Section .0100 ‑ Employee Relations Section

Link to law: http://reports.oah.state.nc.us/ncac/title 25 - state human resources/chapter 01 - office of state human resources/subchapter j/subchapter j rules.html
Published: 2015

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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Repealed Eff.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Repealed Eff.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Repealed Eff.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 or her receipt of

written notice of such action to file an appeal with his department/university

grievance procedure. If an employee does not appeal his or her dismissal

through the agency grievance procedure within 15 days, then the employee shall

have no right to file a contested case with the Office of Administrative

Hearings under G.S. 126-34.02.

(b)  If an employee appeals his or her 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.

(c)  Grievances that allege discrimination, harassment, or

retaliation shall follow the agency grievance process.  Employees with

grievances alleging discrimination, harassment, or retaliation who do not

follow the agency grievance process shall have no right to file a contested

case with the Office of Administrative Hearings.

 

History Note:        Authority G.S. 126-1A; 126-34.01;

126-34.02; 126-35; 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;

Temporary Amendment Eff. May 23, 2014;

Amended Eff. April 1, 2015.

 

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 Human Resources 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 or 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 shall

receive. The supervisor may elect to issue a written warning for grossly

inefficient job performance or unacceptable personal conduct.  The written

warning shall:

(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, shall be made to address these specific issues;

(4)           tell the employee the time frame allowed

for making the required improvements or corrections. Absent a specified time

frame, 60 days is the time frame allowed for correcting unsatisfactory job

performance and immediate correction is required for grossly inefficient job

performance or unacceptable personal conduct; and

(5)           tell the employee the consequences of

failing to make the required improvements or corrections;

(b)  A written warning shall be issued in accordance with

the procedural requirements of this Section.

 

History Note:        Authority G.S. 126-4; 126-34.02;

Eff. February 1, 1976;

Amended Eff. October 1, 1995; November 1, 1990; January

1, 1989; September 1, 1988;

Temporary Amendment Eff. May 23, 2014;

Amended Eff. April 1, 2015.

 

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           INVESTIGATORY LEAVE

(a)  Investigatory leave with pay shall be used to

temporarily remove an employee from work status. Placement on investigatory

leave with pay shall not constitute a disciplinary action as defined in this

Section, G.S. 126-34.02,or in G.S. 126-35. Management shall notify an employee

in writing of the reasons for placement on investigatory leave not later than

the second scheduled work day after the beginning of the placement.

Investigatory leave with pay may last no longer than 30 calendar days without

written approval of extension by the agency head and the State Human Resources

Director. The State Human Resources Director shall approve an extension of the

period of investigatory leave 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, the investigation is not complete, and the agency is

unable to complete its own independent investigation without facts contained in

the law enforcement investigation, and the agency is unable to conduct its own

investigation;

(2)           a management individual who is necessary

for resolution of the matter is unavailable; or

(3)           a person or persons whose information is

necessary for resolution of the matter is/are unavailable.

(b)  When an extension beyond the 30-day period is required,

the agency shall 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 made during the investigation or return the employee to

active work status.  An agency shall not 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)  An agency may place an employee on investigatory leave

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;

(3)           to avoid disruption of the work place and

to protect the safety of persons or property; or

(4)           to facilitate a management directed

referral or fitness for duty/risk evaluation to ensure the employee's safety

and the safety of others and to obtain medical information regarding the

employee's fitness to perform his or her essential job functions.

 

History Note:        Authority G.S. 126-4; 126-25; 126-34.02; 126-35;



Eff. October 1, 1995;

Amended Eff. April 1, 2015; January 1, 2011; April 1, 2005.

25 NCAC 01J .0616           CREDENTIALS

(a)  Classifications or positions required to be licensed,

registered, or certified in accordance with North Carolina General Statutes

shall be specified in the statement of essential qualifications or recruitment

standards for classifications approved by the State Human Resources

Commission.  Employees in such classifications or positions shall obtain and

maintain current, valid credentials.

