SUBCHAPTER 1J ‑ EMPLOYEE RELATIONS
SECTION .0100 ‑ EMPLOYEE RELATIONS SECTION
25 NCAC 01J .0101 AUTHORITY
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. October 1, 1977;
Repealed Eff. August 1, 1978.
25 NCAC 01J .0102 ORGANIZATION
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Repealed Eff. December 1, 1978.
SECTION .0200 ‑ EMPLOYEE SUGGESTION SYSTEM
25 NCAC 01J .0201 EMPLOYEE AWARDS
25 NCAC 01J .0202 STATE EMPLOYEE AWARDS COMMITTEE
25 NCAC 01J .0203 RESPONSIBILITY OF COMMITTEE
25 NCAC 01J .0204 EXECUTIVE SECRETARY
25 NCAC 01J .0205 COMMITTEE RECORDS
25 NCAC 01J .0206 DEPARTMENTAL AWARDS COMMITTEES
25 NCAC 01J .0207 ESTABLISHMENT
25 NCAC 01J .0208 RESPONSIBILITY
25 NCAC 01J .0209 DEPARTMENTAL RECORDS
25 NCAC 01J .0210 PARTICIPANTS
25 NCAC 01J .0211 AWARDS
25 NCAC 01J .0212 HOW TO SUBMIT A SUGGESTION
25 NCAC 01J .0213 PROCEDURE FOR PROCESSING SUGGESTIONS
25 NCAC 01J .0214 NON‑MONETARY AWARDS
25 NCAC 01J .0215 CASH AWARDS
25 NCAC 01J .0216 LEGISLATIVE ACTION
25 NCAC 01J .0217 INVENTIONS
25 NCAC 01J .0218 LIMITS ON ADDITIONAL COMPENSATION
25 NCAC 01J .0219 IDENTICAL OR SIMILAR SUGGESTIONS
25 NCAC 01J .0220 TERMINATION OF EMPLOYEE STATUS
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Repealed Eff. August 1, 1978.
SECTION .0300 ‑ AFFIRMATIVE ACTION PLANS
25 NCAC 01J .0301 ROLE OF EMPLOYEE RELATIONS
25 NCAC 01J .0302 POLICY MONITORING PROCEDURES OF AFFIRMATIVE ACTION
25 NCAC 01J .0303 FILING OF AFFIRMATIVE ACTION PLANS
25 NCAC 01J .0304 REPORTING OF PLANS
25 NCAC 01J .0305 MONITORING AND ASSISTANCE
25 NCAC 01J .0306 DATA COMPILATION: ETHNIC CENSUS SURVEYS
25 NCAC 01J .0307 QUARTERLY EVALUATION
25 NCAC 01J .0308 AFFIRMATIVE ACTION FORMS
25 NCAC 01J .0309 ETHNIC CENSUS SURVEY FORMS
History Note: Authority G.S. 126‑16;
Eff. February 1, 1976;
Repealed Eff. October 1, 1977.
SECTION .0400 ‑ EMPLOYEE RECOGNITION PROGRAMS
25 NCAC 01J .0401 STATE PERSONNEL RESPONSIBILITY
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. December 1, 1995;
Recodified to 25 NCAC 01C .0901 Eff. December 29, 2003.
25 NCAC 01J .0402 POLICY: SERVICE AWARDS PROGRAM
25 NCAC 01J .0403 TYPES OF AWARDS
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. May 1, 1989;
Repealed Eff. December 1, 1995.
25 NCAC 01J .0404 AGENCY RESPONSIBILITY
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. December 1, 1995;
Recodified to 25 NCAC 01C .0902 Eff. December 29, 2003.
25 NCAC 01J .0405 EXEMPT EMPLOYEES
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Repealed Eff. December 1, 1995.
25 NCAC 01J .0406 ELIGIBILITY REQUIREMENTS
History Note: Filed as a Temporary Amendment Eff. January 1, 1989 for a Period of 180 Days to Expire on June 29, 1989;
Authority G.S. 126‑4(10);
Eff. February 1, 1976;
Amended Eff. December 1, 1995; May 1, 1989; March 1, 1989; July 1, 1983;
Recodified to 25 NCAC 01C .0903 Eff. December 29, 2003.
25 NCAC 01J .0407 ADDITIONAL CREDIT
25 NCAC 01J .0408 OTHER PROVISIONS
History Note: Filed as a Temporary Amendment Eff. January 1, 1989 for a Period of 180 Days to Expire on June 29, 1989;
Authority G.S. 126‑4(10);
Eff. February 1, 1976;
Amended Eff. July 1, 1989; May 1, 1989; March 1, 1989; January 1, 1989;
Repealed Eff. December 1, 1995.
25 NCAC 01J .0409 SELECTING THE SERVICE EMBLEMS
25 NCAC 01J .0410 PURCHASING
25 NCAC 01J .0411 RECORDS
25 NCAC 01J .0412 FUNDS
25 NCAC 01J .0413 GUARANTEE
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Repealed Eff. December 1, 1995.
25 NCAC 01J .0501 GENERAL PROVISIONS
25 NCAC 01J .0502 AGENCY RESPONSIBILITIES
25 NCAC 01j .0503 MINIMUM PROCEDURAL REQUIREMENTS
25 NCAC 01J .0504 ALTERNATIVE DISPUTE RESOLUTION
25 NCAC 01J .0505 MINIMUM PROCEDURAL REQUIREMENTS - ALTERNATIVE DISPUTE RESOLUTION (ADR)
25 NCAC 01j .0506 DISCRIMINATION
History Note: Authority G.S. 126-1A (until July 1, 1996) then 126-1.1; 126-4(9); 126‑4(10); 126-4(17); 126-7.2; 126-16; 126-25; 126‑34; 126-34.1; 126-34.2; 126‑35; 126-36; 126-37; 126-38; 126‑39; 150B‑23;
Eff. February 1, 1976;
Amended Eff. August 1, 2000;
Temporary Amendment Eff. February 18, 1999;
Amended Eff. December 1, 1995; May 1, 1989; April 1, 1989; February 1, 1989; July 1, 1988; December 1, 1985; October 1, 1985; October 1, 1980; October 1, 1977;
Repealed Eff. March 1, 2005.
25 NCAC 01J .0507 LEAVE IN CONNECTION WITH GRIEVANCES
25 NCAC 01J .0508 SPC APPROVAL OF ADR AGREEMENT
History Note: Authority G.S. 126‑4(9); 126-4(17); 126-34.2; 126‑35; 150B‑23;
Eff. December 1, 1985;
Amended Eff. December 1, 1995; April 1, 1989;
Repealed Eff. March 1, 2005.
25 NCAC 01J .0509 AGENCY GRIEVANCE REPORTS
25 NCAC 01J .0510 FINAL AGENCY ACTION
25 NCAC 01J .0511 GRANDFATHER CLAUSE
History Note: Authority G.S. 126‑4(9); 126‑7.2; 126‑35; 126‑37; 126‑38; 150B‑23(a);
Eff. December 1, 1995;
Repealed Eff. March 1, 2005.
SECTION .0600 ‑ DISCIPLINARY ACTION: SUSPENSION AND DISMISSAL
25 NCAC 01J .0601 PERMANENT EMPLOYEES
25 NCAC 01J .0602 WRITTEN STATEMENT
History Note: Authority G.S. 126‑35; 126‑39;
Eff. February 1, 1976;
Amended Eff. October 1, 1977;
Repealed Eff. October 1, 1984.
25 NCAC 01J .0603 APPEALS
(a) A career employee who has been demoted, suspended or dismissed shall have 15 calendar days from the date of his receipt of written notice of such action to file an appeal with his department/university grievance procedure. If an employee does not appeal his dismissal through the agency grievance procedure within 15 days, the initial letter of dismissal setting forth the specific acts or omissions that are the basis of the dismissal shall become the agency's final agency decision. If an employee appeals his dismissal through the agency grievance procedure, then the initial dismissal letter shall not constitute the final agency decision, but the final agency decision shall be the decision made at the conclusion of the employee's appeal through the agency grievance procedure. Grievances which do not allege discrimination, a violation of G.S. 126-7.1(a) or (c), a violation of G.S. 126-82, or that do not allege a denial of employment or promotion in violation of G.S. 126-14.2 must follow the department or university grievance procedure. An appeal to the State Personnel Commission of a final departmental or university decision must be filed with the Office of Administrative Hearings in accordance with G.S. 150B-23 within 30 calendar days of receipt of the final agency decision. Grievances which allege unlawful workplace harassment must be submitted in writing to the agency or department, within 30 calendar days of the alleged harassing action, and the agency or department must be given 60 calendar days in which to take remedial action, if any, unless the department or agency has waived the 60-day period, and the employee has acknowledged such waiver. The acknowledgement and waiver shall be in writing. An appeal to the State Personnel Commission of unlawful workplace harassment must be filed with the Office of Administrative Hearings in accordance with G.S. 150B-23 and within 30 calendar days of notification of the remedial action, if any, taken by the agency.
