7.4             GRIEVANCE PROCEDURE

7.4.1          Notification to Employees

The Human Resources Director is designated by the Executive Director to provide information, direction, and guidance in initiating and pursuing the grievance procedure. The Human Resources Director is responsible to ensure compliance with the procedure in terms of timeliness and communication.

An employee who wishes to pursue an issue through the grievance procedure should initially notify the Human Resources Director whose responsibility is to assure appropriate tracking, time frames, and applicable documentation related to the procedure. Likewise, a supervisor informed by a subordinate of a potentially grievable issue should inform the Human Resources Director of the situation.

In no case will the Human Resources Director's facilitation function as described above extend, or alter the effect of, the grievance procedure except as provided for in Section 7.4.10 ("Miscellaneous Provisions").

7.4.2          Informal Resolution

Complaints arising in the workplace should be resolved fairly and as soon as possible. Staff are encouraged to discuss complaints with supervisors prior to going to the next level within the organization. In situations where the supervisor conduct is at issue and there is a fear/ perception that intimidation or retaliation will take place, the employee is encouraged to go to the next supervisory level. Most issues can be resolved through discussion, but alternatives are available when discussion is not effective.

Obtaining Information - When selecting a suitable alternative to resolve the problem, it may be helpful to obtain information from D19 CSB's Human Resources Office.

7.4.3          The Grievance Procedure

The Grievance Procedure - The grievance procedure is a process through which employees may bring their concerns to upper levels of management. The process requires that rules be followed strictly. All grievances must be initiated within 30 calendar days of the action or event challenged. Attempts to resolve disputes informally do not extend the 30 calendar-day time period. The 30 calendar-day time period can only be extended if D19 CSB and employee agree in writing to waive it.

The grievance procedure contains three phases:

  1. The resolution steps:

1. First resolution step
2. Second resolution step
3. Third resolution step

  1. Qualification for a hearing

  2. The hearing

Informal Discussion - Prior to the initiation of a grievance, the employee should consider discussing the issues with his supervisor in an attempt to resolve the problem informally.

Grievance Forms -

  1. Even when discussions are ongoing, however, the written grievance must be initiated within 30 calendar days, unless there is an agreement to waive this requirement.

  2. The "Employee Grievance Procedure, Grievance Form A" or "Employee Grievance Procedure, Grievance Form A - Expedited Process" (ADMINPERS #14 or #14-A) is available in the Human Resources Office for the initiation of a grievance. When a written response is required it must be placed on the Grievance Form A. If there is not enough space on the form for a complete statement, attachments may be added.

Compliance - Because the grievance procedure has rules, issues relating to compliance arise. All claims of noncompliance should be raised immediately ("Compliance" is found in Section 7.4.9). By proceeding with the grievance after becoming aware of a procedural violation, one may forfeit the right to challenge the noncompliance at a later time. Time periods may only be extended by mutual consent

Gathering Information - When a grievance is initiated, the employee can ask to review information, which pertains to the grievance. Information pertaining to other employees, which is directly relevant to the grievance must be provided in such a manner as to preserve the privacy of the individuals not personally involved in the grievance.

7.4.4          The Resolution Steps

Limitations on Processing a Grievance - Not all grievances proceed through the resolution steps. Management may challenge, at any step in the process through to the agency head's qualification decision, that the employee is excluded from proceeding with the grievance.

Questions of Access - Issues pertaining to the employee's type of employment or status are questions of access. Issues of access include:

  1. whether the employee is in an eligible position to utilize the Grievance Procedure;
  2. whether the employee is exempt under §2.2-2905 of the Code of Virginia.
  3. whether the employee has voluntarily resigned.
  4. whether the complaint pertains directly and personally to the employee's own employment;
  5. whether the complaint arises in D19 CSB in which the employee works;
  6. whether the employee has initiated multiple grievances challenging the same action or arising out of the same facts;
  7. whether the grievance was initiated after the date of termination and does not challenge the termination or a disciplinary action which had occurred within 30 calendar days of the incident;
  8. whether the employee's use of the grievance procedure constitutes harassment; and
  9. whether the grievance has been initiated after 30 calendar days.
  10. whether the employee has pursued the same complaint through another D19 CSB process.

