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Employee Grievances
Fall 2023 PANC Conference
Asheville, NC
October 10, 2023
Employee Grievances: At a Glance
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Overview��I. Federal and State Laws� ��II. Local Board Policy� ��III. Procedures, Regulations, and Practices
Federal and State Laws
Examples of unlawful reasons for terminating employees include:
(2) dismissal in violation of First or Fourth Amendment rights under the U.S. Constitution;
(3) dismissal in violation of the NC Retaliatory Employment Discrimination Act, G.S. 95-240 et seq.;
(4) dismissal in violation of G.S. 163-271 or 163-274(7) (which prohibit discharge based on how the employee voted) or G.S. 163-41.2 (which prohibits discharge for serving as a precinct official on election day if proper notice has been given to employer);
Federal and State Laws
Examples (cont.):
(5) dismissal in violation of the N.C. Whistleblower’s Protection Act, G.S. 126-84 et seq.;
(6) dismissal in retaliation for exercising rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. 2601, et seq.; and
(7) dismissal for a purpose that contravenes public policy, such as for testifying truthfully in court against the employer (see Sides v. Duke Hospital, 74 N.C. App 331 (1985)); and
(8) Claim under the NC Constitution if dismissed in contravention of a clearly established employment rule or policy of the board (see Tully v. City of Wilmington, (370 N.C. 527 (2018)).
Federal and State Laws
Federal�Constitution, Anti-Discrimination Laws, OSHA, Dept. of Labor, other employee protection laws and enforcement agencies
State
G.S. 115C-45 Judicial Functions of the (Local) Board
G.S. 126-5(c5) Employees subject to Chapter; exemption
G.S. 126-16 Equal opportunity for employment and compensation by State departments and agencies and local political subdivisions.
State Laws
Judicial Functions of the Board G.S. 115C-45(c)
Appeals to Board of Education and to Superior Court. – An appeal shall lie to the local board of education from any final administrative decision in the following matters: [(1) discipline of student; (2) misapplication of law/policy, such as grade retention of students;] (3) The terms or conditions of employment or employment status of a school employee; and (4) Any other decision that by statute specifically provides for a right of appeal to the local board of education and for which there is no other statutory appeal procedure.
The term "final administrative decision" means a decision of a school employee from which no further appeal to a school administrator is available.
State Laws
Judicial Functions of the Board G.S. 115C-45(c) (cont.)
Any person aggrieved by a decision not covered under … this subsection shall have the right to appeal to the superintendent and then to petition the Board for a hearing
The local board may grant a hearing regarding any final decision of school personnel within the district.
The local board of education shall notify the person making the petition of its decision whether to grant a hearing.
For appeals to the Board, Board shall give proper notice to all parties concerned and keep a record of the hearing. Hearing panels appointed by the Board must be composed of not less than two members of the board to hear and act upon such appeals in the name and on behalf of the board of education.
State Laws
§ 126-5(c5). Employees Subject to Chapter.
(c5) Notwithstanding any other provision of this Chapter, Article 14 of this Chapter applies to all State employees, public school employees, and community college employees
State Laws
§ 126-16. Equal opportunity for employment and compensation by State departments and agencies and local political subdivisions.
All State agencies, departments, and institutions and all local political subdivisions of North Carolina shall give equal opportunity for employment and compensation, without regard to race, religion, color, national origin, sex, age, disability, or genetic information to all persons otherwise qualified.
Recent NC Cases
Cole v. Wake County Board of Education,
US District Court, E.D. North Carolina, Western Division.
February 28, 2020494 F.Supp.3d 338388 Ed. Law Rep. 696
Former Principal claims she was racially discriminated against and retaliated against
Failed to conduct teacher evaluations according to state and local policies, was notified, then transferred to another position
Never reported to the new position – took sick leave Filed an EEOC charge of Discrimination (protected activity) and 2 weeks later filed a grievance against the employer
Recent NC Cases
Cole v. Wake County Board of Education (cont.),
She could not show good performance reviews during the period of her transfer and sick leave
Her transfer to the DIS position was upheld in the grievance process and she was not retaliated against
The court determined that there was no adverse employment action just because plaintiff perceived her career would be negatively impacted if she worked in the DIS position. The court also found no illegal pretext or retaliation
Plaintiff “presents arguments very heavy on intrigue but very light on evidence.” Motion for summary judgment in favor of district and can file a motion for costs to be paid by Plaintiff.