(b) Grievances which allege discrimination not including unlawful workplace harassment may, at the election of the employee, proceed through the department or university procedure or proceed directly to the State Personnel Commission (SPC) for a hearing by the Office of Administrative Hearings (OAH) and a decision by the SPC. A direct appeal to the SPC (such appeal involving a contested case hearing by the OAH and a decision by that agency to the SPC) alleging discrimination not including unlawful workplace harassment must be filed in accordance with G.S. 150B-23 and must be filed within 30 calendar days of receipt of notice of the alleged discriminatory act.
(c) Grievances which allege a violation of G.S. 126-14.2 must be filed with the Civil Rights Division of the OAH within 30 calendar days after the employee or applicant receives written notice that the position in question has been filled. The employee or applicant must file a petition for a contested case hearing pursuant to G.S. 126-34.1 and Article 3 of Chapter 150B within 15 days of the initial determination by the OAH Civil Rights Division that there has been a violation of G.S. 126-14.2.
(d) Grievances filed on an untimely basis (see G.S. 126-14.4, 126-35, 126-36 and 126-38) must be dismissed. Allegations of discrimination raised more than 30 calendar days after receipt of notice of the occurrence of the alleged discriminatory act must be dismissed. Grievances alleging unlawful workplace harassment raised more than 30 calendar days after notification of the remedial action, if any, taken by the agency must be dismissed.
History Note: Authority G.S. 126-1A; 126-35; 126-36; 126-38; 150B, Article 3; 150B-23;
Eff. February 1, 1976;
Amended Eff. March 1, 1994; April 1, 1989; December 1, 1984; October 1, 1984;
Temporary Amendment Eff. February 18, 1999;
Amended Eff. February 1, 2011; July 18, 2002.
25 NCAC 01J .0604 JUST CAUSE FOR DISCIPLINARY ACTION
(a) Any employee, regardless of occupation, position or profession may be warned, demoted, suspended or dismissed by the appointing authority. Such actions may be taken against career employees as defined by the State Personnel Act, only for just cause. The provisions of this section apply only to employees who have attained career status. The degree and type of action taken shall be based upon the sound and considered judgment of the appointing authority in accordance with the provisions of this Rule. When just cause exists the only disciplinary actions provided for under this Section are:
(1) Written warning;
(2) Disciplinary suspension without pay;
(3) Demotion; and
(4) Dismissal.
(b) There are two bases for the discipline or dismissal of employees under the statutory standard for "just cause" as set out in G.S. 126-35. These two bases are:
(1) Discipline or dismissal imposed on the basis of unsatisfactory job performance, including grossly inefficient job performance.
(2) Discipline or dismissal imposed on the basis of unacceptable personal conduct.
(c) Either unsatisfactory or grossly inefficient job performance or unacceptable personal conduct as defined in 25 NCAC 1J. 0614 of this Section constitute just cause for discipline or dismissal. The categories are not mutually exclusive, as certain actions by employees may fall into both categories, depending upon the facts of each case. No disciplinary action shall be invalid solely because the disciplinary action is labeled incorrectly.
(d) The imposition of any disciplinary action shall comply with the procedural requirements of this Section.
History Note: Authority G.S. 126‑1A; 126‑35;
Eff. February 1, 1976;
Amended Eff. October 1, 1995; March 1, 1994; August 2, 1993; October 1, 1984.
25 NCAC 01J .0605 DISMISSAL FOR UNSATISFACTORY PERFORMANCE OF DUTIES
(a) The intent of this Section is to assist and promote improved employee performance, rather than to punish. This Rule covers all types of performance-related inadequacies. This Section does not require that successive disciplinary actions all concern the same type of unsatisfactory performance. Disciplinary actions related to personal conduct may be included in the successive system for performance-related dismissal provided that the employee receives at least the number of disciplinary actions, regardless of the basis of the disciplinary actions, required for dismissal on the basis of inadequate performance. Disciplinary actions administered under this Section are intended to bring about a permanent improvement in job performance. Should the required improvement later deteriorate, or other inadequacies occur, the supervisor may deal with this new unsatisfactory performance with further disciplinary action.
(b) In order to be dismissed for a current incident of unsatisfactory job performance an employee must first receive at least two prior disciplinary actions: First, one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal.
(c) Prior to the decision to dismiss an employee, a management representative must conduct a pre-dismissal conference with the employee in accordance with the procedural requirements of this Section.
(d) An employee who is dismissed must receive written notice of the specific reasons for the dismissal, as well as notice of any applicable appeal rights.
(e) Failure to give specific written reasons for the dismissal, failure to give written notice of applicable appeal rights, or failure to conduct a predismissal conference constitute procedural violations with remedies as provided for in 25 NCAC 1B .0432. Time limits for filing a grievance do not start until the employee receives written notice of any applicable appeal rights.
History Note: Authority G.S. 126‑4; 126‑35;
Eff. February 1, 1976;
Amended Eff. October 1, 1995; July 1, 1989; January 1, 1989; December 1, 1984.
25 NCAC 01J .0606 DISMISSAL FOR GROSSLY INEFFICIENT JOB PERFORMANCE
(a) Dismissal on the basis of grossly inefficient job performance is administered in the same manner as for unacceptable personal conduct. Employees may be dismissed on the basis of a current incident of grossly inefficient job performance without any prior disciplinary action.
(b) Prior to dismissal of a career employee on the basis of grossly inefficient job performance, there shall be a pre-dismissal conference between the employee and the person recommending dismissal. This conference shall be held in accordance with the provisions of 25 NCAC 1J. 0613.
(c) Dismissals for grossly inefficient job performance require written notification to the employee. Such notification must include specific reasons for the dismissal and notice of the employee's right of appeal.
(d) Failure to give specific written reasons for the dismissal, failure to give written notice of applicable appeal rights, or failure to conduct a predismissal conference constitute procedural violations with remedies as provided for in 25 NCAC 1B .0432. Time limits for filing a grievance do not start until the employee receives written notice of any applicable appeal rights.
History Note: Authority G.S. 126‑4(7a);
Eff. February 1, 1976;
Amended Eff. October 1, 1995; September 1, 1991; March 1, 1990; November 1, 1989.
25 NCAC 01J .0607 EXAMPLES OF RELATING TO PERFORMANCE OF DUTIES
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Repealed Eff. October 1, 1984.
25 NCAC 01J .0608 DISMISSAL FOR PERSONAL CONDUCT
(a) Employees may be dismissed for a current incident of unacceptable personal conduct, without any prior disciplinary action.
(b) Prior to dismissal of a career employee on the basis of unacceptable personal conduct, there shall be a pre-dismissal conference between the employee and the person recommending dismissal. This conference shall be held in accordance with the provisions of 25 NCAC 1J .0613.
(c) Dismissals for unacceptable personal conduct require written notification to the employee. Such notification must include specific reasons for the dismissal and notice of the employee's right of appeal.
(d) Failure to give specific written reasons for the dismissal, failure to give written notice of applicable appeal rights, or failure to conduct a pre-dismissal conference constitute procedural violations with remedies as provided for in 25 NCAC 1B .0432. Time limits for filing a grievance do not start until the employee receives written notice of any applicable appeal rights.
History Note: Authority G.S. 126‑1A; 126‑4; 126‑35;
Eff. February 1, 1976;
Amended Eff. October 1, 1995; March 1, 1994; July 1, 1989; August 1, 1985.
25 NCAC 01J .0609 EXAMPLES OF CAUSES RELATING TO PERSONAL CONDUCT
History Note: Authority G.S. 126‑4; 126‑35;
Eff. February 1, 1976;
Repealed Eff. October 1, 1984.
