EDR Scope of Relief

VI. Scope of Relief

General
Under the employment dispute resolution statutes, management is reserved the exclusive right to manage the affairs and operations of state government. In addition, challenges to the content of state or agency human resource policies and procedures are not permitted to advance to a hearing. Thus, in fashioning relief, the reasonableness of an established policy or procedure itself is presumed, and the hearing officer has no authority to change the policy, no matter how unclear, imprudent or ineffective he believes it may be. Further, a hearing officer is not a "super-personnel officer." Therefore, in providing any remedy, the hearing officer should give the appropriate level of deference to actions by agency management that are found to be consistent with law and policy.
In general, the hearing officer is not limited to the specific relief requested by the employee on the Form A, as long as the relief granted is consistent with law and policy. When the grievance involves a disciplinary matter, the hearing officer may uphold or reverse the disciplinary action challenged by the grievance, or, in appropriate circumstances, modify the action; he may also order the reinstatement of a grievant terminated for disciplinary reasons with partial or full backpay for the period of termination. In matters not involving discipline, the scope of relief available through the grievance procedure is more limited. For example, an award of back pay may be permissible only if under the facts, established policy, and law an entitlement to compensation is found; further, in such a case, the amount of awarded back pay would be limited to the 30 calendar day statutory period preceding the initiation of the grievance.
Hearing officers should be aware that as of 2000, a party may petition the circuit court for an order implementing a hearing officer’s order or recommendation. Therefore, hearing officers should be cognizant that, as a practical matter, their recommendations may have the same force and effect as their orders. If a recommendation is made, the hearing decision should clearly identify it as such and distinguish it from an order. Absent a court order, an agency is not compelled to act upon any recommendation. All remedies provided by a hearing officer in his decision, whether ordered or recommended, must conform to law and policy.
Disciplinary Actions Under the Standards of Conduct, offenses are grouped into three levels according to the severity of the behavior. Group I offenses include behavior that is the least severe in nature but requires correction to maintain a productive and well-managed work force. Group II offenses include behavior that is more severe in nature and may result in up to 10 days of suspension without pay. Group III offenses include behavior of such a serious nature that it normally warrants discharge. As the Standards of Conduct states, the listed offenses are not "all inclusive, but are intended to be illustrative of the minimum expectations for acceptable work performance and workplace behavior." Accordingly, agencies may issue a Written Notice for an offense not specifically listed in the Standards of Conduct. In all circumstances, however, the employee must receive notice of the charges in sufficient detail to allow the employee to provide an informed response to the charge.

Framework for Determining Whether Discipline was Warranted and Appropriate

The responsibility of the hearing officer is to determine whether the agency has proven by a preponderance of the evidence that the disciplinary action was warranted and appropriate under the circumstances. To do this, the hearing officer reviews the facts de novo (afresh and independently, as if no determinations had yet been made) to determine (i) whether the employee engaged in the behavior described in the Written Notice; (ii) whether the behavior constituted misconduct, (iii) whether the agency’s discipline was consistent with law (e.g., free of unlawful discrimination) and policy (e.g., properly characterized as a Group I, II, or III offense) and, finally, (iv) whether there were mitigating circumstances justifying a reduction or removal of the disciplinary action, and if so, whether aggravating circumstances existed that would overcome the mitigating circumstances.
In reviewing agency-imposed discipline, the hearing officer must give due consideration to management’s right to exercise its good faith business judgment in employee matters, and the agency’s right to manage its operations. Therefore, if the hearing officer finds that (i) the employee engaged in the behavior described in the Written Notice, (ii) the behavior constituted misconduct, and (iii) the agency’s discipline was consistent with law and policy, the agency’s discipline must be upheld and may not be mitigated, unless, under the record evidence, the discipline exceeds the limits of reasonableness. (See Mitigating and Aggravating Circumstances below.)
Sometimes an employee may experience an "adverse employment action" (e.g., discharge, transfer, demotion, etc.) that is not accompanied by a formal Written Notice as contemplated by the Standards of Conduct, but which may have been taken for essentially disciplinary reasons -- in other words, to correct or penalize behavior by enforcing applicable standards of conduct or performance. If the grievance is qualified, the grievant will have the burden of proving at hearing that the contested adverse employment action, though unaccompanied by a formal Written Notice, was nevertheless taken for disciplinary reasons. If the hearing officer finds that the contested action was disciplinary, the agency will have the burden of proving that the action, though disciplinary, was warranted. As with formal disciplinary actions, the hearing officer shall consider mitigating and aggravating circumstances, giving appropriate deference to the agency’s right to manage its affairs.
1. Mitigating and Aggravating Circumstances: The Standards of Conduct allows agencies to reduce the disciplinary action if there are "mitigating circumstances," such as "conditions that would compel a reduction in the disciplinary action to promote the interests of fairness and objectivity; or . . . an employee’s long service, or otherwise satisfactory work performance." A hearing officer must give deference to the agency’s consideration and assessment of any mitigating and aggravating circumstances. Thus, a hearing officer may mitigate the agency’s discipline only if, under the record evidence, the agency’s discipline exceeds the limits of reasonableness. If the hearing officer mitigates the agency’s discipline, the hearing officer shall state in the hearing decision the basis for mitigation.
  Examples of "mitigating circumstances" include:
  - Lack of Notice: The employee did not have notice of the rule, how the agency interprets the rule, and/or the possible consequences of not complying with it. However, an employee may be presumed to have notice of written rules if those rules had been distributed or made available to the employee. Proper notice of the rule and/or its interpretation by the agency may also be found when the rule and/or interpretation have been communicated by word of mouth or by past practice. Notice may not be required when the misconduct is so severe, or is contrary to applicable professional standards, such that a reasonable employee should know that such behavior would not be acceptable.
  - Inconsistent Application: The discipline is inconsistent with how other similarly situated employees have been treated.
  - Improper Motive: The discipline was tainted by improper motive, such as retaliation or discrimination.
2. Accumulated Discipline: Under the Standards of Conduct, Written Notices remain "active" for a specified period of time and may be used, while "active," in conjunction with other disciplinary actions by the agency as the basis for suspending, transferring, demoting, or terminating an employee. Because the active life of a Written Notice is prescribed by policy, the hearing officer cannot change the length of the active life as a means of reducing the discipline.
  If the grievance involves an agency action based on accumulated active Written Notices, the hearing officer must ascertain from the agency whether any of the other Written Notices supporting the action are being grieved. If so, final disposition of the grievance before the hearing officer must wait until the grievances on the other Written Notices have been decided. The hearing officer should determine immediately the appropriate level of discipline (Group I, II, or III) for the grievance before him or her, but must await the outcome of the other grievance(s) to determine whether there are sufficient cumulative active Written Notices to support the agency’s disciplinary action.
3. Suspension and Termination: The Standards of Conduct provides maximum limits on the number of days of suspension associated with a disciplinary action. For example, in order to sustain a full 30-workday suspension, a Group III Written Notice or two active Group II Written Notices or four active Group I Written Notices are necessary. The hearing officer has authority to order a lesser, but not greater, number of days of suspension.
  
