2.2-3004 - Grievances qualifying for a grievance hearing; grievance hearing generally.
§ 2.2-3004. Grievances qualifying for a grievance hearing; grievance hearinggenerally.
A. A grievance qualifying for a hearing shall involve a complaint or disputeby an employee relating to the following adverse employment actions in whichthe employee is personally involved, including but not limited to (i) formaldisciplinary actions, including suspensions, demotions, transfers andassignments, and dismissals resulting from formal discipline orunsatisfactory job performance; (ii) the application of all written personnelpolicies, procedures, rules and regulations where it can be shown that policywas misapplied or unfairly applied; (iii) discrimination on the basis ofrace, color, religion, political affiliation, age, disability, nationalorigin or sex; (iv) arbitrary or capricious performance evaluations; (v) actsof retaliation as the result of the use of or participation in the grievanceprocedure or because the employee has complied with any law of the UnitedStates or of the Commonwealth, has reported any violation of such law to agovernmental authority, has sought any change in law before the Congress ofthe United States or the General Assembly, or has reported an incidence offraud, abuse, or gross mismanagement; and (vi) retaliation for exercising anyright otherwise protected by law.
B. Management reserves the exclusive right to manage the affairs andoperations of state government. Management shall exercise its powers with thehighest degree of trust. In any employment matter that management precludesfrom proceeding to a grievance hearing, management's response, including anyappropriate remedial actions, shall be prompt, complete, and fair.
C. Complaints relating solely to the following issues shall not proceed to ahearing: (i) establishment and revision of wages, salaries, positionclassifications, or general benefits; (ii) work activity accepted by theemployee as a condition of employment or which may reasonably be expected tobe a part of the job content; (iii) contents of ordinances, statutes orestablished personnel policies, procedures, and rules and regulations; (iv)methods, means, and personnel by which work activities are to be carried on;(v) termination, layoff, demotion, or suspension from duties because of lackof work, reduction in work force, or job abolition; (vi) hiring, promotion,transfer, assignment, and retention of employees within the agency; and (vii)relief of employees from duties of the agency in emergencies.
D. Decisions regarding whether a grievance qualifies for a hearing shall bemade in writing by the agency head or his designee within five workdays ofthe employee's request for a hearing. A copy of the decision shall be sent tothe employee. The employee may appeal the denial of a hearing by the agencyhead to the Director of the Department of Employment Dispute Resolution (the"Director"). Upon receipt of an appeal, the agency shall transmit theentire grievance record to the Department of Employment Dispute Resolutionwithin five workdays. The Director shall render a decision on whether theemployee is entitled to a hearing upon the grievance record and otherprobative evidence.
E. Proceedings for review of the decision of the Director may be made by anemployee filing a notice of appeal within five workdays of receipt of thedecision. Within five workdays thereafter, the agency shall transmit to theclerk of the circuit court in the jurisdiction in which the grievance arose acopy of the grievance record. The court, on motion of the grievant, may issuea writ of certiorari requiring the Director to transmit the record on orbefore a certain date. Within thirty days of receipt of such records, thecourt, sitting without a jury, shall hear the appeal on the record and suchadditional evidence as may be necessary to resolve any controversy as to thecorrectness of the record. The court, in its discretion, may receive suchother evidence as the ends of justice require. The court may affirm thedecision of the Director or may reverse or modify the decision. The decisionof the court shall be rendered no later than the fifteenth day from the dateof the conclusion of the hearing. The decision of the court shall be finaland shall not be appealable. The circuit court hearing shall be at no cost tothe Commonwealth or the grievant.
F. The hearing pursuant to § 2.2-3005 shall be held in the locality in whichthe employee is employed or in any other locality agreed to by the employee,employer, and hearing officer. The employee and the agency may be representedby legal counsel or a lay advocate, the provisions of § 54.1-3904notwithstanding. The employee and the agency may call witnesses to presenttestimony and be cross-examined.
(1995, cc. 770, 818, § 2.1-116.06; 1996, cc. 164, 869; 2001, c. 844.)