(b)  Failure to obtain or maintain the 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. 

(c)  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 shall be dismissed in accordance

with Rule .0608 of this Section.

(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.

(d)  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.

 

History Note:        Authority G.S. 126-4; 126-35;

Eff. April 1, 2015.

 

25 NCAC 01J .0617           DISCRIMINATION AND RETALIATION

Neither race, religion, color, national origin, sex, age,

political affiliation, disability, or genetic information shall be considered in

making any decisions about any term or condition of employment for any

employees or applicants.  Nor shall the fact that an employee or applicant has

complained about discrimination or participated in a hearing, proceeding, or

investigation of discrimination be considered when making any decisions about

any term or condition of employment.

 

History Note:        Authority G.S. 126-16; 126-17; 126-13.02;

Temporary Adoption Eff. February 28, 2014;

Temporary Adoption Expired December 12, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .0618           APPEAL OF DENIAL OF VETERAN'S

PREFERENCE

 

History Note:        Authority S.L. 2013-382, s. 6.1;

Temporary Adoption Eff. February 28, 2014;

Temporary Adoption Expired December 12, 2014.

 

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 Human

Resources no later than January 2, 1990 for review and provisional approval. The

Office of State Human Resources shall transmit each procedure which has been

provisionally approved to the State Human Resources 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           UNLAWFUL WORKPLACE HARASSMENT AND

RETALIATION

(a)  Purpose.  The purpose of this Rule is to establish that

the State of North Carolina prohibits in any form unlawful workplace

harassment, including sexual harassment or retaliation based on opposition to

unlawful workplace harassment of state employees or applicants.  Every agency

with employees subject to the State Human Resources Act shall develop

strategies to ensure that work sites are free of unlawful workplace harassment,

sexual harassment discrimination and retaliation.

(b)  As used in this Rule:

(1)           "unlawful workplace harassment"

means unsolicited and unwelcome speech or conduct based upon race, religion,

color, national origin, sex, age, disability, genetic information, or political

affiliation that creates a hostile work environment or under circumstances

involving quid pro quo."

(2)           "sexual harassment" means 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; and

(C)          the conduct has the purpose or

effect of unreasonably interfering with an individual's work performance or

creating an intimidating, hostile, or offensive working environment.

(3)           "retaliation" means adverse

action taken against an individual for filing a discrimination charge;

testifying; or participating in any way in an investigation, proceeding, or

lawsuit related to discriminatory employment practices based on race, religion,

color, national origin, sex, age, disability, political affiliation or genetic

information; or because of opposition to employment practices in violation of

the unlawful workplace harassment policy.

(c)  Policy.  No state employee shall engage in conduct that

falls under the definition of unlawful workplace harassment, sexual harassment

or retaliation, and no personnel employment decisions shall be made on the

basis of race, sex, religion, national origin, age, color, disability,

political affiliation, or genetic information.

(d)  All employees are guaranteed the right to work in an

environment free from unlawful workplace harassment and retaliation.

(e)  Coverage of this Rule includes: 

(1)           applicants,

(2)           former employees, and

(3)           full-time and part-time employees with

either a permanent, probationary, trainee,  time-limited, or temporary

appointment.

(f)  Agency Workplace Harassment Prevention Strategies. 

Each agency head shall develop strategies to prevent unlawful workplace

harassment, sexual harassment, or retaliation. These strategies shall include:

(1)           a

commitment by the agency to the prohibition of unlawful workplace harassment,

sexual harassment or retaliation;

(2)           training

and other methods to prevent harassing or retaliating actions; and

(3)           a

process for disseminating information prohibiting unlawful workplace harassment

and retaliation to all agency employees.

Workplace harassment prevention strategies shall be included

as part of the agency Equal Employment Opportunity (EEO) plan.

