The greater Richmond area serves as home to thousands of local, state and federal employees who have unique employment rights and concerns as government employees. My office offers substantial experience in public sector employment law and can assist government employees with the many complicated administrative processes and procedures associated with government employment.
VIRGINIA GOVERNMENT EMPLOYMENT
For State employees, the Virginia grievance process provides valuable protection for one’s employment interests. Typically, an Agency must issue a Group Notice to detail its basis for disciplinary actions. Unless otherwise exempted by statute, classified (non-probationary) employees may challenge disciplinary actions and termination decisions by filing a timely grievance with their Agency. Other issues such as the misapplication of written policy, discrimination and retaliation for utilization of the grievance process also may qualify for a grievance hearing.
The Virginia grievance process culminates with a hearing before a Hearing Officer from the Department of Employment Dispute Resolution. At the hearing, the employee has the right to cross-examine the Agency witnesses, call his or her own witnesses, and to introduce documents as evidence. The employee is entitled to be represented by counsel. The Hearing Officer has the authority to rescind Group notices, to order reinstatement, to award back-pay and to award attorney fees. However, the Hearing Officer cannot change Agency policy or award compensatory damages.
VIRGINIA GRIEVANCE PROCEDURE
The Commonwealth of Virginia has established a dispute resolution policy and grievance procedure for qualified state employees, which is administered by the Virginia Department of Human Resource Management – Division of Employment Dispute Resolution. Certain probationary, non-classified and executive personnel may be exempt from the policy.
How do I to Initiate a Grievance?
The primary stages of the grievance procedure include:
(i) management step resolution
(iii) review and appeals.
While any issue can be grieved for the purpose of participating in management step resolution, only certain adverse actions qualify for a formal grievance hearing. To initiate a grievance, Employees must file a formal written grievance within 30 calendar days of the employee’s knowledge of the event giving rise to the complaint.
The grievance form and filing details are provided by the Virginia DHRM’s Division of Employment Dispute Resolution (“EDR”). Normally, a grievance is initiated through your first level supervisor, though an expedited process is available for terminations, suspensions or when otherwise consented to by the parties. After filing the grievance, the complaint may proceed through a series of four “steps,” which culminate in a formal grievance hearing.
The second step of the resolution process is important, as it includes an informal conference for the purpose of gathering information relevant to the grievance. While these meetings are not adversarial in nature you may bring an attorney or other representative with you, though the attorney does not have the right to cross-examine witnesses at this stage. You also have the right to bring witnesses to the conference, though they cannot be compelled to participate.
In termination cases challenging a disciplinary termination or removal for unsatisfactory performance, a dismissal grievance can be initiated by filing a grievance directly with EDR, which then proceeds directly to a Grievance Hearing.
Issues That Qualify for a Grievance Hearing
Not all employment disputes qualify for a grievance hearing. By statue a grievance can only proceed to a hearing if it involves or alleges an adverse action arising from:
(i) formal disciplinary actions, including suspensions, demotions, transfers and assignments, and dismissals resulting from formal discipline or unsatisfactory job performance;
(ii) the application of all written personnel policies, procedures, rules and regulations where it can be shown that policy was misapplied or unfairly applied;
(iii) discrimination on the basis of race, color, religion, political affiliation, age, disability, national origin or sex;
(iv) arbitrary or capricious performance evaluations;
(v) acts of retaliation as the result of the use of or participation in the grievance procedure or because the employee has complied with any law of the United States or of the Commonwealth, has reported any violation of such law to a governmental authority, has sought any change in law before the Congress of the United States or the General Assembly, or has reported an incidence of fraud, abuse, or gross mismanagement; and
(vi) retaliation for exercising any right otherwise protected by law.
