POL 05.25.03 - Review and Appeal Processes for EHRA Non-Faculty Employees (EHRA Professionals and Tier-II Senior Academic & Administrative Officers)
Authority: Board of Trustees
History: First Issued: November 19, 2010.
UNC Policy 300.1.1 - Senior Academic and Administrative Officers
UNC Policy 300.2.1 - Employees Exempt from the State Personnel Act
UNC Code Section 609 - Appellate Jurisdiction of the Board of Governors
UNC Code Section 611 - Review of Personnel Actions Affecting Specified Employees Exempt from the State Personnel Act (EHRA)
NCSU POL01.05.08 - Faculty and EHRA Non-Faculty Appeals to Board of Trustees
NCSU POL04.25.05 - Equal Opportunity & Non-Discrimination Policy Statement
NCSU REG04.25.02 - Resolution Procedures for Discrimination, Harassment, and Retaliation Complaints
NCSU REG05.20.04 – Post Tenure Review of Faculty
NCSU REG05.35.01 - Mediation Procedure for Faculty and Staff
NCSU REG05.25.06 - EHRA Non-Faculty Employee Reviews and Appeals
Contact Info: Director, HR Employee Relations (919-515-4300)
In accordance with UNC Code and policies, this policy provides for timely and good faith review and attempted resolution of employment-related concerns for those EHRA non-faculty professionals and Tier-II senior academic and administrative officers whose positions are not subject to SHRA grievance or faculty review procedures.
2. COVERED POSITIONS
This campus policy applies to permanent positions that are –
EHRA: Exempt from most provisions of the State Personnel Act (N.C. Gen. Stat. §126-1 et seq.), and instead subject to UNC Policy 300.2.1: Employees Exempt from the State Personnel Act; and either
Professional (non-faculty): As defined in UNC Policy 300.2.1: Employees Exempt from the State Personnel Act, or
SAAO-Tier II: Categorized as “Tier II” senior academic and administrative officers (SAAO), as defined in UNC Policy 300.1.1: Senior Academic and Administrative Officers, Sec. I.B.
This policy does not apply to individuals whose primary appointments are as “Tier I” senior academic and administrative officers; nor to (a) faculty, including non-tenure-track faculty; (b) SHRA staff; (c) county operations support staff (COSS) employees; or (d) postdocs -- each of whom are covered by other policies or regulations.
3. WHAT CAN BE REVIEWED
Allegations of failure to provide the required notice or severance for (a) a discontinuation of at-will employment, (b) expiration of a term appointment, or (c) termination of employment with notice, in accordance with UNC Policies 300.1.1 (for SAAOs) or 300.2.1 (for EHRA non-faculty).
Allegations that an intent to discharge for cause, or other serious sanction, was illegal or violated a policy of the Board of Governors.
Allegations that an interpretation or application of a policy was illegal or violated a policy of the Board of Governors.
Allegations that an adverse employment action was based on unlawful discrimination.
Allegations that the individual was adversely affected as a result of the exercise of rights under the First Amendment of the U.S. Constitution or Article I of the North Carolina Constitutions (as limited by state statute on political activity, and/or by UNC policy).
Allegations that inaccurate or misleading material is contained in the employee’s personnel file and the employee seeks removal of the material.
Other Employment Matters: Consideration of other employment matters that are not listed above may be addressed through department and college/divisional channels described in Sec. 12 below.
4. INFORMAL RESOLUTION
Employees and departmental managers are encouraged to identify and resolve workplace problems promptly and informally. Before filing a request for review, the employee is encouraged to first meet first with the supervisor whose actions gave rise to the complaint, or with the next-level manager.
The HR Office of Employee Relations is available to consult with any employee who has a complaint or concern, and can assist in arranging a timely meeting with the supervisor/manager if requested by the employee. Such a meeting should be requested in writing to the supervisor/manager no more than 10 business days after the decision or action that caused the complaint, and the meeting should occur no more than 10 business days after the request.
5. FILING A REQUEST FOR REVIEW
If the employee is not able to resolve a complaint informally and wishes to pursue the matter, they must submit an EHRA Request for Review Form to Employee Relations, no more than 30 calendar days after the decision or action that caused the complaint.
In accordance with UNC Code Sec. 611, if the written request for review is not received timely, then the personnel action is final without recourse to any institutional review, appeal, or grievance procedure.
The Director of Employee Relations will promptly review the request to determine if the matter falls within the scope of this policy and is timely. If the matter is reviewable, the Director will provide the employee and the department with a set of established procedures that describe the detailed logistics, action steps, and timelines for the review process. If the matter is not reviewable, the Director will provide both parties with written notice of the determination, and the matter is closed.
Mediation is a structured process that allows parties to voluntarily discuss problems and attempt to generate mutually-satisfactory resolutions. Mediation is available whether or not the matter is reviewable under the university’s formal review process.
If both the employee and the department voluntarily agree to participate in mediation, Employee Relations will arrange for trained mediator(s) acceptable to both parties to facilitate a structured mediation session. Mediators are neutral facilitators; they are not arbitrators and have no decision-making role in a mediation session. Any decisions or agreements reached in a mediation must be between the parties themselves; except that an agreement to resolve a complaint that includes prohibited discrimination, harassment, and/or retaliation must also be reviewed and endorsed by the Office for Equal Opportunity (OEO) before it may be finalized.
If mediation does not occur or is not successful, reviewable matters proceed to formal review.
8. STEP ONE: REVIEW BY DIRECTOR/DEPARTMENT HEAD
The first stage of review is by the appropriate department head. If the employee has already met with the department head in an effort to resolve the concern informally – or if the department head is alleged to have engaged in prohibited discrimination against the employee – this step is instead handled by the next-higher level administrator in the reporting chain.