 

History Note:        Authority G.S. 126-4; 126-16; 126-17; 126-34.01;

126-34.02; 126-36;

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;

Amended Eff. June 1, 2012;

Temporary Amendment Eff. May 23, 2014;

Amended Eff. April 1, 2015.

 

section .1200 – EMPLOYEE GRIEVANCES

 

25 NCAC 01J .1201           GENERAL PROVISIONS

25 NCAC 01J .1202           AGENCY RESPONSIBILITIES

25 NCAC 01J .1203           AGENCY GRIEVANCE REPORTS

25 NCAC 01J .1204           DISCRIMINATION AND RETALIATION /

SPECIAL PROVISIONS

25 NCAC 01J .1205           UNLAWFUL WORKPLACE HARASSMENT

25 NCAC 01J .1206           Time Limits

25 NCAC 01J .1207           FINAL AGENCY ACTION

25 NCAC 01J .1208           LEAVE IN CONNECTION WITH GRIEVANCES

 

History Note:        Authority G.S. 126-1.1; 126-4(9);

126-4(11); 126-4(17); 126-7.2; 126-16; 126-17; 126-25; 126-34.01; 126-34.02; 126-35;

150B-23(a);

Eff. March 1, 2005;

Temporary Repeal Eff. May 23, 2014;

Repealed Eff. April 1, 2015.

 

section .1300 - EMPLOYEE APPEALS AND GRIEVANCE PROCESS

 

25 NCAC 01j .1301           MINIMUM PROCEDURAL REQUIREMENTS

 

History Note:        Authority G.S. 126‑4(9); 126‑4(10);

126-4(17); 126-7.2; 126-16; 126-34.01; 126-34.02; 126‑35; 150B‑23;

Eff. March 1, 2005;

Temporary Repeal Eff. May 23, 2014;

Repealed Eff. April 1, 2015.

 

25 NCAC 01J .1302           GENERAL AGENCY GRIEVANCE PROCEDURE

REQUIREMENTS

(a)  All agencies and universities shall adopt the Employee

Grievance Policy, which shall be approved by the State Human Resources

Commission, based on the standards in Paragraph (d) of this Rule.

(b)  Grievances filed that are not in accordance with Subparagraph

(d)(5) of this Rule shall be dismissed. 

(c)  A grievant who has an unexcused failure to attend the

Step 1 - Mediation or Step 2 - Hearing as scheduled forfeits the right to

proceed with the grievance process. 

(d)  An agency or university grievance process shall include

the following:

(1)           a list of who may file a grievance;

(2)           a list of grounds for filing a grievance

under the internal grievance process;

(3)           a list of grounds for which contested cases

may be brought to the Office of Administrative Hearings after the conclusion of

the grievance process in accordance with G.S. 126-34.02;

(4)           an informal process for attempting to

resolve a grievable issue prior to the employee's filing a formal grievance;

(5)           a 30 day timeframe in which grievable issues

must be raised in both the informal and formal grievance process, except for

grievances covered by Rule .0603 of this Subchapter;

(6)           a 90 day timeframe in which the agency or

university must complete the entire informal process and the process shall

describe each step of the formal grievance process; 

(7)           mediation shall serve as Step 1 of the

formal grievance process. A description of the mediation process and timeframe

to be followed in Step 1 shall state that a mediation agreement is legally binding

and that if impasse occurs, the agency shall inform the grievant of the Step 2

grievance process and timeframe for filing;

(8)           a Hearing shall serve as Step 2 of the

formal grievance process. A description of the hearing process and timeframe to

be followed in Step 2 shall be provided, including that a grievant has the

opportunity to present the grievance orally to a reviewer(s) outside the

grievant's chain of command, meaning a hearing officer or hearing panel. The

hearing officer or hearing panel chair shall draft a proposed recommendation

with findings of fact for a final agency decision;

(9)           the process and timeframe for the proposed

recommendation to be submitted to the Office of State Human Resources for

review and approval;