Recent NC Cases
Reaves v. Public Schools of Robeson County et al,
US District Court E.D. North Carolina Southern Division 2022 WL 18492009
Plaintiff applies pro se as “in forma pauperis” (in the manner of a pauper and not incurring costs of the action) which status is granted
However, the court recommends that plaintiff’s complaint be dismissed for failure to state a claim upon which relief can be granted.
Recent NC Cases
Reaves v. Public Schools of Robeson County et al (cont.),
US District Court E.D. North Carolina Southern Division 2022 WL 18492009
Plaintiff is a black CTE teacher who filed a grievance against the Superintendent
Four days later, her school email account was blocked (from 12/10/21 – 2/28/22); however, two resource teachers who were white did not have access blocked
Plaintiff claims that the district failed to report that discrimination and that of her 72 CTE students to the federal government as required by law
She was suspended with pay and prior to the end of the 90 day period and filed suit even though no dismissal or demotion proceedings had been started against her
Recent NC Cases
Reaves v. Public Schools of Robeson County et al (cont.),
US District Court E.D. North Carolina Southern Division 2022 WL 18492009
Plaintiff alleges she was treated differently that the two white employees; however, plaintiff did not demonstrated she was treated differently because of her race
Retaliation claim fails because plaintiff failed to exhaust her administrative remedies (she did not obtain a right to sue” letter which is a prerequisite to REDA claim)
Local Board of Education �Employee Grievance Policy
Grievance Procedure for Employees Board Policy: 1750/7220
Informal Resolution
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Definitions
Timeliness of Process
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General Requirements
Process
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Records
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Local Board of Education �Employee Grievance Policy
Ultimate Goal – serving the educational welfare of children, to develop and practice reasonable and effective methods of resolving difficulties that may arise among employees.
Reduce potential areas of grievance
Establish and maintain recognized channels of communications between staff and administration
Purpose of grievance procedure is to secure equitable solutions to problems affecting employees from time to time at the lowest level possible.
Why have an Employee Grievance Policy
Save Time
Save Resources
Professional
Before Filing a Grievance
Employee is encouraged to attempt to resolve the alleged dispute informally
Employee discusses issue with supervisor, unless the supervisor is the alleged wrongdoer.
There is an expectation that the alleged dispute can be handled by the direct supervisor informally
When informal attempts are unsuccessful, the employee may elect to file a Formal Grievance
Effective Grievance Policy
Defines what matters are properly the subject of a grievance
Outlines process by which an employee pursues a grievance
Provides reasonable defined time limits within which to act
Allows superintendent an opportunity to resolve grievance
Provides an appeal to the board of education for the grievant
Local Board of Education �Employee Grievance Policy
If attempts at informal resolution are unsuccessful, then the formal resolution process is available.
Definitions
Days - “working days” on the aggrieved employee’s employment calendar. First full working day after receipt of the grievance. After May 1 timelines are condensed to accommodate nearing end of school year.
Final Administrative Decision is a decision from school employee with no right to appeal.
Grievant is the employee making the claim.
Parties in Interest refer to the grievant and the person against whom the grievance is filed.
What is a Grievance?
A grievance is a formal written claim by an employee regarding specific decision(s) made by another employee and alleging that such decision(s) have adversely affected the person making the claim.
What is a Grievance? (cont.)
A grievance may include, but is not limited to, allegations: �
What is a Grievance? (cont.)
The term “grievance” does not apply to any matter for which the method of review is prescribed by law, for which there is a more specific board policy providing a process for addressing the concern, or upon which the board of education is without authority to act.
Example:�For employees see Board Policy 1726/4036/7237 Title IX Sexual Harassment Grievance Procedures
Timeliness of Grievance Process
Communicate with grievant at every step of the process�
Even if there is delay, official must make reasonable efforts to communicate the progress during the delay to the grievant
Legitimate reasons for delay could include complexity of the investigation or report, depending on the scope and whether or not other entities are involved in the investigation
Once a decision is sent to the grievant and the time limit for requesting an appeal has passed, the decision stands, unless good cause shown
General Requirements
All parties in interest and their representatives must conduct themselves professionally
Neither the Board nor an employee will take reprisals of any kind against any party in interest or other employee based on participation in this process
Each decision will be in writing with reasons and will be transmitted to all parties in interest promptly
All meetings and hearings involving employees will be private unless requested by the grievant and without conflicting with confidentiality requirements
Time for a Side Bar….� Open Meetings/Public Records vs. Confidentiality
General Requirements (cont.)
