SB 616 — Relating to employment grievance procedure for public employees

(i) (1) “Grievance” means a claim by an employee alleging a violation, a misapplication, or a misinterpretation of the statutes, policies, rules, or written agreements applicable to the employee including:

(i) Any violation, misapplication, or misinterpretation regarding compensation, hours, terms, and conditions of employment, employment status, or discrimination;

(ii) Any discriminatory or otherwise aggrieved application of unwritten policies or practices of his or her employer;

(iii) Any specifically identified incident of harassment;

(iv) Any specifically identified incident of favoritism;

or (v) Any action, policy, or practice constituting a substantial detriment to or interference with the effective job performance of the employee or the health and safety of the employee.

(2) “Grievance” does not mean any pension matter or other issue relating to public employees insurance in accordance with §5-16-1 et seq.

of this code, retirement, or any other matter in which the authority to act is not vested with the employer.

(j) “Grievance proceeding,” “proceeding” or the plural means a conference, level one hearing, mediation, private mediation, private arbitration, or level three hearing, or any combination, unless the context clearly indicates otherwise.

(k) “Grievant” means an employee or group of similarly situated employees filing a grievance.

(l) “Harassment” means repeated or continual disturbance, irritation, or annoyance of an employee that is contrary to the behavior expected by law, policy, and profession.

(m) “Party”, or the plural, means the grievant, intervenor, employer, and the Director of the Division of Personnel or his or her designee, for state government employee grievances.

The Division of Personnel shall not be a party to grievances involving higher education employees.

(n) “Representative” means any employee organization, fellow employee in the same work unit as the grievant, attorney, or other person designated by the grievant or intervenor as his or her representative and may not include a supervisor who evaluates the grievant.

Fellow employees are limited to serving as representatives for four grievants per year.

(o) “Reprisal” means the retaliation of an employer toward a grievant, witness, representative, or any other participant in the grievance procedure either for an alleged injury itself or any lawful attempt to redress it.

–— (1) An employee shall file a grievance within the time limits specified in this article.

–— (1) The grievant prevails by default if a required response is not made by the employer within the time limits established in this article, unless the employer is prevented from doing so directly as a result of injury, illness, or a justified delay not caused by negligence or intent to delay the grievance process.

–— (1) Untimeliness.

–— Any assertion that the filing of the grievance at level one was untimely shall be made at or before level two.

–— When it is a proper remedy, back pay may only be granted for one year prior to the filing of a grievance, unless the grievant shows, by a preponderance of the evidence, that the employer acted in bad faith in concealing the facts giving rise to the claim for back pay, in which case an 18-month limitation on back pay applies.

–— If a party intends to assert the application of any statute, policy, rule, or written agreement as a defense at any level, then a copy of the materials shall be forwarded to all parties.

–— An employee may withdraw a grievance at any time by filing a written notice of withdrawal with the chief administrator or the administrative law judge.

–— (1) Grievances may be consolidated at any level by agreement of all parties or at the discretion of the chief administrator or administrative law judge.

–— Upon a timely request, any employee may intervene and become a party to a grievance at any level when the employee demonstrates that the disposition of the action may substantially and adversely affect his or her rights or property and that his or her interest is not adequately represented by the existing parties.

–— (1) An employee may designate a representative who may be present at any step of the procedure.procedure as well as at any meeting that is held with the employee for the purpose of discussing or considering disciplinary action.

as well as at any meeting that is held with the employee for the purpose of discussing or considering disciplinary action (2) An employee may not beserve compelledas toa testifyrepresentative againstin himselfmore orthan herselffour ingrievances aper disciplinarycalendar grievanceyear. hearing.

(h)(2) ReprisalAn –employee No reprisal or retaliation of any kind may not be takencompelled byto antestify employer against ahimself grievant or anyherself other participant in a disciplinary grievance proceedinghearing. by reason of his or her participation.

(h) Reprisal.

— No reprisal or retaliation of any kind may be taken by an employer against a grievant or any other participant in a grievance proceeding by reason of his or her participation.

–— A supervisor or administrator responsible for a willful act of bad faith toward an employee or who intentionally works requires an employee out of to work under an improper classification may be subject to disciplinary action, including demotion or discharge.