Issues That Are Excluded from Grievance Hearings
Conversely, the Commonwealth of Virginia specifically reserves the exclusive right to manage the affairs and operations of state government. Complaints relating solely to the following issues cannot qualify for a hearing:
(i) establishment and revision of wages, salaries, position classifications, or general benefits;
(ii) work activity accepted by the employee as a condition of employment or which may reasonably be expected to be a part of the job content;
(iii) contents of ordinances, statutes or established personnel policies, procedures, and rules and regulations;
(iv) methods, means, and personnel by which work activities are to be carried on;
(v) termination, layoff, demotion, or suspension from duties because of lack of work, reduction in work force, or job abolition;
(vi) hiring, promotion, transfer, assignment, and retention of employees within the agency; and
(vii) relief of employees from duties of the agency in emergencies.
How Grievance Qualification Disputes Are Resolved
The Agency Head has the initial responsibility of deciding whether a grievance qualifies for a hearing, which must be issued within five workdays of the employee’s request for a hearing. If a hearing is denied, the employee may appeal the denial to the Director of Employment Dispute Resolution (“EDR”).
If a qualified complaint cannot be resolved through the management resolution steps, the employee may request a formal administrative hearing. Employees may be represented by an attorney at this stage of the grievance process. The hearing is adversarial in nature but not subject to the formal rules of evidence that you would find in a court trial. Each side has the opportunity to call relevant witnesses and to cross-examine all witnesses.
Hearings are administered by Hearing Officers, typically employees of the Department of Employment Dispute Resolution. By statute, hearing officers have the power to:
1. Hold conferences for the settlement or simplification of issues;
2. Dispose of procedural requests;
3. Issue orders requiring testimony or the production of evidence;
4. Administer oaths and affirmations;
5. Receive probative evidence; exclude irrelevant, immaterial, insubstantial, privileged, or repetitive proofs, rebuttals, or cross-examinations; rule upon offers of proof; and oversee a verbatim recording of the evidence;
6. Receive and consider evidence in mitigation or aggravation of any offense charged by an agency in accordance with rules established by the Department of Employment Dispute Resolution pursuant to § 2.2-1001; and
7. Take other actions as necessary or specified in the grievance procedure.
For those issues qualified for a hearing, the hearing officer may order appropriate remedies, including:
(ii) back pay;
(iii) full reinstatement of fringe benefits and seniority rights;
(iv) mitigation or reduction of the agency disciplinary action; or
(v) any combination of these remedies.
In grievances challenging discharge, if the hearing officer finds that the employee has substantially prevailed on the merits of the grievance, the employee shall be entitled to recover reasonable attorneys’ fees.
Appeals and Judicial Review
Parties can request administrative review by the Virginia Department of Human Resource Management for the purpose of determining whether a Hearing Officer decision is consistent with state policy or whether there were any violations of the hearing procedure.
Parties also can appeal within 30 days to Circuit Court on the grounds that a Hearing Officer decision is contradictory to law.
LOCAL GOVERNMENT EMPLOYEES
Similar to State employment, the Virginia Code requires each locality that has more than 15 employees to establish a grievance procedure. If a local governing body fails to adopt a grievance procedure, the state grievance procedure becomes applicable for so long as the locality remains in noncompliance.
In this area, Richmond, Petersburg, Chesterfield, Hanover and Henrico all have established grievance procedures that reply upon hearings before either a personnel board or a selected panel. The employee is entitled to be represented by counsel. While these processes resemble the State system, each locality has its own time limitations and procedural requirements.
To view the specifics of the grievance policy for your locality you should request a copy of the policy from the locality’s Human resources department.
FEDERAL GOVERNMENT EMPLOYMENT
Federal employees have a unique set of grievance and appeal opportunities. With regard to terminations or removal decisions, many federal employees may be eligible to file an appeal before the Merit Systems Protection Board.
With regard to discrimination complaints, the Federal sector implements its own EEO process that is different and distinct from the process utilized by state and private sector employees. Under the Federal EEO process, claims must be initiated within much tighter deadlines, and employees usually proceed through an Administrative Hearings process before they take cases to Court. Additionally, some Federal employees, such as Postal Service workers, may have alternative grievance rights under a union collective bargaining agreement.