General Requirements (cont.)
The Board/administration will consider grievances from a group of grievants but have the discretion to hear/respond individually
Cooperation with grievant/representative and not charge either the grievant or the employee(s) against whom the grievance is filed for access to pertinent information
The grievant may have a representative – including an attorney – at any stage of the grievance as long as prior notice to school official
If the superintendent or designee determines during the investigation or grievance process that the grievant needs to be absent from regular work assignments, the absences are excused without loss of pay or benefits.
Process for Grievance
Filing as soon as possible but no longer than 30 days after learning the facts leading to the grievance
If grievance submitted after that timeframe and alleges violation/misapplication/misinterpretation of federal or state law, superintendent has discretion as to whether to review after considering: (1) reason for delay (2) extent of delay (3) effect of the delay on the ability to investigate/respond (4) whether investigation necessary to satisfy the law.
Employees who file delayed grievances are to recognize that the delay may significantly impair the ability to investigate and respond effectively
Process for Grievance (cont.)
All grievances must be in writing and remain the same throughout the grievance process
Form should include at least: (1) Name of Employee or Person whose conduct is at issue; (2) Specific decision, action or physical condition at issue; (3) Any local board policy, state/federal law/regulation, or State Board of Education policy/procedure that grievant believes has been misapplied, misinterpreted, or violated; and (4) the Specific resolution desired. Otherwise handle the allegation as a complaint per policy 1742/5060 Responding to Complaints
Grievant present written grievance to immediate supervisor unless alleging state or federal law has been misapplied, misinterpreted, or violated in which case present to Asst. Superintendent of Human Resources. Grievance recipient is the “official”
Any grievance against the superintendent should be filed directly with the Board
Response by the Official
Response by the Superintendent
Sample Decision Letter
File Number 10101
Sample Decision Letter
File Number 10232
Mandatory Appeal
If grievant alleges violation of law or policy or a school official’s decision adversely affects the grievant’s employment status or terms and conditions of employment grievant shall have the right to appeal to Board
If grievant is dissatisfied with superintendent’s response and has alleged violation of law, policy or regulation or procedure, etc. grievant may appeal within 10 days of receipt of superintendent’s response and a Board hearing held and written decision within 30 days of hearing unless further investigation is needed
Otherwise, the Board may grant an appeal in its discretion.
Discretionary Appeal
Mandatory vs. Discretionary Appeal to the Board
“Mandatory” appeal requires that a final administrative decision has been made
Final administrative decision about a school employee from which no further appeal to a school administrator is made
Decision is usually made by the superintendent or designee, before a direct appeal to the Board may occur.
(Section E4 in Policy 1750/7220)
Records Retention – Employee Grievance
What records are created during an employee grievance, investigation, and final decision?
If resolution is not satisfactory to grievant, the grievant may timely appeal to Board�
Final Outcome�Personnel Action vs. No Action Taken (G.S. 115C-319 and -321)
Records Retention Schedule
* For the purposes of records retention generally, no destruction of personnel records may take place if audits or litigation are pending or reasonably anticipated.
Grievances | Destroy in office after 2 years.* |
Investigation & Hearing Records | Destroy in office 3 years after completion.* |
Occupational Safety & Health Administration (OSHA) | Destroy in office after 5 years. |
No Retaliation
“No Retaliation” provisions in policies for employees who file grievances.
No adverse employment action can be taken against the grievant because the employee filed a grievance.
Note: Local board of education employees are protected by the state “Whistleblower Protection Act” like state employees. See G.S. 126-5(c5)
NC False Claims Act
The North Carolina False Claims Act protects whistleblowers from retaliation by employers
File “qui tam” lawsuits under seal on behalf of the state and against defendants who have allegedly defrauded government programs.
Allows the government to opportunity to investigate and decide whether to intervene.
Up to 25% of any amount recovered
Fines between $5,500 to $11,000 for each violation of the act.
The statute of limitations requires complaints to be filed within 10 years of the date on which to violation occurred.
Grievance Twists and Turns
Investigations – Who Conducts?
Investigations – What do I do and look for?
