Each agency shall establish an agency employee grievance procedure that must be reduced to writing and submitted for approval to the Office of Human Resources. A copy of the approved agency grievance procedure must be made available to covered employees of the agency. The provisions of the State Administrative Procedures Act apply in proceedings before the State Employee Grievance Committee. At other levels the State Administrative Procedures Act does not apply, but the covered employee has the right to a representative, including counsel. When a final decision is rendered, it must be given to the covered employee or the employee's representative in writing. If the covered employee chooses to exercise the right to counsel, the employee does so at his own expense.
The procedure must provide that all grievances of agency actions affecting a covered employee must be initiated internally by such employee within fourteen calendar days of the effective date of the action and that the agency shall make a final decision on a grievance within forty-five calendar days of the filing of the grievance by the covered employee. Failure by the agency to make a final decision on the grievance within forty-five calendar days after the filing of the grievance is considered an adverse decision, and the covered employee may appeal thereafter to the State Human Resources Director. The internal time periods of the agency grievance procedure may be waived upon the mutual written agreement of both parties. The forty-five-calendar-day period for action by the agency may not be waived except by mutual written agreement of both parties. The time periods for appeal to the State Human Resources Director may not be waived.
A covered employee who wishes to appeal the decision of the agency grievance procedure to the State Human Resources Director shall file an appeal within ten calendar days of receipt of the decision from the agency head or his designee or within fifty-five calendar days after the employee files the grievance with the agency, whichever occurs later. The covered employee or the employee's representative shall file the request in writing with the State Human Resources Director. Failure to file an appeal with the State Human Resources Director within ten calendar days of the agency's final decision or fifty-five calendar days from the initial grievance, whichever occurs later, constitutes a waiver of the right to appeal.
An employee must not be disciplined or otherwise prejudiced in employment for exercising rights or testifying under these processes.
As used in this article, a covered employee may file a grievance or appeal concerning the following adverse employment actions: terminations, suspensions, involuntary reassignments, and demotions. Reclassifications are considered a grievance only if an agency, or an appeal if the State Human Resources Director, determines that there is a material issue of fact that the action is a punitive reclassification. However, reclassifications, reassignments, and transfers within the same state salary range are not adverse employment actions which may be considered grievances or appeals. Promotions are not adverse employment actions which may be considered grievances or appeals except in instances where the agency, or in the case of appeals, the State Human Resources Director, determines that there is a material issue of fact as to whether or not an agency has considered a qualified covered employee for a position for which the employee formally applied or would have applied if the employee had known of the promotional opportunity. For purposes of this article, when an agency promotes an employee one organizational level above the promoted employee's former level, that action is not a grievance or appeal for any other qualified covered employee. Salary decreases based on performance are adverse employment actions that may be considered as grievances or appeals. A reduction in force is an adverse employment action considered as a grievance only if the agency, or as an appeal if the State Human Resources Director, determines that there is a material issue of fact that the agency inconsistently or improperly applied its reduction in force policy or plan.
A covered employee has the right to appeal to the State Human Resources Director an adverse employment action involving the issues specified in this section after all administrative remedies to secure relief within the agency have been exhausted.
HISTORY: 1982 Act No. 402, Section 3; 1988 Act No. 375, eff March 14, 1988; 1993 Act No. 164, Part II, Section 8B, eff June 21, 1993; 1993 Act No. 178, Section 10, eff July 1, 1993; 1996 Act No. 284, Section 4, eff October 1, 1996.