25 NCAC 01J .0610 WRITTEN WARNING
(a) The supervisor shall monitor and promote the satisfactory performance of work assignments and assure that employees do not engage in unacceptable personal conduct. All types of performance-related job inadequacies may constitute unsatisfactory job performance under this Section. Unacceptable personal conduct may be work-related and non-work-related conduct and may be intentional or unintentional. When the supervisor determines that disciplinary action is appropriate for unsatisfactory job performance, a written warning is the first type of disciplinary action that an employee must receive. The supervisor may elect to issue a written warning for grossly inefficient job performance or unacceptable personal conduct. The written warning must:
(1) Inform the employee that this is a written warning, and not some other non-disciplinary process such as counseling;
(2) Inform the employee of the specific issues that are the basis for the warning;
(3) Tell the employee what specific improvements if applicable must be made to address these specific issues;
(4) Tell the employee the time frame allowed for making the required improvements/corrections. Absent a specified time frame, 60 days is the time frame allowed for unsatisfactory job performance and immediate correction is required for grossly inefficient job performance or unacceptable personal conduct;
(5) Tell the employee the consequences of failing to make the required improvements/corrections;
(b) A written warning must be issued in accordance with the procedural requirements of this Section, and include any applicable appeal rights.
History Note: Authority G.S. 126‑4;
Eff. February 1, 1976;
Amended Eff. October 1, 1995; November 1, 1990; January 1, 1989; September 1, 1988.
25 NCAC 01J .0611 DISCIPLINARY SUSPENSION WITHOUT PAY
An employee may be suspended without pay for disciplinary purposes for unsatisfactory job performance after the receipt of at least one prior disciplinary action or for causes relating to any form of unacceptable personal conduct or grossly inefficient job performance. A disciplinary suspension without pay for an employee who is subject to the overtime compensation provisions of the Fair Labor Standards Act (FLSA) must be for at least one full work day, but not more than two work weeks. The length of a disciplinary suspension without pay for an employee who is exempt from the overtime compensation provisions of the FLSA must be for at least one full work week, but not more than two full work weeks. Prior to placing any employee on disciplinary suspension without pay, a management representative shall conduct a pre-suspension conference with the employee in accordance with the procedural requirements of this Section. An employee who has been suspended without pay must be furnished a statement in writing setting forth the specific acts or omissions that are the reasons for the suspension and the employee's appeal rights.
An agency or university has the option of imposing the same periods of disciplinary suspension without pay upon all employees as long as the period is the same as for employees exempt from the overtime provisions of the FLSA as set forth in this Section.
History Note: Authority G.S. 126‑4(6); 126‑35;
Eff. October 1, 1984;
Amended Eff. October 1, 1995; January 1, 1989; September 1, 1988;
Pursuant to G.S. 150B-33(b)(9), Administrative Law Judge Beecher Gray declared rule 25 NCAC 01J .0611 void as applied in Michael A. Kelly, Steven Wayne Mobley v. NC Department of Environment and Natural Resources (04 OSP 1572; 04 OSP 1573; Affirmed 664 S.E.2d 625).
25 NCAC 01J .0612 DEMOTION
(a) Any employee may be demoted as a disciplinary measure. Demotion may be made on the basis of either unsatisfactory or grossly inefficient job performance or unacceptable personal conduct.
(1) Unsatisfactory Job Performance. An employee may be demoted for unsatisfactory job performance after the employee has received at least one prior disciplinary action.
(2) Grossly Inefficient Job Performance. An employee may be demoted for grossly inefficient job performance without any prior disciplinary action.
(3) Personal Conduct. An employee may be demoted for unacceptable personal conduct without any prior disciplinary action.
(4) An employee who is demoted must receive written notice of the specific reasons for the demotion, as well as notice of any applicable appeal rights.
(b) Disciplinary demotions may be accomplished in three ways:
(1) The employee may be demoted to a lower pay grade with a reduction in salary rate as long as the new salary rate does not exceed the maximum of the salary schedule for the new lower pay grade;
(2) The employee may be demoted to a lower pay grade without a reduction in salary rate as long as the salary rate does not exceed the maximum of the salary schedule for the new lower pay grade; or
(3) The employee may be demoted while retaining the same pay grade with a reduction in salary rate. In no event shall an employee's salary rate be reduced to less than the minimum salary rate for the applicable pay grade or the special entry rate, if in effect.
(c) Prior to the decision to demote an employee for disciplinary reasons, a management representative must conduct a pre-demotion conference with the employee in accordance with the procedural requirements of this Section.
History Note: Authority G.S. 126‑4(6);
Eff. October 1, 1984;
Amended Eff. October 1, 1995; January 1, 1989.
25 NCAC 01J .0613 PROCEDURAL REQUIREMENTS
The following procedural requirements shall be followed to issue disciplinary action under this Section:
(1) WRITTEN WARNING - to issue a written warning to an employee, a supervisor shall issue the employee a written warning, detailing the matters referenced in Rule .0610(a)(1) - (5) of this Section and including any applicable appeal rights.
(2) DISCIPLINARY SUSPENSION WITHOUT PAY - to place an employee on disciplinary suspension without pay, a supervisor shall comply with the following procedural requirements:
(a) In matters of unsatisfactory job performance, insure that the employee has received at least one prior disciplinary action. In matters of grossly inefficient job performance or unacceptable personal conduct there are no pre-conditions so an employee may be suspended without pay for a current incident of grossly inefficient performance or unacceptable misconduct;
(b) Schedule and conduct a pre-suspension conference. Advance oral or written notice of the appropriate pre-disciplinary conference shall be given to the employee of the time, location, and the issue for which discipline has been recommended. The amount of advance notice shall be as much as is practical under the circumstances;
(c) Furnish the employee a statement in writing setting forth the specific acts or omissions that are the reasons for the suspension;
(d) Advise the employee of any applicable appeal rights in the document effecting the suspension.
(3) DEMOTION - to demote an employee, a supervisor shall comply with the following procedural requirements:
(a) In matters of unsatisfactory job performance, insure that the employee has received at least one prior disciplinary action;
(b) In matters of grossly inefficient job performance or unacceptable personal conduct, there is no requirement for previous disciplinary action, so an employee may be demoted for a current incident of grossly inefficient job performance or unacceptable personal conduct without any prior disciplinary action;
(c) Advance oral or written notice of the appropriate pre-disciplinary conference shall be given to the employee of the time, location, and the issue for which discipline has been recommended. The amount of advance notice shall be as much as is practical under the circumstances;
(d) An employee who is demoted shall receive written notice of the specific acts or omissions that are the reasons for the demotion;
(e) An employee shall be advised of how and to what extent the demotion will affect the employee's salary rate or pay grade; and
(f) The employee shall also be advised of any applicable appeal rights in the document effecting the demotion.
(4) DISMISSAL - Before an employee may be dismissed, a supervisor shall comply with the following procedural requirements:
(a) The Supervisor recommending dismissal shall discuss the recommendation with appropriate agency management and receive management's authorization to hold a pre-dismissal conference with the employee. The person conducting the pre-dismissal conference shall have the authority to recommend or to decide what, if any disciplinary action shall be imposed on the employee;
(b) The Supervisor or designated management representative shall schedule a pre-dismissal conference with the employee;
(c) Advance written notice of the pre-dismissal conference shall be given to the employee of the time, location, and the issue for which dismissal has been recommended. The amount of advance notice shall be as much as is practical under the circumstances;
(d) The Supervisor or designated management representative shall conduct a pre-dismissal conference with the employee, limiting attendance to the employee and the person conducting the conference; a second management representative may be present at management's discretion. The purpose of the pre-dismissal conference shall be to review the recommendation for dismissal with the affected employee and to listen to and to consider any information put forth by the employee, in order to insure that a dismissal decision is sound and not based on misinformation or mistake. Security personnel may be present when, in the discretion of the person conducting the conference, a need for security exists. No attorneys representing either side may attend the conference;
(e) In the conference, the Supervisor shall give the employee oral or written notice of the recommendation for dismissal, including specific reasons for the proposed dismissal and a summary of the information supporting that recommendation. The employee shall have an opportunity to respond to the proposed dismissal, to refute information supporting the recommended dismissal action and to offer information or arguments in support of the employee's position. Every effort shall be made by the Supervisor or the designated management representative to assure that the employee has had a full opportunity to set forth any available information in opposition to the recommendation to dismiss prior to the end of the conference. This opportunity shall not include the right to present witnesses;
(f) Following the conference, management shall review and consider the response of the employee and reach a decision on the proposed recommendation. If management's decision is to dismiss the employee, a written letter of dismissal containing the specific reasons for dismissal, the effective date of the dismissal and the employee's appeal rights shall be issued to the employee in person or by certified mail, return receipt requested, to the last known address of the employee. To minimize the risk of dismissal upon erroneous information, and to allow time following the conference for management to review all necessary information, the decision to dismiss should not be communicated to the employee in accordance with this Paragraph, prior to the beginning of the next business day following the conclusion of the pre-dismissal conference or after the end of the second business day following the completion of the pre-dismissal conference;
(g) The effective date of a dismissal for unsatisfactory job performance shall be determined by management. A career employee who is dismissed for unsatisfactory job performance may, at management's discretion, be given up to two weeks' working notice of his dismissal. Instead of providing up to two weeks' working notice and at the discretion of management, an employee may be given up to two weeks' pay in lieu of the working notice. Such working notice or pay in lieu of notice is applicable only to dismissals for unsatisfactory job performance. The effective date of the dismissal shall not be earlier than the letter of dismissal nor more than 14 calendar days after the notice of dismissal; and
(h) If an employee is dismissed and appeals his dismissal through the agency grievance procedure, the final agency decision shall set forth the specific acts or omissions that are the basis of the employee's dismissal. In addition, the employee shall be informed in the final agency decision letter that the final agency decision letter is a public record and that the agency is required by law to release it pursuant to any public record requests.