  An employee may be terminated for misconduct based on the receipt of a single Group III Written Notice or for the accumulation of active Group I, II, or III Written Notices. A hearing officer may order that the employee be reinstated while upholding the level of the Written Notice, however, the hearing officer must give deference to the agency’s decision to discharge as opposed to suspend an employee. The hearing officer may mitigate discharge to a suspension only if the discharge exceeds the limits of reasonableness. If the hearing officer rescinds or reduces a Written Notice and the employee’s total accumulated active Written Notices are insufficient to sustain a termination, the employee must be reinstated.
4. Back Pay: For grievances involving discipline, back pay may be awarded, and must be considered, if the Written Notice before the hearing officer resulted in a total or partial loss of pay, such as through a termination or suspension. Full, partial, or no back pay for the affected period may be ordered. Other benefits (e.g., earned leave) are restored for the same period and in the same proportion as the back pay award. The hearing officer has no authority to award front pay, damages, or in non-discharge grievances, attorneys’ fees.
  
  If back pay is awarded, it must be offset by interim earnings. Interim earnings include unemployment compensation and other income earned or received to replace the loss of state employment. Thus, if an employee had previously engaged in gainful employment in addition to his or her state employment, the earnings from this ancillary employment would not count as interim earnings.
  
  The authority of the hearing officer in determining the amount of back pay in a disciplinary matter is limited by the accumulated amount of discipline. For example:
  - If a Written Notice is rescinded or reduced, and the total accumulated discipline is insufficient to support a suspension of any length, full back pay must be awarded.
  - If there are insufficient active Written Notices remaining to support a termination, full or partial back pay must be ordered. The amount of back pay that may be withheld is limited to the period of suspension allowed by the accumulated Written Notices, as delineated in the Standards of Conduct. For example, if a Group III Written Notice is reduced to a Group II and there are no other active accumulated Written Notices, 10 days of back pay is the maximum that can be withheld.
  - No back pay can be ordered if the termination or suspension without pay resulted from a Written Notice that is not before the hearing officer.
5. Reinstatement: Reinstatement means an order returning the employee to the position he or she formerly held prior to a termination, demotion, or transfer. In some circumstances, reinstatement to the exact same position may not occur. Where the position no longer exists, reinstatement means returning the employee to an objectively similar position, with all incumbent rights at the time of the removal.
Non-disciplinary Actions
As with disciplinary actions, all remedies for non-disciplinary actions must conform to law and policy. (See above Section VI.A, regarding orders and recommendations.)
1. Misapplication or Unfair Application of Policy: If the issue of policy misapplication is qualified for hearing, and the hearing officer determines that a policy mandate has been misapplied or applied unfairly, the hearing officer may order the agency to reapply the policy from the point at which it became tainted, including, where written policy mandates a certain level or type of compensation, making an appropriate upward pay adjustment for the 30 calendar day statutory period preceding the initiation of the grievance. Further, where written policy places specific limitations on removing an employee from his or her position, a hearing officer may order reinstatement when those limitations had not been observed.
  Remedies that conform to law and policy for misapplications or unfair applications of policy may include:
  - A classification review of a position by the agency in accordance with policy (not the award of any particular classification).
  - A repeat of the selection process by the agency in accordance with policy (not the selection of any particular employee for the job).
  - Compensation by the agency of a nonexempt employee for past unpaid overtime work (either at time-and-one-half if the employee has actually worked over 40 hours, or straight time if the hours actually worked do not exceed 40 hours because the employee was on scheduled leave).
  - Compensation by the agency of a promoted employee in accordance with policy.
  - Compensation by the agency of an employee whose position changed to a different role in a higher pay band, if mandated by policy (e.g. bringing salary up to the minimum of the new pay band).