If the issue of access is raised, the employee can seek simultaneously a determination from D19 CSB head on access and qualification to proceed with the grievance within five workdays and may appeal that decision to the Circuit Court. (See Section 7.4.6, "Circuit Court Appeals.") The decision of the Circuit Court is final.

  1. First Resolution Step
    1. A written grievance must be presented to the first-step respondent (immediate supervisor) within 30 calendar days of the event or action giving rise to the grievance. A grievance alleging discrimination or retaliation by the immediate supervisor may be initiated with the next level supervisor.
    2. The written grievance should state the nature of the complaint, the facts in support of the claim, and the relief requested. Once the grievance is presented in writing, additional claims may not be added to the grievance. A meeting may be held to discuss the issues in dispute, but such a meeting is not required.

  2. Expedited Process

    An Expedited Process using ADMINPERS #14-A form is available for a grievance involving a termination, demotion or suspension without pay, or loss of wages. It may be initiated with the second-step respondent and immediately following the response from the second-step meeting, a request may be made to the Executive Director that the grievance be qualified for a hearing.

  3. First Resolution Step
    1. Within five workdays of the presentation of the written grievance, the first-step respondent must provide a written response. The response should address the issues and the relief requested.
    2. The employee must indicate within five workdays the intention to continue to the second-step or to conclude the grievance.
  4. Second Resolution Step (Meeting)
    1. The employee and the second-step respondent must meet within five workdays. Each may be accompanied by an individual of choice. The meeting is not to be conducted as a hearing with arguments and cross-examination; the purpose is for fact finding. The meeting shall not be recorded.
    2. Individuals with pertinent information directly relating to the grievance may appear. Questions may be asked to clarify points or to explore other avenues of inquiry. After providing the information, they should not remain in the meeting.
    3. The second-step respondent must provide a written response to the issues and the relief requested within five workdays of the meeting. The written comments should address the matters discussed in the meeting.
    4. District 19 Community Services Board Disability/ Division directors will serve as second step respondent for their respective disability. The Executive Director shall serve as second step respondent for the Administration work area.

      NOTE: In situations where D19 CSB Executive Director serves at the first resolution step a member of D19 CSB Board of Directors will be designated by the chairman to serve as the second resolution step.

    5. Within five workdays, the employee must indicate in writing the intention to continue to the next step or to conclude the grievance.

  5. Third Resolution Step
    1. The third-step respondent must review the grievance record and within five workdays provide a written response to the issues and the relief requested.
    2. A meeting may be held to discuss the issues still in dispute, but such a meeting is not required.
    3. In situations where the Executive Director is the first resolution step and serves as the first line supervisor, the chairman or designated Board member of D19 CSB will serve in the capacity of the third level resolution step.
    4. The employee must indicate within five workdays the intention to request that the grievance be qualified for a hearing or to conclude the grievance.

7.4.5 Qualification for a Hearing

To proceed to a hearing, a grievance must be qualified. Not all grievances may proceed to a hearing. Only those which challenge the following actions may be qualified for a hearing.

  1. Actions Which ARE To Be Qualified
    1. Formal discipline (Written Notices and terminations, suspensions, demotions, transfers, or assignments issued in conjunction with such Written Notices) and dismissals for unsatisfactory performance must be qualified.
    2. If there are facts which may support one or more of the following actions, the grievance should be qualified for a hearing:
      1. Unfair application or misapplication of policies, procedures, rules, and regulations;
      2. Discrimination on the basis of race, color, religion, political affiliation, age, disability, national origin, or sex;
      3. Arbitrary or capricious performance evaluation;
      4. Retaliation for participating in the grievance process; complying with any law or reporting a violation of such law to a governmental authority; seeking to change any law before Congress or the General Assembly; reporting a violation of fraud, waste, or abuse; or exercising any right otherwise protected by law; or
      5. Disciplinary transfers, assignments, demotions, suspensions, or other actions, which similarly affect the employment status of an employee.
  2. Actions Which Are NOT Qualified - Complaints which relate solely to the following issues are not grievable and may not be qualified for a hearing:
    1. Establishment or revision of wages, salaries, position classifications, or general benefits;
    2. Contents of statutes, ordinances, human resources policies, procedures, rules, and regulations;
    3. Means, methods, and personnel by which work activities are undertaken;
    4. Hiring, promotion, transfer, assignment, and retention of employees;
    5. Termination, layoff, demotion, or suspension from duties because of lack of work, reduction in work force, or job abolition;
    6. Work activity accepted by an employee as a condition of employment or which may be reasonably expected to be a part of the content of the job;
    7. Relief of employees from duties in emergencies; or
    8. Informal supervisory instructions (e.g. counseling memorandum, oral reprimand, manner of providing supervisory directions).

