67-19a - Grievance Procedures
Title 67 > 67-19a
Sections (18)
General Provisions
67-19a-101 - Definitions.
As used in this chapter:
(1) “Abusive conduct” means the same as that term is defined in Section 67-26-102.
(2) “Administrator” means the person appointed under Section 67-19a-201 to head the Career Service Review Office.
(3) “Career service employee” means a person employed in career service as defined in Section 63A-17-102.
(4) “Division” means the Division of Human Resource Management.
(5) “Employer” means the state of Utah and all supervisory personnel vested with the authority to implement and administer the policies of an agency.
(6) “Excusable neglect” means harmless error, mistake, inadvertence, surprise, a failure to discover evidence that, through due diligence, could not have been discovered in time to meet the applicable time period, misrepresentation or misconduct by the employer, or any other reason justifying equitable relief.
(7) “Grievance” means: a complaint by a career service employee concerning any matter touching upon the relationship between the employee and the employer;any dispute between a career service employee and the employer;a complaint by a reporting employee that a public entity has engaged in retaliatory action against the reporting employee ; anda complaint that the employer subjected the employee to conditions that a reasonable person would consider intolerable, including abusive conduct.
(8) “Office” means the Career Service Review Office created under Section 67-19a-201.
(9) “Public entity” means the same as that term is defined in Section 67-21-2.
(10) “Reporting employee” means an employee of a public entity who alleges that the public entity engaged in retaliatory action against the employee.
(11) “Retaliatory action” means to do any of the following to an employee in violation of Section 67-21-3: dismiss the employee;reduce the employee’s compensation;fail to increase the employee’s compensation by an amount that the employee is otherwise entitled to or was promised;fail to promote the employee if the employee would have otherwise been promoted; orthreaten to take an action described in Subsections (11)(a) through (d).
(12) “Supervisor” means the person: to whom an employee reports; orwho assigns and oversees an employee’s work.
Amended by Chapter 169, 2022 General Session
67-19a-102 - Work environment policy.
As recognized and provided in Section 67-26-201 , it is the policy of the state of Utah to provide and maintain a work environment free from abusive conduct.
Amended by Chapter 155, 2020 General Session
Career Service Review Office
67-19a-201 - Career Service Review Office created — Appointment of an administrator — Reporting — Qualifications.
(1) There is created a Career Service Review Office.
(2) The governor shall appoint, with the advice and consent of the Senate, an administrator of the office.The administrator shall have demonstrated an ability to administer personnel policies in performing the duties specified in this chapter.
Amended by Chapter 373, 2020 General Session
67-19a-202 - Powers — Scope of authority.
(1) The office shall serve as the final administrative body to review a grievance from a career service employee and an agency of a decision regarding: a dismissal;a demotion;a suspension;a reduction in force;a dispute concerning abandonment of position;a wage grievance if an employee is not placed within the salary range of the employee’s current position;a violation of a rule adopted under Title 63A, Chapter 17, Utah State Personnel Management Act; orexcept as provided by Subsection (5), equitable administration of the following benefits:long-term disability insurance;medical insurance;dental insurance;post-retirement health insurance;post-retirement life insurance;life insurance;defined contribution retirement;defined benefit retirement; anda leave benefit.
(2) The office shall serve as the final administrative body to review a grievance by a reporting employee alleging retaliatory action.
(3) The office shall serve as the final administrative body to review, without an evidentiary hearing, the findings of an abusive conduct investigation described in Section 67-26-202 of a state executive branch agency employee.
(4) The office may not take jurisdiction of a matter that an employer has not had an opportunity to address.
(5) The office may not review or take action on: a personnel matter not listed in Subsections (1) through (3);a personnel matter listed in Subsections (1) through (3) that alleges discrimination or retaliation related to a claim of discrimination that is a violation of a state or federal law for which review and action by the office is preempted by state or federal law; ora personnel matter related to a claim for which an administrative review process is provided by statute and administered by:the Utah State Retirement Systems under Title 49, Utah State Retirement and Insurance Benefit Act;the Public Employees’ Benefit and Insurance Program under Title 49, Chapter 20, Public Employees’ Benefit and Insurance Program Act; orthe Public Employees’ Long-Term Disability Program under Title 49, Chapter 21, Public Employees’ Long-Term Disability Act.
(6) The time limits established in this chapter supersede the procedural time limits established in Title 63G, Chapter 4, Administrative Procedures Act.
Amended by Chapter 209, 2022 General Session
67-19a-203 - Rulemaking authority.