  - Having the agency advise the employee of the potential for further training and/or counseling services (not requiring the agency to provide a service or requiring the employee to participate).
2. Arbitrary or Capricious Performance Evaluation: The Grievance Procedure Manual defines "arbitrary or capricious" as "in disregard of the facts or without a reasoned basis." If a contested performance evaluation is qualified for hearing, and a hearing officer finds that it is arbitrary or capricious, the only remedy is for the agency to repeat the evaluation process and provide a rating with a reasoned basis related to established expectations. The remedy cannot include an award of any particular rating.
3. Retaliation/Discrimination: If the issue of retaliation or discrimination is qualified for hearing and the hearing officer finds that it occurred, the hearing officer may order the agency to create an environment free from discrimination and/or retaliation, and to take appropriate corrective actions necessary to cure the violation and/or minimize its reoccurrence. The hearing officer should avoid providing specific remedies that would unduly interfere with management’s prerogatives to manage the agency (e.g., ordering the discipline of the manager for discriminatory supervisory practices). Bear in mind that any relief designated as a "recommendation" may, as the result of a circuit court’s implementation order, have the same force and effect as an order. See above Section VI.A, regarding orders and recommendations.)
Attorneys’ Fees

In grievance filed on or after July 1, 2004, an employee who is represented by an attorney and substantially prevails on the merits of a grievance challenging his or her discharge is entitled to recover reasonable attorneys’ fees, unless special circumstances would make an award unjust. For such an employee to “substantially prevail” in a discharge grievance, the hearing officer’s decision must contain an order that the agency reinstate the employee to his or her former (or an objectively similar) position. Attorneys’ fees are not otherwise available for employees who prevail at grievance hearings.
When the hearing officer issues the initial decision ordering reinstatement, the decision is considered an “original” decision as described in §7.2(a) of the Grievance Procedure Manual and §VII(A) of these Rules for Conducting the Grievance Hearings (Rules). Thus, within 15 calendar days of the issuance of the original decision, either party may seek administrative review in accordance with §7.2(a) and §VII(A). In addition, counsel for the grievant shall ensure that the hearing officer receives, within 15 calendar days of the issuance of the original decision, counsel’s petition for reasonable attorneys’ fees. The hearing decision shall inform grievant’s counsel of the obligation to timely submit the fees petition.
The fees petition shall include an affidavit itemizing services rendered, the time billed for each service, and the attorney’s customary hourly rate not to exceed $120 per hour ($144 per hour if the attorney’s practice is located in Northern Virginia. ) A copy of the fees petition must be provided to the opposing party at the time it is submitted to the hearing officer. The opposing party may contest the fees petition by providing a written rebuttal to the hearing officer.

If neither party requests an administrative review, the hearing officer must issue an addendum to the decision denying or awarding, in part or in full, the fees requested in the petition and should do so no later than 30 calendar days from the date of the initial decision.

If either party has timely requested an administrative review as described in §VII(A) of the Rules, all other administrative reviews must be issued (including any reconsidered decision by the hearing officer) before the hearing officer issues the fees addendum. The hearing officer should issue the addendum within 15 calendar days of the issuance of the last of the administrative review decisions.

Within 10 calendar days of the issuance of the fees addendum, either party may petition the EDR Director for a decision solely addressing whether the fees addendum complies with the Grievance Procedure Manual and these Rules. Once the EDR Director issues a ruling on the propriety of the fees addendum, and if ordered by EDR, the hearing officer has issued a revised fees addendum, the original decision becomes “final” as described in §VII(B) of the Rules and may be appealed to the Circuit Court in accordance with §VII(C) of the Rules and §7.3(a) of the Grievance Procedure Manual. The fees addendum shall be considered part of the final decision. Final hearing decisions are not enforceable until the conclusion of any judicial appeals.