History Note: Authority G.S. 126-4; 126-35;
Eff. October 1, 1995;
Temporary Amendment Eff. February 12, 1996;
Amended Eff. August 1, 1996;
Temporary Amendment Expired November 26, 1996;
Amended Eff. February 1, 2011.
25 NCAC 01J .0614 DEFINITIONS
As used in this Subchapter:
(1) Current Unresolved Incident means conduct or performance that:
(a) constitutes a violation of this Section; and
(b) for which no disciplinary action has been previously imposed or issued by agency or university management.
(2) Disciplinary Demotion means a personnel action taken, without employee agreement, to discipline the employee, which results in:
(a) reduction in salary within the employee's current classification;
(b) an assignment to a position in a lower salary grade without a corresponding loss of salary; or
(c) an assignment to a position in a lower salary grade with a corresponding loss of salary.
(3) Disciplinary Suspension Without Pay means the removal of an employee from work for disciplinary purposes without paying the employee.
(4) Dismissal means the involuntary termination or ending of the employment of an employee for disciplinary purposes or failure to obtain or maintain necessary credentials.
(5) Gross Inefficiency (Grossly Inefficient Job Performance) means a type of unsatisfactory job performance that occurs in instances in which the employee: fails to satisfactorily perform job requirements as specified in the job description, work plan, or as directed by the management of the work unit or agency; and, that failure results in
(a) the creation of the potential for death or serious bodily injury to an employee(s) or to members of the public or to a person(s) over whom the employee has responsibility; or
(b) the loss of or damage to state property or funds that result in a serious impact on the State or work unit.
(6) Inactive Disciplinary Action means any disciplinary action issued after October 1, 1995 is deemed inactive for the purpose of this Section if:
(a) the manager or supervisor notes in the employee's personnel file that the reason for the disciplinary action has been resolved or corrected;
(b) the purpose for a performance-based disciplinary action has been achieved, as evidenced by a summary performance rating of level 3 (Good) or other official designation of performance at an acceptable level or better and at least a level 3 or better in the performance area cited in the warning or disciplinary action, following the disciplinary warning or action; or
(c) 18 months have passed since the warning or disciplinary action, the employee does not have another active warning or disciplinary action which occurred within the last 18 months.
(7) Insubordination means the willful failure or refusal to carry out a reasonable order from an authorized supervisor. Insubordination is unacceptable personal conduct for which any level of discipline, including dismissal, may be imposed without prior warning.
(8) Unacceptable Personal Conduct means:
(a) conduct for which no reasonable person should expect to receive prior warning;
(b) job-related conduct which constitutes a violation of state or federal law;
(c) conviction of a felony or an offense involving moral turpitude that is detrimental to or impacts the employee's service to the State;
(d) the willful violation of known or written work rules;
(e) conduct unbecoming a state employee that is detrimental to state service;
(f) the abuse of client(s), patient(s), student(s) or a person(s) over whom the employee has charge or to whom the employee has a responsibility or an animal owned by the State;
(g) absence from work after all authorized leave credits and benefits have been exhausted; or
(h) falsification of a state application or in other employment documentation.
(9) Unsatisfactory Job Performance means work-related performance that fails to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency.
History Note: Authority G.S. 126-4; 126-35;
Eff. October 1, 1995;
Amended Eff. January 1, 2011.
25 NCAC 01J .0615 SPECIAL PROVISIONS
(a) PLACEMENT ON INVESTIGATION - Investigation status is used to temporarily remove an employee from work status. Placement on investigation with pay does not constitute a disciplinary action as defined in this Section or in G.S. 126-35. Management must notify an employee in writing of the reasons for investigatory placement not later than the second scheduled work day after the beginning of the placement. An investigatory placement with pay may last no longer than 30 calendar days without written approval of extension by the agency head and the State Personnel Director. The State Personnel Director shall approve an extension of the period of investigatory status with pay, for no more than an additional 30 calendar days, for one or more of the following reasons:
(1) The matter is being investigated by law enforcement personnel, and the investigation is not complete;
(2) A management individual who is necessary for resolution of the matter is temporarily unavailable; or
(3) A person or persons whose information is necessary for resolution of the matter is/are temporarily unavailable.
(b) When an extension beyond the 30-day period is required, the agency must advise the employee in writing of the extension, the length of the extension, and the reasons for the extension. If no action has been taken by an agency by the end of the 30-day period and no further extension has been granted, the agency shall either take appropriate disciplinary action on the basis of the findings upon investigation or return the employee to active work status. It is not permissible to use placement on investigation status for the purpose of delaying an administrative decision on an employee's work status pending the resolution of a civil or criminal court matter involving the employee.
(c) It is permissible to place an employee in investigation status with pay only under the following circumstances:
(1) To investigate allegations of performance or conduct deficiencies that would constitute just cause for disciplinary action;
(2) To provide time within which to schedule and conduct a pre-disciplinary conference; or
(3) To avoid disruption of the work place and to protect the safety of persons or property.
(d) CREDENTIALS - Some duties assigned to positions in the state service may be performed only by persons who are licensed, registered or certified as required by the relevant law, rule, or provision. All such requirements and restrictions shall be specified in the statement of essential qualifications or recruitment standards for classifications established by the State Personnel Commission. Employees in such classifications shall obtain and maintain current, valid credentials as required by law. Failure to obtain or maintain the legally required credentials constitutes a basis for dismissal without prior warning, consistent with dismissal for unacceptable personal conduct or grossly inefficient job performance. An employee who is dismissed for failure to obtain or maintain credentials shall be dismissed under the procedural requirements applicable to dismissals for unacceptable personal conduct or grossly inefficient job performance. Falsification of employment credentials or other documentation in connection with securing employment constitutes just cause for disciplinary action. When credential or work history falsification is discovered after employment with a state agency, disciplinary action shall be administered as follows:
(1) If an employee was determined to be qualified and was selected for a position based upon falsified work experience, education, registration, licensure or certification information that was a requirement for the position, the employee must be dismissed in accordance with 25 NCAC 01J .0608.
(2) In all other cases of post-hiring discovery of false or misleading information, disciplinary action shall be taken, but the severity of the disciplinary action shall be at the discretion of the agency head.
(3) When credential or work history falsification is discovered before employment with a state agency, the applicant shall be disqualified from consideration for the position in question.
(e) Every disciplinary action shall include notification to the employee in writing of any applicable appeal rights.
(f) Warnings and placement on investigation with pay are not grievable unless an agency specifically provides for such a grievance in its agency grievance procedure. Absent an allegation of a violation of G.S. 126-25, warnings shall not appealable to the State Personnel Commission.
(g) An agency shall furnish to an employee as an attachment to the written documentation of any grievable disciplinary action, a copy of the agency grievance procedure.
(h) Each state agency shall adopt and submit to the State Personnel Commission an internal grievance procedure that includes as an attachment an agency employee relations policy which:
(1) Sets out the manner and mechanism with which employees are notified of changes in agency policy and State Personnel Commission rules;
(2) Sets out the policy on the use of disciplinary suspension and the procedure for the issuance of warnings;
(3) Sets out the policy on the retention of warnings and other disciplinary actions in employee personnel files; and
(4) Sets out the policy on how an employee may access the employee's personnel file.
(i) Each state agency shall maintain records and provide the OSP information and statistics on the discipline and dismissal process commencing in January 1996 and every year thereafter.
(j) Each state agency shall insure that designated personnel are trained in the administration of this Section.
History Note: Authority G.S. 126-4; 126-25; 126-35;
Eff. October 1, 1995;
Amended Eff. January 1, 2011; April 1, 2005.
SECTION .0700 ‑ WELLNESS IMPROVEMENT FOR STATE EMPLOYEES POLICY
25 ncac 01j .0701 PURPOSE
25 ncac 01j .0702 POLICY
25 ncac 01j .0703 ADMINISTRATION
History Note: Authority G.S. 126‑4(10);
Eff. February 1, 1986;
Amended Eff. July 1, 1989; January 1, 1989;
Repealed Eff. January 1, 2004.