    The fact that the claim challenges an action reserved to management under this section does not preclude it from being qualified if there is some support for a claim of discrimination, retaliation, misapplication of policy, or discipline.

  3. Agency Head's Determination - The Executive Director is to determine within five workdays whether the grievance qualifies for a hearing. This determination is to be based on the criteria listed previously. In responding the Executive Director may wish to address, in addition, the merits of the grievance and the relief requested. When the Executive Director is the person the grievance requires to serve as the first resolution step and the grievant's first line supervisor, the Chairman of D19 CSB or their designated Board member will determine whether a grievance qualifies for a hearing.

7.4.6          Circuit Court Appeal

  1. If the grievance is not qualified for a hearing by D19 CSB Executive Director, the employee may request that the appropriate circuit court qualify the grievance. The request must be made in writing to the circuit court within five workdays. A copy of this request will be provided to D19 CSB.
  2. District 19 Community Services Board will forward the grievance record within five workdays to the circuit court in the jurisdiction in which the grievance arose. If D19 CSB does not forward the record, the employee may request the circuit court to issue an order requiring the transmittal of the record.
  3. Within 30 calendar days of receiving the grievance record, the court sitting without a jury should hear the appeal on the record and such additional evidence as may be necessary to resolve any controversy as to the correctness of the record. The court may receive other evidence at its discretion. The employee may have legal representation or represent himself at the hearing. Lay advocates are not allowed. The decision of the court is final and not appealable.
  4. Because the appearance of witnesses is within the discretion of the court, the parties must notify the court that they are requesting permission to have witnesses testify at the hearing. Depending upon the circuit court, the parties may have to request that the court schedule the hearing; in making the request it is helpful to provide some available dates. Some courts will not schedule a hearing until dates are submitted by the parties. Some courts may require the party to appear on "docket day" to schedule the hearing. The Clerk of the court can be helpful in arranging these matters.

7.4.7          The Hearing

All qualified grievances, except those noted below, proceed to a hearing before a hearing officer selected on a rotating basis from a list supplied by the Executive Secretary of the Supreme Court of Virginia. The hearing must be held and a written decision issued no later than 30 calendar days after the appointment of the hearing officer. This time can be extended only upon a showing of good cause.

  1. Planning the Hearing -
    1. The hearing must be held in the geographical location where the employee is or has been employed. District 19 Community Services Board must arrange a place for the hearing unless the hearing officer chooses to make the arrangements.
    2. It is the responsibility of the hearing officer to notify the parties, either in writing or at the pre-hearing conference, of the date, time, and place of the hearing.
  2. Absence from the Hearing -
    1. When a hearing is scheduled, it is the responsibility of the parties to appear or to ask for a postponement. A hearing may proceed in the absence of one of the parties; a hearing so conducted will be decided on the grievance record and the evidence presented at the hearing. The parties may be represented by legal counsel or other representative, or may represent themselves.
    2. A hearing is to last no more than one day, unless the hearing officer should determine that the time is not sufficient for a full and fair presentation of the evidence by both parties. A hearing may be continued into the evening or on weekends. The hearing officer may grant a postponement or extend the 30-day period for good cause.
  3. Authority of the Hearing Officer - Hearing officers have the authority to:
    1. Issue orders for witnesses or documents;
    2. Administer oaths;
    3. Receive documentary evidence and hear testimony, and exclude that which is irrelevant, immaterial, repetitive, or confidential by law;
    4. Decide on procedural requests;
    5. Hold a conference (in person or by telephonic means) to simplify the issues, decide procedural matters, discuss settlement possibilities, and establish the date, time, and place of the hearing;
    6. Order the parties to exchange a list of witnesses and documents; and
    7. Determine the validity of the grievance based on the evidence (not on procedural matters that had occurred in the processing of the grievance) and provide appropriate relief.
  4. Rules for the Hearing -

    Hearings are to proceed as follows:

