1086.0.0
DHS MEDIATION/GRIEVANCE
POLICY (Gov's Proclamations EO 86-1, 7-16-85 & EO93-01, 7-1-93 )
1086.0.1 This policy establishes
procedures for resolving workplace disputes and disciplinary issues.
1086.0.2 Nothing in these rules and
regulations shall abrogate the employment-at-will relationship between DHS and
its employees. Any departmental error that does not prejudice the substantial
rights of an affected party and in no way affects the final outcome of the case
will be deemed harmless error and shall not be grounds for overturning the
Department decision.
1086.1.0
Eligible Employees
Any full-time regular salaried employee who occupies a regular
salaried position and works a minimum of 1,000 hours per year may file a
grievance under this policy, except those listed in Section 1086.2.0,
Non-eligible Employees. Employees who present a grievance or complaint in good
faith and a reasonable manner shall be free from retaliation or
reprisal.
1086.2.0
Non-eligible Employees
1086.2.1 DHS Director, Deputy Directors,
Division/Office Directors, all unclassified positions (Grades 66 and 99),
Managers and Program Directors (Grades 22-26), County Administrators, and
employees who are appointed by the Constitutional Board (including
Superintendents and Institutional Directors), are not eligible to file a
grievance under this policy unless these exempt employees are applying for a
classified position covered by the scope of this policy, to the extent that the
grievance involves the application for the classified position.
1086.2.2 Part-time, temporary, emergency
hire, extra help and employees serving in their initial (new-hire to the
Department) probationary status are not eligible to file a grievance under this
policy.
1086.3.0
Americans
with Disabilities Act
Any employee regardless of his or her status may utilize this
policy to address concerns related to the Americans with Disabilities Act of
1990. However, the State Employee Grievance Review Committee (SGRC) and the
State Employee Grievance Appeal Panel (SEGAP) will not hear appeals from
employees who are otherwise excluded from coverage.
1086.4.0
Filing a
Mediation/Grievance
To seek a resolution to a workplace dispute or disciplinary
issue the employee must submit the matter in writing to the grievance officer
within five (5) working days of the date of the occurrence of the grievable
action. The concern must be filed on a DHS-2801, Mediation/Grievance form. The
form must be filled in completely and must describe the reasons the employee
disagrees with the action taken and what the employee is seeking as a
resolution to the dispute. Employees may contact the grievance officers for
technical assistance in completing the form.
1086.5.0
Policy
Components
1086.5.1
DHS Mediation is an internal non-adversarial
negotiation between the employee presenting a grievance and his or her
supervisor, using a neutral third-party mediator. (This process is sponsored by
DHS.)
1086.5.2
DFA
Mediation is an external non-adversarial negotiation between the
employee presenting a grievance and his or her supervisor, using a neutral
third-party mediator. (The Department of Finance and Administration (DFA),
Office of Personnel Management (OPM), sponsors this process.)
1086.5.3
Grievance
Procedure is a more formal process that allows the employee to
request that successively higher levels of management review his or her
grievance if the employee is not satisfied with the results of the
procedure.
1086.6.0
DHS
MEDIATION
1086.6.1 In order
to reduce the number of formal grievances filed, internal mediation will be
utilized as a first step attempt to resolve complaints.
1086.6.2 Within five (5) working days after
the DHS Employee Relations Office (ERO) receives a grievance, a grievance
officer will contact the mediator, the employee and the appropriate level of
management to schedule a mediation session to be held within 10 working days
after the initial receipt of the grievance. The mediation session will be
scheduled at a time and location convenient for all parties and will not be
recorded.
1086.6.3 If the process
is successful, the mediator will formalize the terms of the agreement in
writing, and all parties will sign and date the agreement, which will be filed
with the grievance officer within five (5) working days of the conclusion of
the mediation session.
1086.6.4 If
the mediation session is unsuccessful, the mediator will prepare a "non
settlement form," that must be signed and dated by all parties, and a copy
given to each participant at the conclusion of the mediation session. At this
point, the employee may file a DHS 2802 Grievance Response form, to continue
the process for any unresolved grievable issue. The completed DHS 2802 must be
filed with ERO within five (5) working days following the conclusion of the
mediation session.