SECTION .0800 ‑ GOVERNOR'S AWARD FOR EXCELLENCE
25 NCAC 01J .0801 PURPOSE
25 NCAC 01J .0802 AWARDS COMMITTEE
History Note: Authority G.S. 126‑4(15);
Eff. January 1, 1989;
Amended Eff. December 1, 1995; August 2, 1993.
Repealed Eff. October 1, 2006.
25 NCAC 01J .0803 NOMINATIONS
25 NCAC 01J .0804 AWARDS CATEGORIES
History Note: Authority G.S. 126‑4(15);
Eff. January 1, 1989;
Repealed Eff. December 1, 1995.
25 NCAC 01J .0805 AGENCY, DEPARTMENT OR UNIVERSITY RESPONSIBILITY
History Note: Authority G.S. 126‑4(15);
Eff. January 1, 1989;
Amended Eff. December 1, 1995;
Repealed Eff. October 1, 2006.
25 NCAC 01J .0806 NUMBER OF NOMINATIONS
History Note: Authority G.S. 126‑4(15);
Eff. January 1, 1989;
Repealed Eff. December 1, 1995.
25 NCAC 01J .0807 CRITERIA FOR SELECTION
History Note: Authority G.S. 126‑4(15);
Eff. February 1, 1989;
Repealed Eff. December 1, 1995.
25 NCAC 01J .0808 TYPE OF AWARD
25 NCAC 01J .0809 PROCEDURES
History Note: Authority G.S. 126‑4(15);
Eff. January 1, 1989;
Repealed Eff. December 1, 1995.
SECTION .0900 ‑ INTERNAL PERFORMANCE PAY DISPUTE RESOLUTION PROCEDURES
25 NCAC 01J .0901 A PROCEDURE SPECIFICALLY DESIGNED ONLY PERFORManCE PAY DISPUTES
The following are requirements and guidelines for an approved internal performance pay review process which is specifically designed to handle only performance pay disputes:
(1) Procedural:
(a) The employee shall have at least 15 calendar days in which to seek review of a performance pay decision from the date of receipt of action being disputed.
(b) An employee must receive a decision in writing by the agency head. This decision is final and cannot be appealed further. The agency should strive to see that the process is concluded within a reasonable period of time.
(c) Employees who receive an overall summary appraisal of less than "exceeds" must be informed in writing of the availability of an internal performance pay dispute resolution process and the time limit for filing a complaint at the time the overall summary rating is given.
(d) Employees who receive an overall summary rating of "exceeds" do not need to be informed at that time concerning the availability of an internal performance pay dispute resolution process and the time limit for filing a complaint. That information must be given to them when the decision concerning whether a performance pay increase will be given and the amount of such an increase is communicated. The employee, at the time that a decision is communicated, must be given written notice of the complaint resolution procedure and the time limit in which to file a complaint.
(e) Although a complaint may involve one or more issues in this area, an employee shall have only one opportunity to file a complaint on those issues. The final agency decision shall resolve all issues involving an employee's complaint so that no further appeal by the employee is necessary to resolve additional issues.
(2) The Review Mechanism:
(a) The first step in reviewing a performance management decision complaint shall be for the employee to review his complaint with his immediate supervisor or the appropriate management person. If the employee is not satisfied with the first step response, the next level of review will be by either the agency grievance committee or a separately constituted dispute resolution review board.
(b) The review will be conducted by a board consisting of at least three persons who will take information from the employee and from management's representative and will make a written recommendation, consistent with the information received, to the agency head. The agency head shall have the authority to accept or modify the board's recommendation or to adopt a different decision.
(c) Neither side will be permitted to be represented by an attorney. The proceeding shall not be tape recorded except as an administrative convenience to the review board. No person shall be required to testify under oath.
(d) The employee must be allowed to appear in person before the review board before a final agency decision is rendered.
(e) The review shall be held within reasonable geographic proximity to the employee's worksite. Witnesses, other than the employee and management's representative, shall be strictly limited. All members of the board shall be allowed to ask questions of the employee and management's representative. A majority vote, rather than a unanimous vote, of the board shall decide the recommendation to the agency head. Any travel required of the employee in order to get to the location of the review board hearing shall be done on state time; any mileage incurred as a result of this travel shall be reimbursed under existing budget guidelines.
(3) Agency Options:
(a) The agency may maintain a pool of qualified employees from whom boards can be constituted as needed or it may maintain a standing review board. If a standing board is chosen, it should consist of at least five members. The composition of the board should include representatives of all levels, including management, supervisors and non‑supervisory members. Whether a standing board or a pool of board members is used, each individual review board must have at least two non‑supervisory employees as members. Existing Personnel Commission policy (see 25 NCAC 1J .0503) concerning composition of grievance committees should be applied.
(b) The agency head should state in writing why he is not accepting the recommendation of the board.
(c) The agency head may choose to meet with the employee before reaching a final decision.
(4) Employee Options:
(a) The employee may speak in his own behalf. The employee may choose not to appear, but may have the matter reviewed on documentation provided by the employee and management.
(b) The employee may disqualify up to two of the board members designated to serve on his review board. Any board member disqualified by the employee shall be replaced with another member. Action by the employee in disqualifying a member or members from the board shall not operate to reduce the number of non‑supervisory employees on the board to less than two.
(5) Each agency and university which elects to use this procedure must submit its proposed procedure to the Office of State Personnel no later than January 2, 1990 for review and provisional approval. The Office of State Personnel shall transmit each procedure which has been provisionally approved to the State Personnel Commission for its review and approval.
History Note: Authority G.S. 126‑4;
Eff. January 1, 1990;
Amended Eff. November 1, 1990.
25 NCAC 01J .0902 REVIEW/PERFORMANCE PAY DISPUTES USING THE GRIEVANCE PROCEDURE
The following are requirements and guidelines for using an existing internal grievance procedure to incorporate a performance pay dispute review process:
(1) A performance pay dispute grievance may only proceed to those steps which have been given authority by the agency head to make a decision. Employees shall not be required to go to a level which does not have the authority to reverse the decision they are disputing. All applicable time frames of the grievance procedure, particularly in regard to turnaround time for decisions, shall be observed. All procedural aspects of the grievance procedure shall remain unchanged. As much as is possible, the agency should strive to give the employee a final agency decision in a reasonable period of time.
(2) The employee may remove up to two of the initial members of the grievance committee. If a member is removed, he shall be replaced with another member.
(3) The grievance committee shall contain at least two non‑supervisory employees as part of its makeup. Action by the employee in removing a member or members from the committee shall not operate to reduce the number of non‑supervisory employees on the committee to less than two.
History Note: Authority G.S. 126‑4;
Eff. January 1, 1990.
25 NCAC 01J .0903 DEFINITIONS
The following are definitions to be used in this Section:
(1) Performance pay dispute: A complaint by an employee concerning the amount of performance increase, the performance rating or a failure to receive any performance increase.
(2) Employee: Any employee who has successfully completed an initial probationary period.
(3) Remedy: The removal of a performance rating found to be inaccurate or misleading; the retroactive or prospective adjustment or granting of performance pay increase.
(4) Final agency decision: A decision in writing by the agency head.
History Note: Authority G.S. 126‑4; 126‑25;
Eff. January 1, 1990.
SECTION .1000 ‑ STATE EMPLOYEES' ASSISTANCE PROGRAM
25 ncac 01j .1001 PURPOSE
25 ncac 01j .1002 POLICY
25 ncac 01j .1003 ORGANIZATION OF PROGRAM
25 ncac 01j .1004 SERVICES OFFERED TO AGENCIES, UNIVERSITIES AND EMPLOYEES
History Note: Authority G.S. 126‑4(10);
Eff. June 1, 1992;
Repealed Eff. August 1, 2004.
25 ncac 01j .1005 ELIGIBILITY FOR SERVICES
History Note: Authority G.S. 126-4(10); 126-10;
Eff. August 3, 1992;
Repealed Eff. August 1, 2004.
25 ncac 01j .1006 SELF REFERRAL
25 ncac 01j .1007 SUPERVISORY REFERRAL
25 ncac 01j .1008 MANAGEMENT DIRECTED REFERRAL
25 ncac 01j .1009 CONFIDENTIALITY
25 ncac 01j .1010 RESPONSIBILITIES OF THE EMPLOYEE ASSISTANCE PROGRAM
25 ncac 01j .1011 RESPONSIBILITIES OF AGENCIES/UNIVERSITIES
History Note: Authority G.S. 126‑4(10);
Eff. June 1, 1992;
Repealed Eff. August 1, 2004.