(10)         the process and timeframe for issuance of a

Final Agency Decision shall not exceed 90 calendar days of the initial filing

of the grievance in the formal grievance process;

(11)         information about any applicable appeal

rights to the Office of Administrative Hearings shall be included in the Final

Agency Decision;

(12)         the responsibilities of all parties involved

in the grievance process to include: grievant, respondent, hearing officer,

hearing panel and chair, agency and university Human Resource Office, Equal

Employment Officer, Affirmative Action Officer, Agency Head and designee, and

the Director of the Office of State Human Resources and designees; and

(13)         the manner in which changes in the grievance

policies shall be communicated to employees.

 

History Note:        Authority G.S. 126-34.01; 126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1303           agency and university grievance

reports and data entry

(a)  Every agency and university shall, as requested by the

Office of State Human Resources, compile information on employee grievances.

(b)  The Office of State Human Resources shall make reports

to the State Human Resources Commission as necessary based upon the information

supplied in agency reports.

(c)  Every agency and university shall maintain all

grievance data and enter grievance data by the last business day of the month

in the State's HR and Payroll system or other applicable human resources

information system.

 

History Note:        Authority:  G.S. 126-4(6),(9);

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 ncac 01j .1304           SETTLEMENTS/CONSENT AGREEMENTS IN

GRIEVANCES, CONTESTED CASES

(a)  Any mediation agreement, settlement agreement, or

consent agreement in a grievance or contested case that requires the entering of

data into human resources and payroll information system used by agencies with

employees subject to G.S. 126, shall be approved by the Office of State Human

Resources for compliance with all rules contained in Subchapters 1C (Personnel

Administration), 1D (Compensation), 1E (Employee Benefits), 1H (Recruitment and

Selection), and 1J (Employee Relations) in Title 25 of the North Carolina

Administrative Code before the agency enters the data. 

(b)  Data shall be entered into the human resources and

payroll information system by an agency when it determines that an action shall

be taken that affects classification, salary, leave, demotion, reassignment,

transfer, or for any other human resources action, except where the only

personnel action taken as a result of the settlement is the substitution of a

resignation for a dismissal. 

(c)  Approval by the Office of State Human Resources shall

be indicated by the signature of the State Human Resources Director or his or

her designee in an appropriate place on the settlement or consent agreement to

the Office of State Human Resources Director.  This provision shall not be

construed to require Office of State Human Resources' approval of a settlement

in which the only portion requiring approval is the awarding of attorney's fees

to the employee's attorney by the Office of Administrative Hearings. 

(d)  This provision shall also not be construed to require

approval of any settlement the terms of which allow an employee to substitute a

resignation for a dismissal and to withdraw a grievance or a contested case

action.

(e)  The provisions of 25 NCAC 01A .0104 (EXCEPTIONS AND

VARIANCES) shall be complied with when any provision of a settlement or consent

agreement in a grievance or contested case requires an exception to or variance

from the rules in this Chapter contained in Subchapters 1C (Personnel

Administration), 1D (Compensation), 1E (Employee Benefits), 1H (Recruitment and

Selection), and 1J (Employee Relations). This compliance shall be in addition

to the requirements of this Rule.  Any settlement or consent agreement that

contains a provision that requires an exception to or variance from existing

human resources policy shall be reviewed and approved by the Office of State

Human Resources Director prior to the processing of any human resources action

forms by the Office of State Human Resources or the university human resources

and payroll system.

(f)  Requests to enter data into the State's human resources

and payroll system that are required by the provisions of any settlement or

consent agreement that has not been approved by the Office of State Human

Resources as required by this Rule shall not be processed by the human

resources and payroll information system used by agencies with employees

subject to G.S. 126, and shall be returned to the agency without action.