1086.6.5 The
mediation process may be concluded at any point by the employee, the supervisor
or the mediator if the mediation sessions are not productive.
1086.7.0
Mediation Only Issues
Matters other than disciplinary action that otherwise are not
grievable, disputes involving employees serving an initial new-hire to the
department probationary status, and supervisory directed mediation may be
addressed through the mediation procedure only.
1086.8.0
DFA
MEDIATION
1086.8.1 Employees
who have unresolved grievable issues following DHS Mediation may choose to
continue their grievance by utilizing either the DFA Mediation or the Grievance
Procedure.
1086.8.2 If the employee
chooses DFA mediation the grievance officer will provide an Agreement to
Mediate form that must be signed by the employee and the supervisor/management
designee. The grievance officer will submit the grievance statement and the
signed Agreement to Mediate form to DFA/OPM. OPM will contact all parties to
schedule the mediation.
1086.9.0
GRIEVANCE PROCEDURE
1086.9.1
Grievable
Matters:
A. A grievable matter is
an adverse action against any employee or former employee (in case of
termination). Adverse action means termination, suspension, promotion,
reduction of annual leave, sick leave, compensatory time, or other disciplinary
actions or unlawful discrimination.
B. Annual or probationary performance
evaluations may be the subject of a grievance under this policy only in cases
arising from allegations of unlawful discrimination or in cases of disciplinary
action, such as probation, suspension, or termination. In such cases, a
mediation/grievance may only be filed within five (5) working days after an
employee receives the division director's decision as a result of an appeal
under DHS Policy 1093, Career Ladder Incentive Program (CLIP), Appendix 5,
Personnel Performance Evaluation System.
NOTE: Non-selection for promotion, lateral
transfer or a lower grade position (demotion) may be heard through the DHS
Mediation process and may not be appealed to the State Grievance Review
Committee or the State Employee Grievance Appeal Panel unless discrimination is
the basis of the complaint.
1086.9.2
Non-Grievable Matters include, but are not limited to:
A. Advice given by grievance officers or by
the Office of Chief Counsel.
B.
Approved DHS/Board policies, procedures, or guidelines.
C. Matters governed by law, regulation or
executive orders that are outside the Department's control.
D. Non-disciplinary Counseling Statements,
Form DHS-1131, that are used to document a discussion between a supervisor and
an employee. The statements can apply to employee job performance, conduct or
both.
E. Reduction-in-force (RIF),
unless an employee alleges that the RIF plan was not followed or results in
unlawful discrimination. (RIF appeals will be processed through a separate
appeals procedure.)
F. Work
reassignments, including days off and shifts when there is not
misclassification of job duties and the grade remains the same, or work
reassignment to different off days and shifts than agreed upon by the employee
at the time of hire.
G.
Reassignment or suspension with pay pending investigation outcome.
H. Complaints against co-workers.
I. Complaints that request a remedy to have a
supervisor or other employee disciplined.
J. Compensation.
K. Conditions beyond the control of
Department management or mandated by law.
1086.9.3 Determination of Grievable Matters
A. After the employee submits a grievance,
the grievance officer will decide if the complaint is grievable and notify the
grievant in writing if a grievable issue does not exist. The grievant may
appeal this decision in writing to the SGRC by seeking an advisory
ruling.
B. The grievance officer
will request a determination from the SGRC by filing a brief statement using
the Request For Grievable Matter Determination form about the cause of the
complaint with the Administrator of the Office of Personnel Management (OPM).
The employee may file a written statement through the grievance officer for
submission to the Committee at the time of the request for determination of
grievability.
C. The grievance
officer will send a copy of the request to all parties.
D. The Administrator of OPM will report the
Committee's decision to the grievance officer and the employee. The
determination should be limited to whether or not the matter is grievable. The
Committee will not make any findings at this stage about the merits of the
complaint.