(1) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the administrator may make rules governing: definitions of terms, phrases, and words used in the grievance process established by this chapter;what matters constitute excusable neglect for purposes of the waiver of time limits established by this chapter;the application for and service of subpoenas, the service and filing of pleadings, and the issuance of rulings, orders, determinations, summary judgments, transcripts, and other legal documents necessary in grievance proceedings;the use, calling, attendance, participation, and fees of witnesses in grievance proceedings;continuances of grievance proceedings;procedures in hearings, unless governed by Title 63G, Chapter 4, Administrative Procedures Act;the presence of media representatives at grievance proceedings;procedures for sealing files or making data pertaining to a grievance unavailable to the public; andmotions that will assist the parties in meeting the 150-day time limit.
(2) The rule made under Subsection (1)(i) shall: prohibit a party from filing a dispositive motion under Utah Rules of Civil Procedure, Rule 12(b)(6) or Rule 56 before an evidentiary hearing; andauthorize a party to file a motion before an evidentiary hearing to:dismiss for lack of authority to review the grievance under Utah Rules of Civil Procedure, Rule 12(b)(1) or Rule 12(b)(2); orlimit the introduction of evidence.
Amended by Chapter 249, 2010 General Session
67-19a-204 - Administrator — Powers.
(1) In conjunction with any inquiry, investigation, hearing, or other proceeding, the administrator may: administer an oath;certify an official act;subpoena a witness, document, and other evidence; andgrant a continuance as provided by rule.
(2) The administrator may:assign qualified, impartial hearing officers on a per case basis to adjudicate matters under the authority of the office;subpoena witnesses, documents, and other evidence in conjunction with any inquiry, investigation, hearing, or other proceeding;upon motion made by a party or person to whom the subpoena is directed and upon notice to the party who issued the subpoena, quash or modify the subpoena if it is unreasonable, requires an excessive number of witnesses, or requests evidence not relevant to any matter in issue; andact as a hearing officer if the aggrieved employee consents.In selecting and assigning hearing officers under authority of this section, the administrator shall appoint hearing officers that have demonstrated by education, training, and experience the ability to adjudicate and resolve personnel administration disputes by applying employee relations principles within a large, public work force.
Amended by Chapter 339, 2015 General Session
67-19a-205 - Employment transfer.
At any point during the grievance process, the employer and the employee may mutually agree to a transfer of the employee to another equivalent position, if and to the extent that such a position is available, in accordance with division rules for transfer and reassignment.
Amended by Chapter 344, 2021 General Session
Grievance Procedures
67-19a-301 - Charges submissible under grievance procedure.
(1) This grievance procedure may only be used by career service employees who are not: public applicants for a position with the state’s work force;public employees of the state’s political subdivisions;public employees covered by other grievance procedures; oremployees of state institutions of higher education.
(2) Whenever a question or dispute exists as to whether an employee is qualified to use this grievance procedure, the administrator shall resolve the question or dispute.The administrator’s decision under Subsection (2)(a) is reviewable only by the Court of Appeals.
(3) Any career service employee may submit a grievance based upon a claim or charge of injustice or oppression, including dismissal from employment, resulting from an act, occurrence, omission, or condition for solution through the grievance procedures set forth in this chapter.
(4) A reporting employee who desires to bring an administrative claim of retaliatory action shall use the grievance procedure described in Section 67-19a-402.5.
(5) A career service employee who desires to bring a grievance described in Subsection 67-19a-202(1) shall use and follow the grievance procedure described in Part 3, Grievance Procedures, and Part 4, Procedural Steps to Be Followed by Aggrieved Employee.
(6) An employee who desires to initiate an administrative review challenging the findings of an abusive conduct investigation shall use and follow the procedure described in Section 67-19a-501.
Amended by Chapter 390, 2018 General Session
67-19a-302 - Levels of procedure.
(1) The administration of all grievances under Subsection 67-19a-202(1) occurs on the following four levels: Level 1 - the supervisor;Level 2 - the division director or the director’s designee;Level 3 - the agency director or the director’s designee; andLevel 4 - the office.
(2) Except as provided in Subsection (2)(b), Section 67-19a-402.5, and Section 67-19a-501, and subject to applicable time limits as provided in this chapter, an employee:shall file a grievance at the lowest level described in Subsection (1) that has not already issued a decision, taken action, or declined to address the subject of the grievance; andmay proceed for further review of a grievance in accordance with Section 67-19a-402.If a supervisor or division director is a subject of a grievance or complaint, the employee may proceed directly to Level 2 or Level 3, respectively.An employee may not file a grievance that asks the same manager or a lower-level manager to reconsider a previously made decision.
(3) A career service employee may advance all grievances to Level 3.