    1. Opening and closing statements may be made by each party;
    2. Each party may be represented by an individual of choice;
    3. In disciplinary actions, D19 CSB must present its evidence first and must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances;
    4. With all other actions, the employee must present his or her evidence first and must show by a preponderance of the evidence that a proper claim is present;
    5. Formal rules of evidence do not apply;
    6. Non-party witnesses are not to be present in the hearing except to give testimony and be cross-examined;
    7. Exhibits offered may be received into evidence and made part of the record.
    8. The hearing must be recorded verbatim. (D19 CSB has the responsibility of arranging for proper recording equipment.) The hearing officer is responsible for the recording and is to preserve the recorded tapes as part of the grievance record. Either party may receive a copy of the recording, if requested, for the cost of reproduction. A court reporter is not required. If a party requests a court reporter, that party is responsible for the costs. If a transcript is made, the other party may obtain a copy for cost;
    9. The hearing officer has the authority to determine the propriety of the attendance of all persons not having a direct involvement in the hearing including witnesses and spectators; and
    10. The hearing should be closed to the public.

7.4.8          The Decision

  1. The hearing officer's decision must be in writing and contain the findings of fact and the basis for those findings. In granting relief the hearing officer should be guided, but not bound, by the relief requested in the written grievance. Appropriate relief can include reinstatement to the employee's former position or, if occupied, to an objectively similar position in terms of duties and salary, normally in the same work or organizational unit; an award of no, partial, or full back pay; and the restoration of full benefits, seniority, and other legal entitlements. Against an award of full or partial back pay, interim earnings are to be deducted. Damages and attorney's fees cannot be awarded.
  2. Appropriate relief may also include an order to create an environment free from discrimination or retaliation or to take corrective actions necessary to cure the violation and/ or minimize its recurrence. Other prospective relief cannot be ordered. District 19 Community Services Board cannot be ordered to promote, hire, or transfer any employee. However, the hearing officer can recommend such action and if the recommendation is acted upon by D19 CSB, the action shall be given weight in any subsequent proceeding. If a policy was unfairly applied or misapplied, the hearing officer can direct D19 CSB to redo the action from the point at which it became tainted. The hearing officer is to proceed under the Handbook for Hearing Officers prepared by the Department of Employee Relations Counselors.
  3. Implementation of the Decision - The decision is final and binding if consistent with policy and law. The decision is effective from the date issued and must be implemented immediately unless circumstances beyond the control of D19 CSB delay such implementation. Implementation may be stayed if a challenge is made to the decision.
  4. Circuit Court Order - The circuit court has the authority to issue an order requiring implementation of the decision and to award attorney fees for seeking the order.
  5. Challenges to the Decision - There are two types of challenges which can be made to the decision of the hearing officer. Challenges must be made in writing to the hearing officer within 5 workdays of receipt of the decision with a copy to the other party.
    1. Reconsideration or reopening requests should state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions are the basis for such requests. Once the challenge has been decided, it may not be appealed.
    2. A challenge to the decision on the basis that it is not consistent with law or policy should be made to the circuit court. Consistency with policy challenges should cite to an express mandate in policy. The circuit court has sole authority to grant such requests.

If D19 CSB fails to implement the final decision because it is not consistent with a provision in written policy, the employee may seek an order from the circuit court requiring implementation. (See above.)

7.4.9          Compliance

There are two types of compliance challenges which may arise during the course of processing a grievance. Either the circuit court or the supreme court of Virginia is authorized to issue final rulings on such matters depending upon the compliance challenge raised.

  1. Party Noncompliance

Sometimes a party may not take a required action. To compel a party to act, the following must be done:

    1. Write the other party stating explicitly the omission or error; (If D19 CSB is out of compliance, notification of noncompliance must be made to the Executive Director.)
    2. Allow the party five workdays after receipt of the notice to take or correct the required action;
    3. The action must be taken within five days unless there is just cause for the delay; and
    4. If the employee does not respond or take the action required, D19 CSB may close the grievance. If D19 CSB fails to respond or take the required action, the employee can seek an order from the circuit court granting the employee full relief. For errors, which are determined to be harmless, or for errors relating to the proper disclosure of information, the court only has the authority to require that the action be taken.
  1. Hearing Officer Noncompliance - When there are questions of compliance with the conduct of the hearing or the exercise of authority by the hearing officer, an objection should be made at the time the error is noted. If a party believes that the conduct of the hearing officer was improper, the party can file a complaint with the Office of the Executive Secretary of the Supreme Court of Virginia.

