REG 05.25.06 EHRA Non-Faculty Employee Reviews and Appeals

Authority:  Issued by Vice Chancellor for Finance and Administration.  Changes or exceptions to administrative regulations issued by the VC F&B  may only be made by the VC F&B.

History: First Issued: October 30, 2012.

Related Policies:
UNC Policy 300.1.1 – Senior Academic and Administrative Officers

UNC Policy 300.2.1 – Employees Exempt from the State Human Resources 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 Human Resources Act (EHRA)
NCSUPOL01.05.08 – 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 REG05.35.01 – Mediation Procedure for Faculty and Staff

Additional References:
Review and Appeal Processes for EHRA Non-Faculty Employees Chart

1.    Introduction

This regulation serves as a companion to NCSU POL 05.25.03 – Review and Appeal Processes for EHRA Non-Faculty Employees (EHRA Professionals and Tier-II Senior Academic and Administrative Officers) and establishes the procedures to be followed after an EHRA non-faculty employee has filed a grievance or appeal pursuant to section 611 of The Code of the UNC Board of Governors (“The Code”).

2.  Referral to Office for Institutional Equity and Diversity (OIED)

If an EHRA Request for Review form submitted by an employee includes an allegation of  prohibited discrimination, the review is first referred to the university’s Office for Institutional Equity and Diversity (OEID) for a preliminary assessment.  The request for review is held in abeyance and all proceedings are put on hold while the OIED assesses the allegations of discrimination.

2.1  OIED Investigation

If the OIED determines that the complaint contains allegations that, if true, might constitute a violation of NC State’s Equal Opportunity and Non-Discrimination Policy, the OIED will initiate an investigation in accordance with NCSU REG 04.25.02 (Resolution Procedures for Discrimination, Harassment and Retaliation Complaints).  The amount of time required for an OIED investigation will depend on the specifics of the issues involved, however, all assessments and investigations are undertaken with the goal of being completed within sixty (60) calendar days.  OIED will notify the Director of Employee Relations of the outcome.

2.2 OIED Findings and Continuation of Review

If there are no findings by the OIED that result in a violation of NC State’s Equal Opportunity and Non-Discrimination Policy, the ER Director will meet with the employee to determine if the employee would like to continue the review or withdraw the request for review in whole or in part.

If the review moves forward, the ER Director will meet with the department head or the next higher-level administrator to review the employee’s request for review.

3.  Review Assistants

Employees may – but are not required to — have an assistant available to support them during the review process.  An employee can either obtain his/her own review assistant, or the ER Director may make arrangements to assign  a trained assistant.

3.1  Review Assistant Minimum Requirements

A review assistant must be a current NC State employee in good standing and who is not undergoing disciplinary action. The review assistance must have attended training conducted by Employee Relations.  The review assistant serves in a confidential, support role and may not advocate or be a witness for the employee..4.2  Paid Leave

With approval, advance notice to and coordination with his/her supervisor, a review assistant may utilize up to three (3) hours of paid work time in order to assist the employee in preparing his/her case.

4.0  Step One

4.1  Notice to Department Head

Within three (3) business days following receipt of the EHRA Request for Review form from the employee (or OIED report, if applicable), the ER Director will provide the department head with a copy of the employee’s EHRA Request for Review form and advise the appropriate department head in writing that he/she has responsibility to conduct a Step One meeting:

4.2  Purpose of Step One Meeting

The purpose of the Step One meeting is to attempt to resolve the issue to the mutual satisfaction of the employee and the department at the lowest administrative level. The ER Director will be available to meet with the appropriate department head if requested.

4.3  Participation in Step One Meeting

The employee may choose to have a review assistant attend the Step One meeting. Only the appropriate department head and the employee – plus a designated review assistant (if desired by the employee) may attend the Step One Meeting.  No attorneys may be present, and no recording may be taken in this meeting.

4.4  Department Head Decision

4.4.1  Consultation

After the Step One meeting, the department head may seek subsequent information from other relevant parties, as appropriate, including the individual whose actions gave rise to the employee’s concerns, in order to understand the nature and scope of the situation and to formulate an informed response.

4.4.2  Notification of Written Decision

Within ten (10) business days following the Step One meeting, the department head will issue a written decision to the employee with copies provided to the immediate supervisor and the ER Director.  If applicable, the Step One decision shall include any recommendations to resolve the employee’s concern, with a timeframe for implementing any such recommendations.  The department head should consult with the ER Director before issuance of any recommendation that might result in a deviation from University policies, regulations, rules or standard operating procedures.

The department head’s Step One decision will be sent to the employee’s address of record by a means that assures delivery and provides proof of receipt (i.e. FedEx, USPS certified mail, return receipt required, hand-delivered with signature receipt).  If the appropriate department head’s decision resolves the employee’s concern, the review is closed.

5.0  Step Two

If the employee’s concerns are not resolved, the employee may proceed to Step Two pursuant to section 9 of NCSU POL 05.25.03 (Review and Appeal Processes for EHRA Non-Faculty Employees)Step Two consists of a hearing conducted by a Review Panel made up of EHRA non-faculty professionals.

