By John V. Berry, Esq., www.berrylegal.com
Our law firm represents Virginia state employees in their employment grievances filed against their individual state agencies. Virginia has adopted an employee grievance procedure for Virginia employees to resolve their employment issues. The Virginia Grievance Procedure has a number of steps in this process. The grievance process is administered by the Virginia Department of Human Resource Management, Division of Employment Dispute Resolution (EDR).
Starting the Grievance Process
The first step in the grievance procedure for a Virginia state employee is to prepare a written grievance over the employment problem at issue. The employee involved must usually file a written grievance within 30 days of the date that an employee knew or should have known about the issue being grieved. This is very important. If a grievance is not filed in a timely manner, the grievance will likely be dismissed. The grievance must be submitted on what is known as Grievance Form A. If there is not enough space on Grievance Form A, attachments may be used in filing the grievance. The first step of the grievance process is generally filed with the employee’s immediate supervisor.
The Grievance Procedure Steps
The grievance process, once initiated, generally goes through 3 separate steps in Virginia. First, there is a First Step grievance conducted by the employee’s immediate supervisor. If the matter is unresolved, it may proceed to a Second Resolution Step Meeting. As opposed to the First Step, a meeting is required during the Second Step. The Second Step is usually considered a fact finding session. If the Second Step does not resolve the grievance, the employee may then take their grievance to the Third Step. If the Third Step does not resolve the grievance and an employee wishes to take their grievance forward, he or she must then ask that their grievance certified for a hearing by the agency head.
In some cases, where a grievance involves a demotion, suspension without pay or any other action that results in an actual loss of wages, the employee may be able to elect the Expedited Process for grievance review. This Expedited Process generally starts at the Second Step procedures and is reduced to a single step. Dismissals due to formal discipline or unsatisfactory job performance usually will not go through the grievance steps, but rather proceed to the Grievance Hearing Process.
The Grievance Hearing Process
Grievances not resolved in the grievance process may or may not next move to the Grievance Hearing Process. Please note that not all grievances are eligible for a grievance hearing. Cases involving formal disciplinary (a written notice) actions and dismissals for unsatisfactory performance usually qualify for the hearing stage. Other types of grievances involving adverse employment actions may also qualify for a hearing. These can include: (1) unfair application of state/agency policies; (2) discrimination; (3) arbitrary or capricious performance evaluation; (4) retaliation for participation in the grievance process; and (5) other types of informal discipline (i.e. transfers, assignments, demotions and suspensions that are not accompanied by a formal notice by taken for disciplinary reasons). If a grievance is deemed by an agency head not
to be eligible for a hearing, the employee may appeal that decision to EDR.
The Grievance Hearing Process consists of the appointment of a Hearing Officer, a pre-hearing conference and the formal hearing, in addition to other procedures. During the hearing, documents will be introduced as exhibits and witnesses will be examined and cross-examined. If the grievance involves a disciplinary matter, then a state agency must prove their case by a preponderance (51%) of the evidence presented. Following the hearing, the Hearing Officer will provide a decision in writing. The Hearing Officer may uphold or deny the grievance.
If the Hearing Officer rules against a party, that party can then appeal the adverse decision to the EDR or to the Virginia Department of Human Resources Management (DHRM), depending on the issue to be appealed before it is considered final. Once the hearing decision becomes final, a party can then appeal an adverse determination to Circuit Court and from there to the Court of Appeals. A petition can also be filed requiring implementation of the final hearing decision.
When a Virginia state employee files an employment grievance, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in in their state employment grievances. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.