25 ncac 01j .1012 PURPOSE
The State Employees' Assistance Program [EAP] is a worksite-based program that addresses productivity and fitness-for-duty issues by supporting employees and management in identifying and resolving personal concerns that adversely affect job performance or personal conduct. All referrals to the State Employees' Assistance Program shall originate from management in consultation with the agency or university Human Resources Office.
History Note: Authority G.S. 126-4(10);
Eff. August 1, 2004.
SECTION .1100 - UNLAWFUL WORKPLACE HARRASSMENT
25 NCAC 01j .1101 POLICY
(a) Purpose. The purpose of this policy is to establish that the State of North Carolina prohibits in any form unlawful workplace harassment of state employees or applicants, and to require that every agency subject to the State Personnel Act establishes policies and programs to ensure that work sites are free of unlawful workplace harassment.
(b) Unlawful workplace harassment is defined as unsolicited, and unwelcome speech or conduct based upon race, sex, creed, religion, national origin, age, color, or disabling condition as defined by G.S. 168A-3 that creates a hostile work environment or circumstances involving quid pro quo.
(1) Hostile Work Environment is one that both a reasonable person would find hostile or abusive and one that the particular person who is the object of the harassment perceives to be hostile or abusive. Hostile work environment is determined by looking at all of the circumstances, including the frequency of the allegedly harassing conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance.
(2) Quid Pro Quo harassment consists of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct when:
(A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or
(B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.
(3) Retaliation is adverse action taken because of opposition to unlawful workplace harassment.
(c) Policy. The policy of the State of North Carolina is that no state employee may engage in conduct that falls under the definition of unlawful workplace harassment indicated in Paragraph (b) of this Rule. No personnel decisions shall be made on the basis of race, sex, creed, religion, national origin, age, color, or disabling condition as defined by G.S. 168A-3.
(d) All employees are guaranteed the right to work in an environment free from unlawful workplace harassment and retaliation. Unlawful workplace harassment shall henceforth be deemed a form of discrimination prohibited by G.S. 126-16 and G.S. 126-36.
(e) Grievances. Any current or former state employee who feels he/she has been the victim of unlawful workplace harassment in violation of this policy and G.S. 126-16 and G.S. 126-36 may file a grievance through the departmental grievance procedure. Filing such a written complaint shall be a prerequisite to any further appeal to the State Personnel Commission regarding unlawful workplace harassment. After the employee's written complaint is submitted to the department or agency, the department or agency shall have 60 days within which to consider the complaint and take any remedial action, unless the department or agency has waived the 60-day period, and the employee has acknowledged such waiver. The waiver and acknowledgement shall be in writing. Consistent with G.S. 126-34, G.S. 126-34.1, G.S. 126-36 and G.S. 126-36.1, any current or former state employee who feels that he/she has been subjected to unlawful workplace harassment may appeal directly to the State Personnel Commission (such appeal consisting of a contested case hearing under G.S. 150B and a decision by the State Personnel Commission) only after submitting a written complaint and after receiving notification of remedial action, if any, by the department or agency.
(f) Departmental Plans. Each department head or university chancellor shall include as a supplement to the Affirmative Action Plan a plan setting for the steps to be taken to prevent and correct unlawful workplace harassment. Each department or university shall submit such a plan to the Office of State Personnel for review, technical assistance, and approval by the Director of State Personnel. Each plan on unlawful workplace harassment shall, at the minimum, include:
(1) publishing and disseminating a policy statement establishing that unlawful workplace harassment of employees and applicants is prohibited;
(2) establishment of internal procedure to handle complaints of unlawful workplace harassment. This procedure shall provide prompt investigation and resolution of complaints within the department or university and shall offer the employee recourse other than through the immediate supervisor;
(3) utilization of training and other methods to prevent unlawful workplace harassment;
(4) stating that the department will, in allegations of unlawful workplace harassment, review the entire record and the totality of the circumstances, to determine whether the alleged conduct constitutes unlawful workplace harassment;
(5) development of disciplinary actions for conduct determined to constitute unlawful workplace harassment, to be implemented on a case by case basis on the facts of each complaint;
(6) prohibition of internal interference, coercion, restraint or reprisal against any person complaining of alleged unlawful workplace harassment;
(7) notification to all employees that a complaint or allegation of unlawful workplace harassment must be filed within the department or agency and that the agency or department has 60 days (or less, if waived by agency or department and acknowledged by employee) to take action, if any, in response to the complaint prior to the filing of a complaint of unlawful workplace harassment with the State Personnel Commission.
History Note: Authority G.S. 126-4; 126-16; 126-17; 126-36; 126-36.1;
Eff. December 1, 1980;
Amended Eff. November 1, 1988; April 1, 1983;
Temporary Amendment Eff. February 18, 1999;
Amended Eff. July 18, 2002;
Recodified from 25 NCAC 01C .0214 Eff. December 29, 2003.
SECTION .1200 ‑ EMPLOYEE GRIEVANCES
25 NCAC 01J .1201 GENERAL PROVISIONS
(a) This Section contains general provisions for two grievance procedure options: the Employee Appeals and Grievance Process, 25 NCAC 01J .1301 and the Employee Mediation and Grievance Process, 25 NCAC 01J .1400.
(b) Agencies may choose to adopt the Employee Appeals and Grievance Process, which does not offer mediation, or choose to adopt the Employee Mediation and Grievance Process. The provisions of 25 NCAC 01J .1201 through .1208 apply to both processes.
(c) An employee who has access to the agency grievance procedure shall initiate the grievance proceeding no later than 15 calendar days after the last act that constitutes the basis of the grievance.
(d) For the purpose of this Section, except for appeals brought under G.S. 126‑25, the term "career state employee" as used in this Section shall have the meaning assigned to it by the State Personnel Act. The employee must have attained career status at the time the act, grievance or employment practice that is the basis of the grievance occurs.
(e) Neither the agency nor the employee shall be represented by any outside parties during any internal grievance or mediation proceedings.
History Note: Authority G.S. 126-1.1; 126-4(17); 126-25; 126‑34; 126‑35; 126‑39;
Eff. March 1, 2005.
25 NCAC 01J .1202 AGENCY RESPONSIBILITIES
(a) The agency grievance procedure shall be implemented and continuously evaluated by the agency. Each agency shall, on or before January 1 of each even‑numbered year, submit to the Office of State Personnel either:
(1) the current agency grievance procedure for approval; or
(2) a statement that its grievance procedure has not changed since January 1 of the last prior even‑numbered year, including a certification that the current agency procedure is in compliance with current state law and rules and the effective date of the last change to the agency procedure.
(b) The Office of State Personnel shall review the reports of each agency as required by Rule .1203 of this Section and the grievance procedures of each agency for compliance with applicable law, rules and good employee relations practices. After such review and following resolution of any areas of disagreement, the Office of State Personnel shall forward the grievance procedure to the State Personnel Commission for reaffirmation of an unchanged agency grievance procedure previously approved or for approval of a new or modified agency grievance procedure. No agency grievance procedure is applicable to any employee until it has been approved by the State Personnel Commission.
History Note: Authority G.S. 126‑4(9);
Eff. March 1, 2005.
25 NCAC 01J .1203 AGENCY GRIEVANCE REPORTS
(a) Every agency shall, semi‑annually and as otherwise requested by the Office of State Personnel, compile information on employee grievances. These reports shall be due to the Office of State Personnel on the first business day of each of the following months: January and July.
(b) The Office of State Personnel shall make reports to the full State Personnel Commission at its February and August meetings based upon the information supplied in these semi‑annual agency reports.
History Note: Authority G.S. 126‑4(9);
Eff. March 1, 2005.
25 NCAC 01J .1204 DISCRIMINATION AND RETALIATION / SPECIAL PROVISIONS
Employees alleging illegal discrimination or retaliation may choose to follow the agency grievance procedure, including mediation, or choose to appeal directly to the State Personnel Commission. The 30-day timeframe to file a grievance alleging discrimination must be adhered to whether the employees choose to follow the agency grievance procedure, including mediation, or whether they choose to appeal directly to the State Personnel Commission by filing a petition for a contested case hearing with the Office of Administrative Hearings. The 30 day timeframe is not applicable to discrimination complaints filed with the Equal Employment Opportunity Commission.
History Note: Authority G.S. 126-4(9); 126-16; 126-17; 126-34.1(a);126-36(a);
Eff. March 1, 2005.