Employee Relations coordinates the meeting with the department head and provides a standard set of written procedures to ensure timeliness of the meeting and the department head’s written decision.
If the concern includes allegations that may violate NCSU POL04.25.05 - Equal Opportunity & Non-Discrimination Policy Statement, the Office for Equal Opportunity (OEO) will first conduct a preliminary review and/or investigation of those aspects of the concern as part of the review process, in accordance with NCSU REG04.25.02 - Resolution Procedures for Discrimination, Harassment, and Retaliation Complaints. OEO will submit a report of its findings to the department head, and provides notice to the parties that the report has been submitted, before the meeting between the employee and the department head.
If the department head’s decision resolves the employee’s concern, the review is closed. If not, the review may be continued to a Review Panel if requested by the employee to Employee Relations within 5 business days following the issuance of the decision.
9. STEP TWO: REVIEW PANEL
A Review Panel is made up of other NC State EHRA non-faculty professionals who have been trained to serve as panelists and who are neither closely associated with, nor have a conflict of interest with, either the employee or the department. The panelists serve as a hearing board, considering the information presented from the employee and from the department.
Employee Relations facilitates the panel selection process from a list of trained panelists that are nominated periodically by the Staff Senate and by each college and division. Either party (the employee and/or the department) can request the replacement of one proposed panelist for any reason; no explanation is required. The panelists select one of the three panelists to serve as the panel chair.
Employee Relations facilitates the meeting logistics and provides established written procedures to the employee, the department, and the panel about the review meeting itself. Employee Relations has no decision-making role in the review.
All attempts will be made to conduct the hearing within 30 calendar days. The employee and the department are allowed to present opening statements, to testify, to provide witness testimony, to cross-examine witnesses, to present the documents that were submitted in advance, and to give closing statements. Strict rules of legal evidence do not apply. The panel has full control of the hearing, may decide who is allowed to testify, may avoid hearing redundant, irrelevant, and repetitive evidence, and may set reasonable time limits for both parties’ presentations.
10. REVIEW PANEL HEARING
Witnesses: During a Review Panel hearing, both the employee and the department may offer witnesses who can testify to the events giving rise to the action being reviewed.
Hearing Assistants: The employee may also consult with another NC State employee – one who has been trained to serve as a “hearing assistant” – and who is available to assist the employee in developing their case. The assistant may attend the hearing in a support role but may not speak on behalf of the employee as an advocate, spokesperson, or witness; or present the employee’s case on their behalf; or otherwise actively participate in the hearing. Information shared by an employee with their assistant is considered confidential and is not to be divulged except as required by law.
Other Participants: A member of the Employee Relations staff serves as a meeting facilitator. Since a hearing is an internal effort on the part of the University to address confidential personnel complaints or disputes – rather than a formal legal or judicial hearing – it is a closed meeting. Neither the employee nor the department may have an attorney at the hearing.
The Panel considers only evidence presented at the hearing and such written or oral arguments as the Panel, in its discretion, may allow. The employee or former employee has the burden of proof based on a “preponderance of evidence” standard.
After the hearing, the Panel deliberates and may consult with Employee Relations, Office of General Counsel or OEO staff (as appropriate based on the subject matter of the review), who serve in an advisory capacity only. The Panel itself has no power to reverse an administrative decision; the Panel can only recommend a reassessment of that decision if it reaches the conclusion, based on the preponderance of evidence, that the decision was reached improperly. The Panel presents its recommendations – along with the records of the hearing – to the Chancellor (or designee if delegated by the Chancellor). After review of the official record and the Panel’s recommendation, the Chancellor shall issue a written determination.
11. FINAL APPEAL
If the Chancellor either declines to accept a Panel recommendation that is favorable to the employee, or concurs with a Panel recommendation that is unfavorable to the employee, the employee may appeal to the Board of Trustees in accordance with UNC Code Sec. 611. In accordance with UNC Code Sec. 611 and NCSU POL01.05.08 - Faculty and EHRA Non-Faculty Appeals to Board of Trustees, the decision of the Board of Trustees is final.
12. OTHER ISSUES AND ACTIONS
Concerns over general organizational issues or actions are not reviewable through the Review Hearing process, but consideration may be requested through departmental and college/divisional channels. This includes but is not limited to issues such as job title or job-category assignment; assigned rates or ranges of pay; organizational changes, such as department reorganizations or reallocation of resources; performance evaluations; work schedules or flex schedule decisions; position elimination; salary determinations; workplace disagreements among work colleagues; separation due to the unavailability of contingent funding that was stipulated at the time of appointment; the decision to end an at-will appointment; or failure to issue a subsequent fixed-term contract.
An employee with a concern about such issues should first discuss the concern with the supervisor – or with the departmental manager to whom the supervisor reports.
If that discussion does not resolve the concern, the employee may arrange to meet with the department head. Employee Relations will help arrange the meeting if desired.
If the employee does not consider the issue to be satisfactorily addressed after these discussions, Employee Relations will notify the appropriate administrator, up to the level of dean or vice chancellor, to provide the administrator an opportunity to consider the employee’s concerns. Such decisions by the dean or vice chancellor, including decisions not to review a lower-level action, are final.
Complaints alleging violations of NCSU POL04.25.05 - Equal Opportunity & Non-Discrimination Policy Statement may also be filed with and investigated by the Office for Equal Opportunity. See NCSU REG04.25.02 - Resolution Procedures for Discrimination, Harassment, and Retaliation Complaints.