;

(6) hiring, promotion, transfer, assignment, and retention of employees within the agency; and

(7) relief of employees from duties of the agency in emergencies.

Who is the hearing officer in the event my grievance is granted a hearing?

Hearing officers are selected by the Director of the Department of Human Resources Management, on a rotating basis, from one of two places.  First, the Supreme Court of Virginia maintains a list of administrative hearing officers, and one of the officers on the list can be selected.  Second, private attorneys can apply to be classified employees through a competitive selection process, and those attorneys can act as hearing officers.[v]

Agencies that have enacted their own grievance procedures will likely appoint individuals within that agency to fulfill the hearing officer role.  For University of Virginia grievances involving administrative general faculty, for example, the hearing will be overseen by a panel of individuals, including other members of the Administrative General Faculty.

What powers do hearing officers have in grievance hearings?

Hearing officers are given authority to do the following:

(1) hold hearings to settle or simplify issues;

(2) address and resolve procedural requests;

(3) issue orders regarding testimony or the production of evidence;

(4) administer oaths and affirmations;

(5) receive relevant evidence, and exclude evidence on the grounds such evidence is irrelevant, immaterial, insubstantial, privileged or repetitive proofs; permit rebuttals or cross examinations; rule upon offers of proof; and oversee a verbatim recording of the evidence;

(6) receive and consider evidence that aggravates or mitigates any charge of an agency brought in accordance with certain laws; and

(7) take a variety of other actions that are necessary or specified by the grievance procedure.

What relief can a hearing officer award in a grievance procedure?

Depending on the facts of a case, the hearing officer is able to award the following relief:

(1) reinstate the employee to his or her former position, or, if the position is not available, to an equivalent position;

(2) award back pay that was not paid while the employee was suspended or terminated;

(3) reinstate fringe benefits and seniority rights that had been suspended or lost;

(4) take steps to reduce or lessen the agency decision;

(5) take steps that combine any of these remedies.

In addition to this relief, employees who prevail in a grievance challenging a discharge from employment can be entitled to recover their attorney’s fees unless “special circumstances” would make such an award unjust.[vi]

What information must the hearing officer’s final decision contain?

The hearing officer’s ruling must be presented in written form, and it must contain the officer’s findings of fact in the case and the basis of those findings, including the basis for an award of attorney’s fees.  So long as the officer’s written ruling is consistent with law and policy it will be considered final and binding.[vii]

Can the ruling from a grievance hearing be reviewed?

Yes.  If a party to the grievance seeks review, the Director of the Division of Human Resource Management must determine, within 30 days of the conclusion of the hearing, whether the result from the hearing is consistent with policy.

Can a final decision from the grievance procedure be appealed?

Yes.  Within 30 days of a final decision in the grievance process, a party can appeal that decision to the local circuit court.  Then, within 30 days of receiving the records from the underlying grievance procedure, the court, without a jury, can hold a hearing about the underlying dispute.  The court can determine whether the final decision is “contradictory to law,” and the court must issue a decision in that regard within 15 days of the hearing.  An employee who prevails at this stage can seek an award of attorney’s fees incurred.[viii]

CONCLUSION

The stakes in grievance procedures can be enormous, and it is important that employees who have grounds for a grievance have the information necessary to protect and pursue their rights.  If you are a public employee who seeks a consultation about a grievance procedure matter, please contact Virginia Employment Law Attorney Robert E. Byrne, Jr. of MartinWren, P.C.  Bob has experience representing employees in a variety of employment disputes and he can be contacted at (434) 817-3100 or by email at byrne@martinwrenlaw.com.


[i] Va. Code § 2.2-3001(A).

 

[ii] Va. Code § 2.2-3002.

 

[iii] Va. Code § 2.2-2004(D).

 

[iv] Va. Code § 2.2-3006(B).

 

[v] Va. Code § 2.2-3005(B).

 

[vi] Va. Code § 2.2-3005.1(A).

 

[vii] Va. Code § 2.2-3005.1(C).

 

[viii] Va. Code § 2.2-3006(B)&(D).

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