(g)  No agency shall agree to any mediation agreement,

settlement agreement, or consent agreement entered under G.S. 126 that does not

comply with the rules in this Subchapter.  However, no rules in this Subchapter

shall constrain the authority of any agency to request an exception from these

rules; nor shall any provision of these rules restrict the discretion and

authority of any decision maker applying these Rules to apply the rules

consistent with the decision maker's discretion and authority.

 

History Note:        Authority. 126-4; 126-34.01;

Temporary Adoption Eff. May 23, 2014;

Eff. May 1, 2015.

 

25 NCAC 01J .1305           OFFICE OF STATE HUMAN RESOURCES

REVIEW AND APPROVAL OF FINAL AGENCY DECISION (FAD)

The Director of the Office of State Human Resources or his

or her designee:

(1)           shall review every agency or university

final agency decision (FAD);

(2)           shall establish criteria and standards for

the content of a FAD; and

(3)           may approve as written or make

recommendations for modifications or reversal to the agency.

 

History Note:        Authority G.S. 126‑34.01;

126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 ncac 01j .1306           BACK PAY

In grievances filed on or after August 21, 2013:

(1)           Back pay may be awarded in all cases in

which back pay is warranted by law.

(2)           Full or partial back pay shall not be

dependent upon whether reinstatement is ordered.

(3)           Gross back pay shall always be reduced by

any interim earnings, except that interim earnings from employment that was

approved secondary employment prior to dismissal shall not be set off against

gross back pay.  Any unemployment insurance benefits paid to the employee shall

also be deducted from the gross back pay amount due if unemployment insurance

benefits were not taxed when received by the employee.

(4)           All applicable state and federal

withholding taxes, including social security taxes, shall be paid from the

reduced gross back pay due.  "Reduced gross back pay" is gross back

pay due minus interim earnings and unemployment insurance benefits received.

(5)           The employee's regular retirement

contribution shall be paid on the total, unreduced amount of gross back pay

due.

(6)           Back pay shall include payment for all

holidays that the grievant would have been paid for except for the interruption

in employment status.  Holiday premium pay shall not be a part of any back pay

award.

(7)           Shift pay shall be a part of a back pay

award if the grievant would have been entitled to the pay in the absence of the

interruption in employment.  This benefit shall not be applicable in cases

involving a failure to hire or a failure to promote.

(8)           Employees shall not be entitled to any

discretionary pay that may or may not have been awarded to them in the absence

of the interruption in employment, including merit increments.

(9)           Back pay shall include any across the board

compensation that would have been included in the grievant's regular salary

except for the interruption in employment.  This includes one time

"bonuses," and across the board legislative pay increases.

(10)         If the grievant's longevity eligibility date

occurred during the period of interrupted employment, back pay shall include

the difference between the prorated longevity payment made at dismissal and the

amount of longevity pay that would have been payable had employment not been

interrupted.  If the grievant is reinstated prior to his or her longevity date,

no adjustment for longevity pay shall be made in the back pay award.  The

prorated longevity payment made at the time of dismissal shall be deducted from

the full amount otherwise payable on the next longevity eligibility date.

(11)         Back pay shall be applied for on the

appropriate Office of State Human Resources form, available on the Office of

State Human Resources website, www.oshr.nc.gov.  The back pay application form

requires the following information:

(a)           agency or university name;

(b)           division or department or school;

(c)           employee name;

(d)           social security number;

(e)           position classification;

(f)            position number; and

(g)           a notarized sworn statement verifying the following

information for a total earnings calculation:

(i)            gross earnings for back pay;

(ii)           interim income, not including secondary

employment approved prior to adverse action; and

(iii)          unemployment compensation (untaxed).

(12)         One component of the decision to award back

pay shall be evidence, if any, of the grievant's efforts to obtain available,

suitable employment following separation from state government. The burden of

proof that an employee mitigated his or her lost wages by seeking employment

following separation shall be on the employee.