Investigations – What is Reviewed?
The Big (Grievance) Picture
-Does the Board and district have, understand, train staff, and follow?
-Legal issues (examples: Criminal Misconduct, Whistleblower Protection, FMLA, ADA, Anti Discrimination/Harassment/Bullying)
-Are there services that the EAP program has that can support the grievant regardless of whether the grievance has merit?
-How does Board/district prevent this situation from occurring again?
-Where did the actions/communications break down?
Triple Filter Test
There’s a simple solution to a common problem because many workplace grievances stem from interpersonal conflicts.
Ask three basic questions before telling me the information:�
If the answers are “I don’t know” and/or “no” = no need to relay the information.
Triple Filter Test
The truth is, people gossip and talk about each other.
Why?
It can be a type of bullying.
And, it could also be a type of workplace misconduct that can damage the employment culture, as well as damage a person’s reputation and livelihood, especially if it is false.
Triple Filter Test
If you want to work in a place without gossip, this is what you do:
Triple Filter Test
It’s simple, but it works!
Advantages:
Triple Filter Test
It goes beyond the workplace …
Remember, bullying exists with young people (on social media/in school) and they are watching/listening to the employees in school.
As the adult, set a good example. Stop talking negatively about family, neighbors, colleagues, in-laws, etc.
Be the role model around the dinner table, with friends, or otherwise.
Watch for “Grievance Collectors”
�-Larry Barton, a faculty member at the FBI Training Academy, has researched more than 2,300 critical incidents affecting organizations since 1986. Former professor at Harvard Business School, Penn State, the University of Nevada at Las Vegas and Boston College. Has designed a global system for crisis prevention and response for major U.S. corporations.
Addressing Grievances & Workplace Safety
Addressing Grievances & Workplace Safety
(Not) Addressing Grievances & Workplace Violence
Employers have a responsibility to make the workplace as safe as possible. Part of this responsibility includes taking steps to prevent workplace violence. The employer who fails to do so is subject to possible liability.
(Not) Addressing Grievances & Workplace Violence
Employers can reduce workplace violence by:�
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1. Generally an employee grievance can inform the administration about an existing conflict. Investigating the grievance allows the administration an opportunity to attempt to resolve the conflict.�
2. What does an investigation look like? �� Whom do you interview? �� What part do employee emails play in the investigation? �� Can you use postings online including social media posts on � public pages as part of the review?
3. What if during the investigation of an employee grievance you discover other wrongdoing? ��Do you investigate that wrongdoing?
4. How involved should staff be in an employee grievance? ��How involved should the board attorney be in the investigation of a routine “employee v. employee” grievance?� �Who should be involved in an appeal to the board?
5. How does G.S. 115C-45(c) work for employees who want to be heard by the Board about the “terms or conditions of employment”? ��Is that an additional hearing beyond the Board appeal contemplated in board policy?
6. Are the investigation files part of the employee’s personnel file? ��What if a grievance is against an employee - is that information personnel information?
7. What if the grievance is against the superintendent or a Board member/Board Chair? Who investigates that? ��How is the investigation reported to the Board? ��Do you keep employee information confidential and discuss only in closed session, but direct any Board discussion in open session if against a board member and employee?
8. What about using the employee grievance process pre-emptively to protect an employee’s anticipated termination for poor performance (where the termination of employment will be construed as retaliation)?
9. Does the submission meet the definition of a grievance? Is it timely?���
10. What are the remedies a grievant can request? � �A change in job assignment?� A change in students? �An increase in pay? �What about setting precedent for other employees when a grievance with another employee is resolved?��
11. What about an investigator who is a family member?�Who cannot be unbiased? �Who lacks fairness and impartiality through the investigation?��
12. Which one of these examples is not grievable?��-I am a beginning teacher and was not selected as the department chair for my area as I requested. Instead, I was assigned bus duty.� �-The students assigned to my class are always the biggest behavior problems.� ��
-I was not selected as the department chair for my area because I am a transgender female. �
-I was assigned bus duty even though my employer knows I have asthma that is exacerbated by exhaust fumes.
13. What about former employees, can they file a grievance that requires investigation?��Does an employee have to file a grievance as a way to exhaust administrative remedies before filing a complaint with the EEOC to obtain a right to sue letter? And before filing a lawsuit?� ��
Katie Cornetto
kcornetto@poynerspruill.com