E. When a matter is
determined to be grievable, either by the grievance officer or by the SGRC, the
grievance officer will notify all parties within one (1) day of receipt of the
determination.
1086.10.0
Fact-Finding Conference
1086.10.1 The grievance officer will contact
the director of the grievant's division to schedule a fact-finding conference
within 20 working days. The division director/designee will conduct the
conference. All charged parties and witnesses are required to attend. If the
division director personally participated in the actions grieved or otherwise
has a conflict of interest, the DHS Director will select an impartial
individual with appropriate knowledge of divisional policies and concerns to
conduct the fact-finding conference. The deciding official will issue a written
decision to ERO on the DHS-2803, Grievance Decision form, within five (5)
working days.
1086.10.2 Conduct of
the Fact-Finding Conference:
A. The deciding
official will conduct the conference in an informal manner. The deciding
official will receive exhibits and take testimony, ruling on the admissibility
of both.
B. The rules of evidence
or civil or criminal procedure will not apply.
C. The deciding official will determine where
the conference will be held and will preside at the conference. The grievance
officer will notify all people involved of the date, time, and
location.
D. All conferences will
be tape recorded and available for transcription. The grievance officer must
insure that this requirement is met.
1086.11.0
Grievance
Representation
The grievant may have a fully participating representative at
each formal processing step. The Department and the grievant must inform the
grievance officer of a representative a minimum of three (3) working days
before the scheduled conference. The name, title, and address of the
representative must be given. The grievance officer will notify the opposing
side. Failure to provide adequate notice may cause the conference to be
rescheduled unless the agency agrees to go forward without a representative.
Any cost in obtaining representation will be entirely the responsibility of the
person hiring the representative.
1086.12.0
Grievance
Witnesses
1086.12.1 The
grievant and the Department will provide the grievance officer with a list of
potential witnesses at each step. The list will include a brief statement of
why each witness is being asked to attend. Notice of time, date and location of
the grievance conference will be given to all DHS employees who are called as
witnesses. The calling party will notify non-DHS employees.
1086.12.2 The deciding official will
determine the relevance of all information to be heard at all internal
proceedings. The deciding official will have the discretion to exclude
testimony or evidence if such testimony or evidence is not relevant,
privileged, or cumulative.
1086.12.3 All witnesses will be called for
questioning by the deciding official. If requested by either party or their
representatives, witnesses will be required to wait outside the conference room
until they are needed. Either side or the deciding official in the initial
hearing may question witnesses.
1086.12.4 Grievance officers or DHS attorneys
may not be called as witnesses unless they are charged parties or have direct
unprivileged knowledge of the acts or omissions which gave rise to the
grievance. The DHS Director may compel them to testify to the extent this rule
will not be violated.
1086.13.0
Statements
1086.13.1
Either side may make opening statements of no more than 10 minutes. Each side
should outline the facts to be presented and indicate what the facts may
prove.
1086.13.2 After opening
statements, each side will present its case. In all cases involving
disciplinary action, the Department will be heard first, followed by the
grievant's preparation. However, in cases not involving disciplinary action, or
in cases where unlawful discrimination is alleged, the grievant will proceed
first, followed by the Department's presentation.
1086.13.3 Upon completion of both sides'
presentations, closing statements will be allowed. They must be limited to five
minutes for each side.
1086.14.0
Notification of Decision
A copy of the grievance decision will be sent to the parties
and their representatives within 10 working days of the conclusion of the
fact-finding conference. The copy supplied to the grievant will have the
DHS-2802, Grievance Response form, attached. The grievance officer may take any
of the following steps to preserve evidence that the grievant was notified of
the decision:
(1) mailing the
decision by certified mail, return receipt requested;
(2) obtaining the employee's signature on the
DHS-2803 form; or
(3) obtaining a
receipt from the employee.
1086.15.0
Appeal of
Decision
1086.15.1 The
grievant may appeal unfavorable decisions by filing the DHS-2802 form within
five (5) working days of the receipt of the decision. The grievance officer
will notify the DHS Director's office of the appeal and will provide the DHS
Director's office a complete copy of the record of the case including a
transcript of all testimony below. The DHS Director/designee will then decide
the matter based on the record. The DHS Director/designee will issue a written
decision within 15 working days of receipt of the record.
