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Repealed Eff.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Repealed Eff.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Repealed Eff.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Repealed Eff.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Repealed Eff.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.