7.4.10        Miscellaneous Provisions

  1. Compensation and Reimbursement - District 19 Community Services Board employees who serve as witnesses or representatives in grievances arising in their own D19 CSB, are to be compensated for the actual time at the hearing (not preparation time) at their normal salary in accordance with applicable human resources policies. Such time is not to be charged against any leave balances. Reasonable costs for transportation, meals, and lodging are to be reimbursed in accordance with D19 CSB travel regulations.
  2. Disability Accommodations -
    1. A hearing impaired employee who requests a sign language interpreter is to be provided such an interpreter throughout the entire grievance process at D19 CSB's expense.
    2. A visually or otherwise physically or mentally impaired employee who cannot with ease take written notes may use a tape recorder during all steps of the grievance procedure.
  3. Use of D19 CSB's Copying, FAX, and Telephone - The initiation of a grievance is official business. Therefore, the employee may make reasonable use of a copying machine, telephone and the FAX to communicate with appropriate parties during the grievance procedure.
  4. Leave - Employees are to be granted time to consult with D19 CSB Human Resources Office, to serve as a representative for an employee within the agency, and to appear as a witness in a grievance matter. Employees are also granted administrative leave to participate in the steps of the grievance process.
  5. Grievance Procedure Assistance - District 19 Community Services Board Human Resources Officer is available to explain the grievance procedure.
  6. The employee may also contact the Virginia DMHMRSAS concerning questions of appropriate due process requirements and the availability of such.

7.5             STAFF CERTIFICATION/LICENSURE

  1. Service providers who plan, supervise, or deliver direct treatment services, and who are required by law and/ or by the State Board of Mental Health, Mental Retardation and Substance Abuse Services to be licensed or certified, shall be licensed or certified to provide their respective services under D19 CSB. It is the responsibility of the licensed/ certified staff member to ensure compliance with relevant licensing and professional certification standards; and a joint responsibility with the Services Director to ensure that the planning, supervision, and delivery of direct treatment services is provided in accordance with all applicable laws, regulations, and federal/ State/ local requirements.

    It is the policy of D19 CSB to encourage and assist in the professional licensing of mental health, mental retardation, and substance abuse professionals. The Board views the attainment of professional licensure as a positive measure of staff professional capability. Consistent with the "Clinical Licensure Incentives" (See Policy 5.6), the Board may assist license-eligible staff by providing the necessary clinical supervision through other staff of D19 CSB. For those staff who are license-eligible and who are interested in pursuing licensure, it is the responsibility of the Clinical Services Director to ensure that the necessary clinical supervision is provided in a timely manner. The procedures for internal clinical supervision are outlined below:

    1. Procedure for application: Staff may apply at any time by submitting a written request to the appropriate director. The request should include the staff member's plan for achieving licensure and should include specific goals and time frames.
    2. Supervisory assignments will be made periodically by the Disability/ Division Director, based on the following factors: employee's responsibility for supervising other staff or D19 CSB programs; demands made on D19 CSB to respond to external regulations; employee's longevity with D19 CSB ; licensure requirements for particular disciplines; clinical specialty considerations; and full-time employment. Each assignment will be made for a six month period.
    3. Supervision for licensure should not exceed 50 hours per fiscal year. However, management will allocate supervision hours depending upon time available from qualified staff for that purpose, work demands, agency priorities, etc.
    4. The supervisee is expected to document the general content of all supervision sessions. Such documentation will be made available to the program supervisor for review if necessary. These records will be kept by the supervisee to be used to establish the supervisee's eligibility for licensure and for clinical purposes. The supervisee shall document the receipt of supervision by noting the time on his/ her weekly activity form under staff development.
    5. Flexibility of hours of employment for course work may be arranged at the discretion of the program supervisor, who will be responsible for ensuring that program needs are met. Class attendance may not be counted as work time.
    6. When business necessity requirements change for a job due to law, mandates, or reimbursement standards, the requirement for securing this license, certification, etc., will become part of the employee performance evaluation process. This additional requirement of the job will be stated in writing to include an implementation plan and signatory authorization by respective supervisory and managerial personnel.

Chapters 7.1 through 7.3.6
Chapters 7.6 through 7.11.3
Chapters 7.12 through 7.17