1086.15.2 If the grievant is not satisfied
with the decision of the DHS Director/designee, the grievant may appeal the
decision to the SEGAP or the SGRC, as appropriate. The appeal must be filed
with the grievance officer within five (5) working days of receipt of the
decision. The appeal must be filed using DHS-2802 form. The grievance officer
will notify SGRC or SEGAP of the appeal within one (1) working day. The
grievance officer will coordinate the selection of a hearing date with the
Panel or Committee.
1086.15.3 SGRC
or SEGAP will conduct further proceedings in accordance with the rules of those
bodies. Copies of the Panel and Committee rules may be obtained from the
grievance officer.
1086.16.0
SGRC Procedure
If the review body is the SGRC, the DHS Director will review
the Committee's recommendations and, within ten (10) days of receipt of the
written SGRC recommendation, will submit his decision in writing to all
parties, representatives, and supervisors involved. The decision of the
Director will be final and binding on all parties regarding the matter and the
procedure. The SGRC will receive a copy of the decision.
1086.17.0
SEGAP
Procedure
1086.17.1 If the
review body is the SEGAP, the DHS Director will review the Panel's decision and
implement the decision. If the DHS Director does not agree with the Panel's
decision, the Director may, within 10 working days of receipt of the Panel's
written decision, provide the Chief Fiscal Officer of the State and the
aggrieved employee with written justification of the Department's action and
request a formal review of the Panel's decision by the Chief Fiscal Officer.
The employee may also submit comments regarding the DHS Director's
justification to the Chief Fiscal Officer. Such response to the Department's
appeal will be submitted to the Chief Fiscal Officer within 10 calendar days of
the date of the Department's appeal. (Appeals to the Chief Fiscal Officer
should be processed by the grievance officer or authorized representative). The
Chief Fiscal Officer will issue a final administrative order within 15 working
days of receipt of the DHS Director's justification and written request for
review, affirming, reversing, or modifying the SEGAP's decision, and the final
administrative order shall be binding on the Department.
1086.17.2 Employees are not prohibited from
availing themselves of remedies outside these procedures. Each employee retains
the right to file a complaint with the Equal Employment Opportunity Commission
or to pursue other legal remedies.
1086.18.0
Intervention
The DHS Director or division director may intervene during the
pendancy of a grievance within DHS or within 20 days of the conclusion of the
mediation process. Intervention may include conducting special investigations,
suspending time frame requirements, and making a decision. The DHS Director
will make every effort to resolve all matters involving allegations of unlawful
discrimination, termination, suspension without pay, involuntary demotion, or
failure to award compensation.
1086.19.0
Confidentiality
All persons involved in the grievance process shall be subject
to the confidentiality requirements for both programmatic documents as well as
personnel files. Information concerning a grievance shall be open for
inspection when such is provided in the Arkansas Freedom of Information Act.
Violations of confidentiality requirements are subject to discipline under DHS
Policy 1085 - Minimum Conduct Standards for DHS Employees and DHS Policy 1053 -
Freedom of Information Act/Charges for Copying Documents. SGRC and SEGAP are
not bound by this policy as it relates to the confidentiality of
records.
1086.20.0
Records
1086.20.1 The
grievant, the charged party, and the SGRC or SEGAP may view or have a copy of
the grievance file. One copy of a written transcript will be made available to
authorized persons. Tape duplication will be made available without cost to
blind or visually impaired persons.
1086.20.2 The division director/designee will
make all final determinations on the release or the viewing of documents
related to pending grievances on a case-by-case determination and based upon
the Arkansas Freedom of Information Act.
1086.20.3 The grievance officer will retain
all records related to grievances.
1086.20.4 Records will be kept as required by
DHS 1083, Document & Record Disposition Policy.
