Steve Rawson

April 29, 2025

Employee Grievances

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Personnel Administrators of North Carolina

Spring Conference 2025

THARRINGTON SMITH, LLP

Rules of the Road

• This is an overview of the most common issues involved with grievances and complaints.
• We will not cover every possible scenario or application of grievance policies and processes.
• Questions are encouraged during the presentation, though we may not be able to get to everything in minute detail.
• I am not providing, and cannot provide, legal advice. Questions should be general or framed as hypotheticals. “I have an employee who…” is a question that should be addressed to your local counsel.

A principal calls you and says they are looking to place a troublesome TA/bus driver on an action plan. You ask them to send you the documentation. The next day (before the principal’s documentation arrives), you receive an email from the TA alleging that the principal is “out to get me / biased against me,” is “sabotaging my work,” and “has been telling other staff things about my work performance.” Two hours later, the principal calls back about instructions regarding the action plan.

SPOT THE ISSUES!

The Obligatory Issue Spotter…

What are your primary concerns with grievances and investigations?

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OVERVIEW

Purpose of grievance and complaint policies

Role of Human Resources in grievance and complaint processes

How to conduct a grievance investigation

How to communicate the results of a grievance investigation

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Why are there Grievance/Complaint Policies?

State law creates a right to seek review of “final administrative decisions.”

• Right to appeal to Board of Education any final administrative decision involving
• “an alleged violation of a specified federal law, State law, State Board of Education policy, State rule, or local board policy” OR
• “the terms or conditions of employment or employment status of a school employee”
• Right to appeal to Superintendent any “final administrative decision” that falls outside these categories.

G.S. 115C-45(c).

Why are there Grievance/Complaint Policies?

State law requires that boards have a policy in place to review allegations of bullying and harassment.

• “No student or school employee shall be subjected to bullying or harassing behavior by school employees or students.” G.S. 115C-407.15(b).
• Must have a policy that contains “a procedure for reporting an act of bullying or harassment,” and “ a procedure for prompt investigation of reports of serious violations and complaints of any act of bullying or harassment,” G.S. 115C-407.16 (b)(5),(6).

Why are there Grievance/Complaint Policies?

Federal law requires employers have certain complaint review procedures.

• Title IX requires that school districts have a grievance procedure for reviewing complaints of sex discrimination or sexual harassment. 34 C.F.R. 106.8(c).
• Section 504 requires that employers adopt a grievance procedure to resolve complaints about disability-based discrimination. 34 C.F.R. 104.7(b).

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BOARD POLICIES

General NCSBA Policies on Point

Most Boards have adopted the following policies to implement obligations to offer complaint and grievance processes:

• 1750/7220 Grievance Procedure for Employees
• 7232 Discrimination and Harassment in the Workplace
• 1726/4036/7237 Title IX Sexual Harassment Grievance Process
• 4329/7311 Bullying and Harassing Behavior Prohibited

Catchall process for other concerns:

• 1742/5060 Responding to Concerns

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BOARD POLICIES

Important Features of Grievance Policies

• Flexibility vs. Requirements
• Timelines
• Evidence rules
• Clear statement of what the grievant must do to start a grievance.
• Clear statement of subjects of appeal.

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GRIEVANCES vs. COMPLAINTS

• Review the policies to determine the applicable review process
• “Grievances” involve final decisions
• “Complaints” usually involve claims about the work environment or general treatment of the employee
• Key differences
• Grievances – set timelines; right to appeal to the Board
• Complaints – sometimes an opportunity to appeal to the Board
• Similarities
• Must be reviewed

Role of HR in Grievance/Complaint Processes

Implement an impartial review process

• Provide complainants a defined process for review of their concerns
• Offer accused employees an opportunity to respond

After completing the review, determine whether a violation occurred

• Do not pre-determine whether a violation has occurred

If a complaint is unsubstantiated, HR will inform both the complaining and accused employee of that result.

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Role of HR in Grievance/Complaint Processes

Consider the “Bullying and Harassing Behavior Prohibited” policy:

• Bullying can be …
• “repeated acts of disrespect, intimidation, or threats.”
• Bullying is not …
• “the exercise of legitimate authority” or “work performance monitoring and evaluation.”
• HR will often have to investigate to determine whether the conduct does or does not meet the definition of bullying. Scope of investigation will depend on scope of allegations.

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Role of HR in Grievance/Complaint Processes

Consider the “Discrimination and Harassment in the Workplace” policy:

• Harassment can be …
• “conduct [that] is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive”
• Harassment is not …
• “Petty slights, annoyances, simple teasing, offhand comments, or isolated incidents (unless extremely serious) are not harassment under this policy, nor are reasonable performance management actions taken to direct and control how work is performed or to monitor and give feedback on work performance. The exercise of legitimate authority administered in a professional and constructive manner is not harassment under this policy.”
• HR will often have to investigate to determine whether the conduct does or does not meet the definition of harassment. Scope of investigation will depend on the scope of the allegations.
• BUT, even if there is not a policy violation, HR may address other concerns raised by the review.

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Don’t Forget Informal Resolution!

So You Just Received a Grievance…

1. Acknowledge Receipt
2. Define the Grievance
1. What are the factual questions to be reviewed/decided?
2. What remedy/action is the grievant seeking?
3. Plan out the Investigation Process
4. Execute the Process
5. Communicate the Results
6. Manage any Appeals

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Does the Grievance Policy Apply?

Investigating the Grievance

Key Steps in the Process

1. Meet with the Grievant!
1. What is the problem?
2. What resolution do they want?
2. Meet with the individuals accused of causing the problem
• What is their side of the story?
• What documentation do they have?
3. Speak to other witnesses
4. Locate and Review Documentary Evidence
• Emails
• Text messages
• Personnel Files

Responding to the Grievance

Decision Letter Considerations

1. Who is my audience? (Grievant or Appeal Decider?)
2. How sympathetic can I be without adding fuel to the fire?
3. How much detail do I provide with respect to my investigation?
4. How can I describe the allegations without making it sound like those are the undisputed facts?
5. How do I communicate a decision in which the supervisor screwed up but it wasn’t a policy violation / discriminatory / bullying?
6. Who has the burden of proof?

Handling Grievance Appeals

How to Make Sure Your Decision is Upheld

• Describe your investigation in the response letter with enough detail that the reviewer knows you were thorough
• Keep all the evidence in one place and provide it to the appellate reviewer in an organized fashion
• Label documents for clarity
• Use highlights where appropriate for key information
• Make your decision sound as fair and reasonable as possible
• If you present, don’t “mail it in” – your confidence in your review may be as important as the evidence you present

Tips for Handling Grievances

• Know your policies!
• Avoid the word “grievance” until you’re sure it’s a grievance
• Where possible, communicate in writing (even as a follow-up)
• Throw the grievant a bone (but only a small one and only if true)
• Write with the appeal audience in mind

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HR Directors Use This One Weird Trick!

What NOT to Do

• The “I’ll Get Around To It” Blunder
• The “Let’s Keep This Informal (Without Grievant Consent)” Blunder
• The “Just Re-Use the Principal’s School-Level Review” Blunder
• The “Invitation to Grievance Creep” Blunder
• The “Get Some Input From the School Board” Blunder
• The “I Guess We Should Have Put This Employee On an Action Plan Earlier” Blunder

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Blunders to Avoid…

• Creating a record for possible future employment decisions (against either the grievant or the supervisor)
• Foundation for defending against any lawsuits
• “Deliberate indifference”
• “Arbitrary and Capricious”
• Protect HR!

Why are Grievance Investigations so Critical?

Questions?

THANK YOU