 

History Note:        Authority G.S. 126-4(9); 126-34.01; 126

-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 ncac 01J .1307           FRONT PAY

In grievances filed on or after August 21, 2013:

(1)           Front pay may be awarded in all cases in

which front pay is warranted by law.

(2)           "Front pay" is the payment to an

employee above his or her regular salary, the excess amount representing the

difference between the employee's salary in his or her current position and a

higher salary determined to be appropriate due to a finding of discrimination.

(3)           Front pay may also result from an order of

reinstatement to a position of a particular level that the agency is unable to

accommodate immediately.  Front pay shall be paid for such period as the agency

is unable to hire, promote, or reinstate the employee to a position at the

appropriate level and as warranted by law. 

(4)           Front pay shall terminate upon acceptance

or rejection of a position to which the employee has been determined to be

entitled.

(5)           Front pay shall be available as a remedy in

cases involving hiring, promotion, demotion, or dismissal. 

(6)           Front pay shall be payable under the same

conditions as back pay except that the only deductions from front pay shall be

for usual and regular deductions for state and federal withholding taxes and

the employee's retirement contribution.  There may also be a deduction for

other employment earnings, whether paid by the state or another employer, so as

to avoid unjust enrichment of the grievant. 

(7)           Shift pay and holiday premium pay shall not

be available on front pay.

 

History Note:        Authority G.S. 126-4(9); 126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1308           LEAVE

(a)  An employee shall be credited on reinstatement with all

vacation leave that would have been earned except for the interruption in

employment.

(b)  An employee shall be credited on reinstatement with all

sick leave that would have been earned except for the interruption in

employment.

(c)  The decision as to whether or not to allow the

reinstated employee to purchase back the vacation leave paid out in a lump sum

at dismissal is within the discretion of the agency. A failure to allow such

repurchase is not grievable.

(d)  Employees reinstated from dismissal shall have their

former balance of sick leave at dismissal reinstated, in addition to the credit

for sick leave that would have been earned except for the dismissal.

 

History Note:        Authority G.S. 126-4(9); 126-34.02;

Temporary Adoption Eff. February 28, 2014;

Temporary Adoption Expired December

12, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1309           HEALTH INSURANCE

Employees reinstated from dismissal shall be entitled to

either retroactive coverage under the state health insurance plan or to

reimbursement up to the amount the state contributes for employee only

coverage. The employee shall have the right to elect between these two choices,

provided that if the employee elects reimbursement, the employee may do so only

if the employee had secured alternate health insurance coverage during the

period of interruption of employment. The employee shall not be reimbursed for

the cost of coverage of dependents or spouse during the period between

dismissal and reinstatement, but the employee may choose to purchase that retroactive

coverage. It is the responsibility of the employee to provide proof of

insurance or insured expenses incurred during the period of unemployment.

 

History Note:        Authority G.S. 126-4(9); 126-34.02;

Temporary Adoption Eff. February 28, 2014;

Temporary Adoption Expired December

12, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1310           iNTEREST

The state shall not pay interest on any back pay award.

 

History Note:        Authority 126-4(9);

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

 

25 NCAC 01J .1311           REINSTATEMENT

When an employee who was dismissed or demoted is reinstated,

the employee shall return to employment in the same position, or a similar

position at management's option, at the same salary grade or salary grade

equivalency that the employee was employed prior to dismissal.  The agency may

reinstate an employee to a similar position assigned to a duty station that is

in a different location than the prior assigned duty station.  If the new duty

station is 50 miles or more from the prior assigned duty station, then the

agency may choose to pay moving and relocation expenses in accordance with

Section 6.6 of the State Budget Manual located on the Office of State Budget

and Management website at

http://www.osbm.state.nc.us/files/pdf_files/BudgetManual.pdf, which is hereby

incorporated by reference including any subsequent amendments and editions.

 

History Note:        Authority G.S. 126-4(9); 126-34.02;

Temporary Adoption Eff. February 28, 2014;

Temporary Adoption Expired December

12, 2014;

Eff. April 1, 2015.