5.1  Review Panel

5.1.1  The ER Director will maintain a list of designated EHRA non-faculty employees who have been trained and who may be called upon to serve as review panelists.

5.1.2  The ER Director shall provide the names of five (5) potential panelists to both parties — after ensuring that no proposed panel member has a potential conflict of interest by virtue of significant interactions with either party — at least fifteen (15) business days prior to the scheduled date of the hearing.  Either or both of the parties may strike the name of any one proposed panelist; a request to strike a panelist must be delivered in writing to the ER Director within three (3) business days following provision of the proposed panelist names; no reason or explanation for striking a name need be provided.  Within five (5) business days, the ER Director will finalize, empanel, and arrange a procedural meeting with the 3-person review panel and will notify the parties in writing of the panel’s final membership.

5.1.3 The ER Director will schedule a pre-hearing procedural meeting/training session with the Review Panel members at least seven (7) business days prior to the actual review hearing date to plan for the review hearing. During this procedural meeting/training session, the panelists will select one member to serve as Panel Chair, who will oversee the hearing and draft the Review Panel’s findings and recommendations.   The meeting is procedural only and will not involve panel review of the allegations  or merits of the case.

5.2  Time and Place of Review Hearing

5.2.1  The ER Director will coordinate and schedule the time, date, and location of the review hearing and shall inform the parties and panelists accordingly.  Every attempt will be made to conduct the review hearing within 30 calendar days of receipt of the employee’s request for a Step Two hearing.

5.2.2 Requests by either party for a continuance of a scheduled review hearing will be entertained in compelling circumstances only and must be submitted to the ER Director in writing, and within three (3) business days upon notification of the date of  the review hearing. The ER Director may grant such requests upon a showing of good cause.

5.3  Hearing Preparation

5.3.1  Written Information

Once the date for the review hearing has been set, the ER Director will advise both parties to submit one hard copy of the information listed below to the ER Director within five (5) business days.  The ER Director will then provide the information to the panel and the other party.  The information provided must include:

–  a written summary of the allegations or concerns (if the employee), or, a written summary of the position of management in response to the allegations (by management);
–  any documentation the party wishes to present to support his case or position;
–  a list of the party’s proposed witnesses, and the specific aspects of the case to which each proposed witness is expected to discuss if called.  General character witnesses, or others without first-hand knowledge of the situation giving rise to the request for review, are not appropriate and are not to be included.

The ER Director will consult on the reasonableness and relevance of any other requests for information by the employee to the department. The ER Director will provide each party with a copy of the other party’s written position statement, exhibits, and witness list no later than seven (7) business days prior to the review hearing.

The Review Panel may determine the admissibility of any proposed materials or witness testimony and may instruct the ER Director which witnesses to arrange for attendance.

5.3.2  Paid Leave

With advance notice to and coordination with the supervisor, the employee may utilize up to eight (8) hours of paid work time in order to prepare for the review hearing.

5.3.3  Personnel File

If requested by the employee and with advance notice, the supervisor shall allow the employee to review and/or to have one copy made of their personnel file during business hours. A department representative has a right to be present while the employee is reviewing his/her personnel file.

5.4  Hearing

5.4.1  Panel Chair Authority

The Panel Chair shall oversee the review hearing.  The Panel Chair has the authority to prescribe the order and conduct of the hearing; to determine the relevance and/or admissibility of the evidence or testimony; and to take any other action necessary to ensure an appropriate and fair review hearing.

5.4.2  Time Limit

The review hearing will be limited to a maximum of three (3) hours total.

5.4.3  General Hearing Rules

– Each party may make an opening statement not to exceed a maximum 10 minutes in length.
– Each party shall have the opportunity to present materials and to call and question their witnesses and to ask questions of any witnesses presented by the other party. The witnesses may not ask questions of others, except to seek clarification of questions being asked of them.
– Witnesses may be sequestered outside the hearing room and called as necessary.
– Panel members may address  questions directly to a party, although the Chair may determine whether the question and any response would be germane to the issue(s).
– Each party may make a closing statement not to exceed a maximum of 10 minutes in length.  Management shall make its closing statement first; the employee shall have the right to make the last statement.

5.4.4  Failure to Appear

If the employee fails to appear at the review hearing or fails to provide a showing of good cause for failing to appear, the review will be administratively closed and not subject to further consideration.  If the department head or higher-level administrator fails to appear at the review hearing or fails to provide a showing of good cause for failing to appear, the review hearing will proceed without the department head administrator in attendance.

5.4.5  Recording

The ER Director shall arrange to have the review hearing will be recorded.  Either party  may request a copy of the recording by contacting the ER Director three (3) business days after the conclusion of the review hearing.  Use of any other recording device by any other party is not permitted in the room where the review hearing is conducted.

5.5  Step Two Report

The Panel Chair will prepare a written report, setting forth the Review Panel’s findings, conclusions, and any recommendations regarding the issue(s) presented within ten (10) business days of the conclusion of the review hearing, to be submitted to the Chancellor or his/her designee via the ER Director.

Within thirty (30) business days of receipt of the written report, the Chancellor or his/her designee will review the report and any recommendations of the Review Panel and will issue a final decision in writing to the parties with a copy to the ER Director. The ER Director will notify the  Review Panel of the final result.