25 NCAC 01J .1205 UNLAWFUL WORKPLACE HARASSMENT
Employees alleging unlawful workplace harassment or retaliation concerning unlawful workplace harassment shall follow the procedure established in the agency Unlawful Workplace Harassment Policy, as required by 25 NCAC 01J .1101(f), in order to bring a subsequent appeal to the State Personnel Commission. Employees may by-pass any step in the agency's grievance procedure involving discussions with or review by the alleged harasser. The agency shall complete processing of an allegation of unlawful workplace harassment or retaliation within 60 days. Nothing in this Rule extends the amount of time an agency has in which to complete a review of such an allegation, even if the employee chooses mediation as an option in the agency's Unlawful Workplace Harassment Policy.
History Note: Authority G.S. 126-4(9); 126-4(11);) 126-34.1(a);126-36(b)(1),(2)
Eff March 1, 2005.
25 NCAC 01J .1206 Time Limits
(a) A final agency decision (FAD) must be issued within a reasonable period of time from the date the grievance is filed or the employee may, if eligible, appeal to the State Personnel Commission without receiving a FAD.
(b) For cases involving discharge or demotion of a career State employee for disciplinary reasons, the reasonable period of time is 90 days from the filing of the grievance to the issuance of the FAD. For all issues except demotion or dismissal, a reasonable period of time for an employee to receive a FAD is 120 days from the time the grievance was filed. The employee and the agency may mutually agree to extend the time in either case.
(c) If the employee cannot obtain the FAD within a reasonable period of time, the employee's right of appeal shall be governed by G.S. 126-34.1 and G.S.150B-23(f).
History Note: Authority G.S. 126-4(9); 126-34.1;
Eff. March 1, 2005.
25 NCAC 01J .1207 FINAL AGENCY ACTION
In every employee grievance in which the grievant has the right of appeal to the State Personnel Commission (SPC), the final decision of the agency head must inform the grievant in writing that any appeal from the final agency decision must be made to the SPC within 30 days after receipt of notice of the decision or action which triggers the right of appeal. Further, the agency shall inform the grievant in writing that an appeal to the SPC shall be made by filing a petition for contested case hearing with the Office of Administrative Hearings, 424 North Blount Street, 6714 Mail Service Center, Raleigh, North Carolina 27699‑6714.
History Note: Authority G.S. 126‑4(9); 126‑7.2; 126‑35; 126‑37; 126‑38; 150B‑23(a);
Eff. March 1, 2005.
25 NCAC 01J .1208 LEAVE IN CONNECTION WITH GRIEVANCES
(a) An employee shall be allowed time off from regular duties as may be necessary and reasonable up to a maximum of eight hours for the preparation of an internal grievance under the procedures adopted within the agency without loss of pay, vacation leave or other time credits.
(b) Necessary and reasonable time for participation in contested case hearings and other administrative proceedings outside the agency in connection with employment, as a party, shall be granted upon request to the employee's supervisor or personnel officer without loss of pay, vacation leave or other time credits. Management may require prior official notice of the scheduling of and documentation by the presiding official or designee of the time the employee spent in attendance at these administrative proceedings.
History Note: Authority G.S. 126‑4(9);
Eff. March 1, 2005.
SECTION .1300 ‑ EMPLOYEE APPEALS AND GRIEVANCE PROCESS
25 NCAC 01j .1301 MINIMUM PROCEDURAL REQUIREMENTS
The following provisions are the requirements of an agency employee appeals and grievance process for approval by the State Personnel Commission.
(1) An employee with a grievance that does not allege unlawful discrimination as defined by G.S. 126-16 or G.S. 126-36, that does not allege a violation of G.S. 126-7.1(a) or (c), that does not allege a violation of G.S. 126-82, or that does not allege a denial of employment or promotion in violation of G.S. 126-14.2 shall be required to first discuss the problem with the immediate supervisor. Where the grievance does not fall within the administrative or decision-making authority of the immediate supervisor, the immediate supervisor, shall within 48 hours of receipt of the grievance, refer the grievance to the lowest level supervisor with administrative or decision-making authority over the subject matter of the grievance and notify the employee of the fact of and the basis for the referral. The agency grievance procedure shall outline those issues in addition to contested case issues under G.S. 126-34.1, if any, that are grievable under each agency's internal grievance procedure and whether and to what extent persons who have not attained career status under G.S. 126-1.1 may utilize the agency grievance procedure.
(2) The employee shall have the right to have the decision of the immediate supervisor reviewed. The step or steps after the immediate supervisor's step shall include a step at which the employee has the right to orally present the grievance and where the reviewer is outside the employee's chain of command.
(3) Any decision rendered after the step of the supervisor's decision shall be issued in writing and the final agency decision shall be issued within a reasonable period of time as defined in 25 NCAC 01J .1206(b).
(4) At the step involving the reviewer (person or body) outside the employee's chain of command, the employee shall have the right to challenge whether the reviewer can render an unbiased decision. The agency grievance procedure shall establish a process for challenging the reviewer's impartiality and the process for the selection of a replacement when necessary.
(5) For matters that are contested case issues under G.S. 126-34.1, if the employee is not satisfied by the final decision of the agency head, the employee shall have the right to appeal to the State Personnel Commission within 30 days of receipt of the final agency decision. If the employee is unable within a reasonable period of time to obtain a final agency decision, the employee's right of appeal is governed by G.S. 150B-23(f).
(6) The agency shall state the methods of notifying current employees and newly appointed employees of any change to the agency grievance procedure no later than 30 days prior to the effective date of the change.
(7) The agency shall establish the time limit for the agency and employee to respond at each step in the grievance procedure. No time limit for an agency to respond or to act shall be more than twice the time limit for the employee.
(8) The grievance procedure shall include the effective date of the procedure and of any changes to the procedure.
(9) The grievance procedure shall comply with the requirements of 25 NCAC 01J .0615.
History Note: Authority G.S. 126‑4(9); 126‑4(10); 126-4(17); 126-7.2; 126-16; 126-34; 126-34.1; 126-34.2; 126‑35; 126-36; 126-37; 126-38; 150B‑23;
Eff. March 1, 2005.
SECTION .1400 ‑ EMPLOYEE MEDIATION AND GRIEVANCE PROCESS
25 NCAC 01J .1401 MINIMUM PROCEDURAL REQUIREMENTS
(a) Mediation involves the services of a neutral third person that assists an employee and an agency representative in resolving an employee grievance in a mutually acceptable manner.
(b) In situations where mediation does not produce agreement or if a grievance involves an issue that the agency has identified as not subject to mediation, employees may present the grievance to a Hearing Officer or Hearing Panel within the agency. The Hearing Officer or Hearing Panel shall forward a recommendation to the Agency Head for a Final Agency Decision (FAD).
(c) Employees may appeal the FAD to the Office of Administrative Hearings (OAH) where an Administrative Law Judge will render a recommended decision to the State Personnel Commission. The State Personnel Commission will issue a Final Decision and Order.
(d) Grievances alleging discrimination may, at the grievant's choice, proceed either through the agency procedure or may proceed directly to the OAH. Complaints of unlawful workplace harassment shall proceed through the agency's Unlawful Workplace Harassment procedure as required by 25 NCAC 01J, .1100.
History Note: Authority G.S. 126-4(1); 126-4(9); 126-34; 126-34.1; 126-16; 126-34.2; 126-35; 126-36; 126-37; 126-38; 150B-23;
Eff. March 1, 2005.
25 NCAC 01J .1402 FLEXIBILITY
Agencies shall have the flexibility to decide which grievable issues will not be subject to mediation. In addition, agencies may choose to mediate nongrievable issues by developing internal agency policies and procedures outside the scope of the rules in this Section. Agencies may utilize mediators serving in the OSP Mediator Pool, 25 NCAC 01J .1410, for mediating nongrievable issues. In such situations, OSP and the requesting agency shall work out a mutually acceptable process to access the mediator pool of resources.
History Note: Authority G.S. 126-4(9); 126-4(10);
Eff. March 1, 2005.
25 NCAC 01J .1403 INFORMAL MEETING WITH SUPERVISOR
For all grievable issues, the agencies shall encourage employees to first attempt to resolve a grievable issue with their immediate or other supervisor in the employee's chain of command.
History Note: Authority G.S. 126-4(9). 126-4(10);
Eff. March 1, 2005.
25 NCAC 01J .1404 MEDIATION PROCEDURE
(a) Where an agency has designated an issue as subject to mediation, mediation is Step 1 in the Employee Mediation and Grievance Process. Mediation follows unsuccessful attempts by employees to resolve grievable issues with their immediate or other supervisor in the employee's chain of command. An employee must begin the grievance process by filing a grievance in accordance with the agency's grievance procedure. An employee filing a grievance shall do so not later than 15 calendar days after the last incident for which the employee is filing the grievance or after unsuccessfully attempting to resolve the grievance informally, whichever is longer.