–— The board shall create the forms for filing grievances, giving notice, taking appeals, making reports and recommendationsrecommendations, and all other necessary documents and provide them to chief administrators to make available to any employee upon request.

–— The parties are entitled to copies of all material submitted to the chief administrator or the administrative law judge by any party.

–— Reasonable notice of a proceeding shall be sent at least five days prior to the proceeding to all parties and their representatives and shall include the date, time, and place of the proceeding.

–— Conferences are not required to be recorded, but all documents admitted and the decision, agreement, or report become part of the record.

–— (1) Any party may propose findings of fact and conclusions of law within 20 days of an arbitration or a level three hearing.

(2) A decision, agreement, or report shall be dated, in writing, setting and set forth the reasons for the decision or outcomeoutcome. and transmitted to the parties and, in a private arbitration, to the board, within the time limits prescribed.

and The decision, agreement, or report must also be transmitted, within the prescribed time limits, to the parties and, in a private arbitration, to the board.

within the time limits prescribed.

–— All proceedings shall be scheduled during regular work hours in a convenient location accessible to all parties in accommodation to the parties’ normal operations and work schedules.

–— (1) TheSubject to subdivision (3) of this subsection, the grievant, witnesses, and an fellow employee representative shall be granted reasonable and necessary time off subject to §6C-2-3(p)(3) of this code, during working hours to attend grievance proceedings without loss of pay and without charge to annual or compensatory leave credits.

(2) In addition to actual time spent attending grievance proceedings, the grievant and an fellow employee representative shall be granted time off during working hours, not to exceed four hours per forgrievance, all grievance proceedings combined, regardless of how many procedural levels are involved, for the preparation of the grievance without loss of pay and without charge to annual or compensatory leave credits.

AAn fellow employee representative shall not allow grievance representation activities to interfere with the assigned duties and responsibilities of the employee.

Fellow(4) An employee representativesor shallemployee notrepresentative bemay permittednot to use a state workvehicle time to performtravel grievanceto representation activities if the employing state agency determines that the representation activities interfere with the assigned duties and responsibilitiesfrom ofgrievance theproceedings fellowor employeegrievance representative.preparation activities.

(4)(3) Access(5) The grievant and an employee representative shall have access to the employer’s equipment for grievancespurposes doesof notpreparing includegrievance accessdocuments subject to statethe vehiclesreasonable ifrules itof isthe outsideemployer governing the normaluse course of employment.the equipment for nonwork purposes.

(3) (5) The grievant and an fellow employee representative shall have access to the employer’s equipment for purposes of preparing grievance documents subject to the reasonable rules of the employer governing the use of the equipment for nonwork purposes.

–— (1) All grievance forms decisions, agreements, and reports shall be kept in a file separate from the personnel file of the employee and may not become a part of the personnel file,file but shall remain confidential except by mutual written agreement of the parties.

(2) The grievant may file a written request to have the grievant’s identity removed from any files kept by the employer one year following the conclusion of the grievance,grievance. except in cases resulting in suspension or termination of the employee.

–— The number of grievances filed against an employer by an employee is not, per se, an indication of the employer’s or the employee’s job performance.

–—  TheThe board shall prescribe rules and procedures in compliance with this article, §6C-3-1 et seq.

of this code, and the state Administrative Procedures Act under §29-1-1 et seq.

of this code §29A-3-1 et seq.

§6C-2-4.§6C-2-6.

GrievanceAllocation proceduralof levels.expenses.

(a)and Levelattorney’s one:fees.

Chief administrator.

– (1) Within 15 days following the occurrence of the event upon which the grievance is based, or within 15 days of the date upon which the event became known to the employee, or within 15 days of the most recent occurrence of a continuing practice giving rise to a grievance, an employee may file a written grievance with the chief administrator stating the nature of the grievance and the relief requested and request either a conference or a hearing.

The employee shall also file a copy of the grievance with the board.

State government employees shall further file a copy of the grievance with the Director of the Division of Personnel.

(2) Conference.

– The chief administrator shall hold a conference within 10 days of receiving the grievance.

A conference is a private, informal meeting between the grievant and the chief administrator to discuss the issues raised by the grievance, exchange information, and attempt to resolve the grievance.