1086.20.5 Documents sent to the grievance
office after a case file has been submitted to the Panel or Committee will be
returned to the sender. The sender may attempt to have the additional documents
entered into the record at the Committee or Panel conference or hearing. The
Committee or Panel Chair will decide the relevancy of the material and may
accept the additional information after the opposing side has the opportunity
to review the material and make any objections. The sender should bring seven
(7) copies of any documentation to be introduced to the SGRC hearing or five
(5) copies to the SEGAP hearing.
1086.21.0
Employee's
Role
1086.21.1 Employees
will:
A. Be given time during work hours to
meet with a grievance officer or mediator when the grievance officer or
mediator schedules the meeting. Excused time off should be given to start the
process or to participate in scheduled meetings or conferences. Any other time
off relating to the grievance will be subject to approved annual
leave.
B. Be paid for travel
expenses, including parking fees, when they attend scheduled fact-finding
conferences or meetings with decision makers.
C. Have access to relevant records and
documents, subject to the confidentiality requirements as set out by state or
federal law.
D. Not use DHS
resources for filing grievances, to respond to a grievance decision or to
prepare requests for or respond to a request for documents, unless the forms or
documents are those required by this policy. The use of other DHS resources for
these purposes is a violation of DHS Policy 1085 - Minimum Conduct Standards
for DHS Employees.
1086.21.2 Employees may:
A. Seek technical assistance from the
grievance officer by phone.
B. Have
witnesses present and question them at scheduled conferences.
C. Choose a representative.
D. Request interpreters, readers, or other
types of assistance that may be reasonable and necessary.
E. File the DHS-2801, Mediation/Grievance
Statement, via fax, @ 501-682-6896, however if a fax machine is used the
employee must call 501-682-6003 to assure that the form has been received
within the time frame as stated in the instructions on the form."
1086.2 2.0
Management's
Role
The DHS Director/designee may:
A. Gather all of the facts and attempt to
resolve grievances in good faith.
B. Assure that employees and former employees
can use this procedure without interference, restraint, coercion, or
reprisal.
C. Communicate this
policy and procedure to each employee.
1086.22.1 The DHS Director reserves the right
to delegate any or all of these rights to designated officials subject to the
provisions of policy and consistent with applicable state and federal laws or
regulations.
1086.23.0
Grievance Officer's Role
The duties and responsibilities of grievance officers
include:
A. Providing technical
assistance.
B. Maintaining complete
records of all grievances, complaints, and appeals.
C. Determining grievability.
1086.24.0
Combining
Grievances
When more than one grievance is filed about the same issue by
two or more persons or if more than one grievance is filed by a single person,
the deciding official or grievance officer may combine the grievances into
one.
1086.25.0
Time
Frames
1086.25.1 The
employee must file the grievance within five (5) working days from the date the
employee learned of the grievable action.
1086.25.2 The employee (grievant) presenting
the grievance may conclude the Grievance Procedure at any time in the
process.
1086.26.0
Corrective Action
1086.26.1
When a matter is decided in favor of the grievant, the deciding official or
grievance officer must ensure corrective action is taken in a timely manner. If
documentation is to be removed or replaced, all DHS files must reflect this
action.
1086.26.2 The person
responsible for taking action to resolve a grievance that is overturned will
prepare a confidential memorandum to the Office of Finance and Administration
(OFA), Personnel Section, requesting that the documentation be removed and, if
appropriate, be replaced with specified actions. The division director must
approve the memorandum before it is sent to OFA. The memorandum must include
specific instructions to all offices that maintain copies of such documentation
to remove the documentation and send the original copies to the grievance
office, which will retain the documents
1086.26.3 Failure to ensure that all elements
of the decision are implemented or initiated within 10 working days of
receiving the decision may result in disciplinary action
1086.27.0
Originating
Section/Department Contact
Office of Finance and Administration Human Resources/Support
Services Section Policy and Administrative Program Management P.O. Box
1437/Slot Number W403 Little Rock, AR 72203-1437 Telephone: 682-5835
Replacement Notation: This policy replaces DHS 1086 dated
November 30, 2002 and
Management Directive-1, Grievance Prevention and Resolution,
dated March 1, 2002.