 

25 ncac 01j .1312           CAUSES FOR REINSTATEMENT

For grievances filed on or after August 21, 2013,

reinstatement from dismissal, suspension, or demotion may be ordered only upon

a finding of lack of substantive just cause (Rule .0604 of this Subchapter); discrimination,

harassment, or retaliation prohibited by G.S. 126-16 and G.S. 126-34.02; or

that an employee was dismissed, suspended, or demoted in violation of G.S.

126-34.02 because he or she was a whistleblower. For the purpose of this Rule,

and in addition to those matters listed in Rule .0604 of this Subchapter,

failure to issue the required number and kind of warnings or other disciplinary

actions prior to dismissal for unsatisfactory job performance shall constitute

a lack of substantive just cause.

 

History Note:        Authority G.S. 126-4(9); 126-34.02;

126-35;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1313           SUSPENSION WITHOUT PAY

For grievances filed on or after August 21, 2013, back pay

shall be ordered in those cases in which it is determined that a suspension

without pay lacked substantive just cause or was an act of

discrimination, harassment, or retaliation prohibited by G.S. 126-16 or G.S. 126-34.02;

or violated G.S. 126-34.02 because the employee was found to be whistleblower

under Article 14 of Chapter 126 of the General Statutes.

 

History Note:        Authority G.S. 126-4(6); 126-16;

126-34.02; 126-35;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1314           DISCRIMINATION, harassment, OR

retaliation

For grievances filed on or after August 21, 2013, back pay,

transfer, promotion, or other appropriate remedies, including corrective

remedies, may be ordered where discrimination, harassment, or retaliation in

violation of G.S. 126-16 or G.S. 126-34.02 is found.

 

History Note:        Authority G.S. 126-4(9); 126-16; 126.34.01;

126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 ncac 01j .1315           VOLUNTARY PROGRAMS OR BENEFITS

Voluntary programs and benefits are the choice of the

employee and the employee's financial responsibility.  Voluntary benefits and

programs include 401K programs, voluntary health and life insurance programs,

or deferred compensation.  Volunteer programs and benefits shall not be

addressed by any remedy under these Rules or G.S. 126.  To the extent that

retroactive coverage or membership is available, the grievant is responsible

for initiating any necessary action against any third party to obtain such benefits.

 

History Note:        Authority 126-4(9); 126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 ncac 01j .1316           REMEDIES FOR PROCEDURAL VIOLATIONS

(a)  Failure to give written notice of applicable appeal

rights in connection with a dismissal, demotion, or suspension without pay shall

be deemed a procedural violation.  The sole remedy for this violation shall be

an extension of the time in which to file an appeal.  The extension shall be

from the date of the procedural violation to no more than 30 calendar days from

the date the employee is given written notice of applicable appeal rights.

(b)  Failure to give specific reasons for dismissal,

demotion, or suspension without pay shall be deemed a procedural violation.

Back pay, attorney's fees, or both may be awarded for such a violation.  Back

pay or attorney's fees, or both may be awarded for such a period of time as is

appropriate under the law, considering all the circumstances.

(c)  Failure to conduct a pre‑dismissal conference

shall be deemed a procedural violation.  Further, the remedy for this violation

shall require that the employee be granted back pay from the date of the

dismissal until a date determined appropriate in light of the purpose of pre‑dismissal

conferences, which is to provide notice to the employee and an opportunity to

be heard. Reinstatement shall not be a remedy for lack of a pre‑dismissal

conference.

 

History Note:        Authority G.S. 126-4(9); 126-34.02;

126-35;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1317           REMEDIES: SALARY ADJUSTMENTS

(a)  No department, agency, or university may use within‑grade

or within-range salary adjustments as a method of resolving any grievance,

contested case, or lawsuit without advance notice to the Office of State Human

Resources and the written approval of the State Human Resources Director.