The chief administrator may permit other employees and witnesses to attend and participate in a conference to reach a resolution.

The chief administrator shall issue a written decision within 15 days of the conference.

(3) Level one hearing.

– The chief administrator shall hold a level one hearing within 15 days of receiving the grievance.

A level one hearing is a recorded proceeding conducted in private in which the grievant is entitled to be heard and to present evidence;

the formal rules of evidence and procedure do not apply, but the parties are bound by the rules of privilege recognized by law.

The parties may present and cross-examine witnesses and produce documents, but the number of witnesses, motions, and other procedural matters may be limited by the chief administrator.

The chief administrator shall issue a written decision within 15 days of the level one hearing.

(4) An employee may proceed directly to level three upon the agreement of the parties.

or when When the grievant has been discharged, suspended without pay, or demoted or reclassified resulting in a loss of compensation or benefits, he or she may proceed directly to level two.

Level one and level two proceedings are waived in these matters (b) Level two:

Alternative dispute resolution.

– (1) Within 10 days of receiving an adverse written decision at level one, the grievant shall file a written request for mediation, private mediation, or private arbitration.

(2) Mediation.

– The board shall schedule the mediation between the parties within 20 days of the request.

Mediation shall be conducted by an administrative law judge pursuant to standard mediation practices and board procedures at no cost to the parties.

Parties may be represented and shall have the authority to resolve the dispute.

The report of the mediation shall be documented in writing within 15 days.

Agreements are binding and enforceable in this state by a writ of mandamus.

(3) Private mediation.

–  The parties may agree in writing to retain their choice of a private mediator and share the cost.

The mediator shall schedule the mediation within days of the written request and shall follow standard mediation practices and any applicable board procedures.

Parties may be represented and shall have the authority to resolve the dispute.

The report of the mediation shall be documented in writing within 15 days.

Agreements are binding and enforceable in this state by a writ of mandamus.

(4) Private arbitration.

– The parties may agree, in writing, to retain their choice of a private arbitrator and share the cost.

The arbitrator shall schedule the arbitration within 20 days of the written request and shall follow standard arbitration practices and any applicable board procedures.

The arbitrator shall render a decision in writing to all parties, setting forth findings of fact and conclusions of law on the issues submitted within 30 days following the arbitration.

An arbitration decision is binding and enforceable in this state by a writ of mandamus.

The arbitrator shall inform the board, in writing, of the decision within 10 days.

(c) Level three hearing.

– (1) Within 10 days of receiving a written report stating that level two was unsuccessful, the grievant may file a written appeal with the employer and the board requesting a level three hearing on the grievance.

State government employees shall further file a copy of the grievance with the Director of the Division of Personnel.

(2) The administrative law judge shall conduct all proceedings in an impartial manner and shall ensure that all parties are accorded procedural and substantive due process.

(3) The administrative law judge shall schedule the level three hearing and any other proceedings or deadlines within a reasonable time in consultation with the parties.

The location of the hearing and whether the hearing is to be made public are at the discretion of the administrative law judge.

(4) The administrative law judge may issue subpoenas for witnesses, limit witnesses, administer oaths, and exercise other powers granted by rule or law.

(5) Within 30 days following the hearing or the receipt of the proposed findings of fact and conclusions of law, the administrative law judge shall render a decision in writing to all parties setting forth findings of fact and conclusions of law on the issues submitted.

(6) The administrative law judge may make a determination of bad faith and, in extreme instances, allocate the cost of the hearing to the party found to be acting in bad faith.

The allocation of costs shall be based on the relative ability of the party to pay the cost §6C-2-6.

Allocation of expenses and attorney’s fees.

(b) In the event a grievant or employer appeals an adverse level three decision to the circuit court of Kanawha County,County or an adverse circuit court decision to the Supreme Court of Appeals of West Virginia, and the grievant substantially prevails upon the appeal, the grievant the prevailing party may recover from the employer court costs and reasonable attorney’sattorney's fees from the opposing party for the appeal,appeal to be set by the court.

          Bill Status  |  Bill Tracking  |  Legacy WV Code  |  Bulletin Board  |  District Maps  |  Senate Roster  |  House Roster  |  Live  |  Blog  |  Jobs  |  Links  |  Home This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.