(b) The Office of State Personnel (OSP) shall assign mediators to grievances. The mediation process shall be concluded within 45 calendar days from the filing of the grievance unless the parties agree in writing to a longer period of time.
(c) Mediations shall be conducted in a location approved by the mediator and shall be scheduled for an amount of time determined by the mediator to be sufficient. Mediations may be recessed by the mediator and reconvened at a later time.
(d) Only mediators in the OSP Mediation Pool, 25 NCAC 01J .1410, shall mediate grievances presented by state agency employees.
(e) The following pertains to attendance at the mediation proceedings:
(1) A designated agency representative with the authority to reach an agreement shall attend on behalf of the agency.
(2) In situations where the selected mediator cannot attend the mediation, there must be an emergency substitution of a mediator. This substitution must be approved by the OSP Mediation Administrator or designee.
(3) OSP Mediation Administrator and designees may attend as observers.
(4) Representatives, advisors and attorneys are not permitted to attend.
(5) Audiotape, videotape or other automated recordings are not permitted.
(f) Because mediation is Step 1 of the internal agency grievance process, attorneys are not permitted to participate directly in the process. However, because a mediation that resolves an employee's grievance will result in a Mediation Agreement, either party may ask for a recess at any time during the mediation in order to obtain legal advice regarding the terms of the Mediation Agreement.
History Note: Authority G.S. 126-4(9); 126-4(10); 126-4(17); 126-34; 126-35;
Eff. March 1, 2005.
25 NCAC 01J .1405 CONCLUSION OF MEDIATION
(a) At the end of mediation, the mediator shall prepare either a Mediation Agreement that is signed by the parties, or a statement that mediation did not result in resolution.
(b) When mediation resolves a grievance, the following shall occur:
(1) Employee and agency representative sign a Mediation Agreement.
(2) Each party receives a copy of the signed Mediation Agreement.
(3) Mediation Agreements shall be maintained on file in the agency for not less than three years.
(4) Mediation Agreements shall not transfer to another agency if the employee transfers.
(5) Mediation Agreements shall be binding on both parties.
(c) Mediation Agreements are considered public documents under G.S. 132-1.3.
History Note: Authority G.S. 126-4(9); 126-4(10); 126-4(17);
Eff. March 1, 2005.
25 NCAC 01J .1406 LIMITATIONS ON A MEDIATION AGREEMENT
(a) Parties to the mediation shall not enter into an agreement that would exceed the scope of their authority. The Mediation Agreement shall:
(1) serve as a written record;
(2) not contain any provision contrary to State Personnel Commission rules, and applicable state and federal law; and
(3) not be transferable to another state agency.
(b) When mediation resolves a grievance but it is later determined that one or more provisions of the Mediation Agreement do not comply with State Personnel Commission rules, applicable state or federal law, the parties may return to mediation to resolve those issues that can be resolved by the parties.
(c) Any resolution achieved through mediation, to the extent that it involves a grievance or a contested case issue, shall be treated as a settlement agreement and, as such, is subject to approval by the State Personnel Director and the State Personnel Commission as outlined in Rule .1412 of this Section.
History Note: Authority G.S. 126-4(9); 126-4(10);
Eff. March 1, 2005.
25 NCAC 01J .1407 POST MEDIATION
(a) Employees and supervisors who breach a mediated agreement may be subject to disciplinary action up to and including dismissal based on unacceptable personal conduct.
(b) Except for the Mediation Agreement itself, all other documents generated during the course of mediation and any communications shared in connection with mediation are confidential to the extent provided by law.
(c) When mediation does not result in agreement, the employee may proceed to Step 2, 25 NCAC 01J .1411(6) through (8), in the grievance process following written notice to the employee that mediation did not result in resolution of the grievance.
History Note: Authority G.S. 126-4(6); 126-4(7); 126-4(10); 126-34;
Eff. March 1, 2005.
25 ncac 01j .1408 EMPLOYEE RESPONSIBILITIES FOR MEDIATION
Each employee shall:
(1) make a good faith effort to mediate disputes;
(2) attend mediations as scheduled by the agency; and
(3) notify agency personnel in advance when circumstances prevent the employee from attending a scheduled mediation. Failure to make such an advanced notification shall cause the grievance to be dismissed.
History Note: Authority G.S. 126-4(9);
Eff. April 1, 2005.
25 ncac 01J .1409 Agency Responsibilities for Mediation
(a) Each agency shall:
(1) administer the mediation program within the agency;
(2) appoint an agency intake coordinator who will be responsible for organizing the mediation process;
(3) determine suitable locations for conducting mediations;
(4) ensure confidentiality of the mediation to the extent provided by law;
(5) schedule only mediators from the OSP Mediation Pool for each mediation session;
(6) reimburse mediators for travel and other expenses at state approved rates and covering any administrative costs associated with mediation;
(7) designate management personnel, such as human resources personnel and legal counsel, to be available to answer questions that may arise during the mediation process;
(8) designate agency representatives who will mediate in good faith and who will have the authority to reach an agreement on behalf of the agency to resolve a grievance;
(9) submit data to OSP for the purpose of evaluating the mediation process for cost containment and resolution of grievances efficiently and effectively; and
(10) submit to OSP a copy of all Mediation Agreements executed by the agency.
(b) An agency employee designated to attend mediation on behalf of the agency shall notify agency personnel in advance when circumstances prevent the employee from attending a scheduled mediation. Failure to make such an advanced notification may subject the employee to disciplinary action.
History Note: Authority G.S. 126-4(6); 126-4(9); 126-4(10);
Eff. April 1, 2005.
25 NCAC 01J .1410 OFFICE OF STATE PERSONNEL RESPONSIBILITIES
The Office of State Personnel (OSP) shall:
(1) appoint the OSP Mediation Administrator as program manager;
(2) develop an OSP mediator pool;
(3) identify mediator training programs and resources; and
(4) conduct on-going studies/analysis to evaluate program effectiveness.
History Note: Authority G.S. 126-4(9); 126-4(10);
Eff April 1, 2005.
25 NCAC 01J .1411 AGENCY PROCEDURAL REQUIREMENTS FOR EMPLOYEE Mediation and Grievance Policy
The following are minimum procedures for an agency grievance process:
(1) The agency grievance procedure shall state the issues that, in addition to those listed in G.S. 126 may be grieved at the agency level.
(2) The agency grievance procedure shall list which issues are subject to mediation (Step 1) and which issues shall proceed directly to a grievance hearing (Step 2).
(3) The agency grievance procedure shall encourage direct communication between employees and their immediate supervisor or other supervisor in the chain of command to attempt to resolve the grievance.
(4) All decisions issued by the agency after the discussion between the employee and the immediate supervisor or other supervisor in the chain of command shall be in writing and a copy provided to the employee.
(5) For those issues subject to mediation, the agency grievance process shall require both the employee and an agency representative to mediate a dispute by attending a scheduled mediation.
(6) If mediation does not result in agreement, the employee is entitled to proceed to Step 2. The agency shall notify the employee within 10 days of the unsuccessful mediation of the option to present the grievance orally to a reviewer or reviewers outside of the chain of command, e.g., Hearing Officer or Hearing Panel.
(7) The employee shall have the right to challenge whether the person, or body of persons outside of the chain of command review level, can render an unbiased recommendation. The agency procedure shall establish a process for the challenge as well as the procedure for selection of a replacement reviewer, when necessary.
(8) The agency shall set up time limits for appeal and for the employee and the agency to respond to each other during the grievance procedure. The agency may not set any time limit for itself that is more than twice the time limit established for employees.
(9) An employee filing a grievance shall do so not later than 15 calendar days after the last incident for which the employee is filing the grievance unless the internal agency procedure provides for a longer period.
(10) Neither party to the grievance shall be represented by attorneys or other persons during the internal agency grievance procedure or during any mediation procedure.
History Note: Authority G.S. 126-4(9); 126-4(10); 126-34.1(a);
Eff. March 1, 2005.
25 NCAC 01J .1412 Office of State Personnel Responsibilities for Employee Mediation and Grievance Process
The Office of State Personnel shall:
(1) review each proposed Employee Mediation and Grievance Process for conformity with State Personnel Commission rules, and applicable state and federal law;
(2) present the procedure to the State Personnel Commission for consideration and approval at its next available scheduled meeting; and
(3) provide consultation and technical assistance to agencies as needed.
History Note: Authority G.S. 126-4(9); 126-4(10);
Eff. March 1, 2005.