(b)  Any within‑grade or within-range salary

adjustment proposed to be approved by the State Human Resources Director shall

be in compliance with existing salary administration policies (see 25 NCAC 01D

.0100 et. seq.) or have prior approval as an exception to or waiver from the

policies in accordance with 25 NCAC 01A .0104.

 

History Note:        Authority G.S. 126-4(2); 126-34.01;

126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1318           CERTAIN REMEDIES NOT AVAILABLE

The following remedies shall not be awarded in appeals under

G.S. 126:

(1)           compensatory;

(2)           punitive, except as allowed under G.S. 126-87;

(3)           exemplary; or

(4)           other special damages.

The only available relief is back pay, front pay, or other

omitted benefits, along with attorney's fees in certain cases.

 

History Note:        Authority G.S. 126-4(9); 126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 Ncac 01j .1319           SITUATIONS IN WHICH ATTORNEY'S FEES

MAY BE AWARDED

For grievances filed on or after August 21, 2013, attorney's

fees may be awarded only in the following situations:

(1)           the grievant is reinstated;

(2)           the grievant is awarded back pay from

either a demotion or a dismissal, without regard to whether the grievant has

been reinstated; or

(3)           the grievant prevails in a whistleblower

grievance.

 

History Note:        Authority G.S. 126-4(11); 126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

25 NCAC 01J .1320           ATTORNEY'S FEES MAY BE AWARDED AS A

RESULT OF A SETTLEMENT

Attorney's fees may be paid as the result of a settlement in

the grievance procedure, providing such fees are explicitly incorporated as a

part of a settlement agreement signed by both parties.

 

History Note:        Authority 126-4(11); 126-34.01;

126-34.02;

Temporary Adoption Eff. May 23, 2014;

Eff. April 1, 2015.

 

Section .1400 – EMPLOYEE MEDIATION AND GRIEVANCE PROCESS

 

25 NCAC 01J .1401           MINIMUM PROCEDURAL REQUIREMENTS

25 NCAC 01J .1402           FLEXIBILITY

25 NCAC 01J .1403           INFORMAL MEETING WITH SUPERVISOR

25 NCAC 01J .1404           MEDIATION PROCEDURE

25 NCAC 01J .1405           CONCLUSION OF MEDIATION

25 NCAC 01J .1406           LIMITATIONS ON A MEDIATION AGREEMENT

25 NCAC 01J .1407           POST MEDIATION

 

History Note:        Authority G.S. 126-4(1); 126-4(6);

126-4(7); 126-4(9); 126-4(10); 126-4(17); 126-16; 126-34; 126-34.1; 126-34.2;

126-35; 126-36; 126-37; 126-38; 150B-23; S.L. 2013-382;

Eff. March 1, 2005;

Temporary Repeal Eff. May 23, 2014;

Repealed Eff. April 1, 2015.

 

25 NCAC 01J .1408           employee responsibilities for

mediaTION

25 NCAC 01J .1409           AGENCY RESPONSIBILITIES FOR MEDIATION

25 NCAC 01J .1410           OFFICE OF STATE PERSONNEL

RESPONSIBILITIES

 

History Note:        Authority G.S.  126-4(6); 126-4(9);

126-4(10); 126-34-01; 126-34.02;

Eff. March 1, 2005;

Temporary Repeal Eff. May 23, 2014;

Repealed Eff. April 1, 2015.

 

25 NCAC 01J .1411           AGENCY PROCEDURAL REQUIREMENTS FOR

EMPLOYEE Mediation and Grievance Policy

25 NCAC 01J .1412           Office of State Personnel

Responsibilities for Employee Mediation and Grievance Process

 

History Note:        Authority G.S. 126-4(9); 126-4(10);

126-34.1(a); S.L. 2013-382;

Eff. March 1, 2005;

Temporary Repeal Eff. May 23, 2014;

Repealed Eff. April 1, 2015.