(4) In accordance with Section 67-19a-402.5 and subject to Section 67-21-4, a reporting employee may file a grievance alleging retaliatory action directly at Level 4.
Amended by Chapter 209, 2022 General Session
67-19a-303 - Employees’ rights in grievance procedure.
(1) For the purpose of submitting and advancing a grievance, a career service employee, or a reporting employee alleging retaliatory action, may: obtain assistance by a representative of the employee’s choice to act as an advocate at any level of the grievance procedure;request a reasonable amount of time during work hours to confer with the representative and prepare the grievance; andcall other employees as witnesses at a grievance hearing.
(2) The state shall allow employees to attend and testify at the grievance hearing as witnesses if the employee has given reasonable advance notice to the employee’s immediate supervisor.
(3) No person may take any reprisals against a career service employee or a reporting employee for: use of or participation in a grievance procedure described in this chapter; orrepresenting and providing assistance to a career service employee as an advocate in accordance with Subsection (1)(a).
(4) If the individual acting as an advocate for a career service employee under Subsection (1)(a) is a state employee, the individual may not receive state compensation for the time the employee spends in the course of that representation unless the individual uses approved leave during that time.
(5) The employing agency of an employee who files a grievance may not place grievance forms, grievance materials, correspondence about the grievance, agency and division replies to the grievance, or other documents relating to the grievance in the employee’s personnel file.The employing agency of an employee who files a grievance may place records of disciplinary action in the employee’s personnel file.If any disciplinary action against an employee is rescinded through the grievance procedures described in this chapter, the agency and the Division of Human Resource Management shall remove the record of the disciplinary action from the employee’s agency personnel file and central personnel file.An agency may maintain a separate grievance file relating to an employee’s grievance, but shall discard the file after three years.
Amended by Chapter 344, 2021 General Session
Procedural Steps to Be Followed by Aggrieved Employee
67-19a-401 - Time limits for submission and advancement of grievance by aggrieved employee — Voluntary termination of employment — Group grievances.
(1) An aggrieved career service employee and the person to whom the grievance is directed may agree in writing to waive or extend grievance steps specified under Subsection 67-19a-402(1), (2), or (3) or the time limits specified for those grievance steps, as outlined in Section 67-19a-402.
(2) Any writing made under Subsection (1) shall be submitted to the administrator.
(3) Except as provided under Subsections (5) and (6), if the employee fails to advance the grievance to the next procedural step within the time limits established in this part: the employee waives the right to advance the grievance or to obtain judicial review of the grievance; andthe grievance is considered to be settled based on the decision made at the last procedural step.
(4) An employee may file a grievance for review under this chapter, except as provided in Subsections (5) and (6), if the employee submits the grievance within 10 working days after: the most recent event giving rise to the grievance; orthe employee has knowledge of the most recent event giving rise to the grievance.
(5) An employee may file with the office a motion for an enlargement of a time limit described in Subsection (4).In determining whether to grant a motion described in Subsection 67-Ch67_19a|(5)], the office shall consider, giving reasonable deference to the employee, whether:the employee filed the motion before the time limit the employee seeks to enlarge; orthe enlargement is necessary to remedy the employee’s excusable neglect.
(6) The provisions of Subsections (3) and (4) do not apply if the employee meets the requirements for excusable neglect as that term is defined in Section 67-19a-101.
(7) If several employees allege the same grievance, the employees may submit a group grievance by following the procedures and requirements of this chapter.In submitting a group grievance, each aggrieved employee shall sign the grievance.The administrator may not treat a group grievance as a class action, but may select one aggrieved employee’s grievance and address that grievance as a test case.
Amended by Chapter 209, 2022 General Session
67-19a-402 - Procedural steps to be followed by aggrieved employee.
(1) Subject to the provisions and levels of procedure provided in Section 67-19a-302, a career service employee who has a grievance shall submit the grievance in writing to:the employee’s supervisor; andthe administrator.Within five working days after receiving a written grievance, the employee’s supervisor may issue a written decision on the grievance.
(2) If the employee’s supervisor fails to respond to the grievance within five working days or if the aggrieved employee is dissatisfied with the supervisor’s written decision, the employee may advance the written grievance to the employee’s agency or division director within 10 working days after the expiration of the period for response or receipt of the written decision, whichever is first.Within five working days after receiving the written grievance, the employee’s agency or division director may issue a written response to the grievance stating the decision and the reasons for the decision.
(3) If the employee’s agency or division director fails to respond to the grievance within five working days after its submission, or if the aggrieved employee is dissatisfied with the agency or division director’s written decision, the employee may advance the written grievance to the employee’s department head within 10 working days after the expiration of the period for decision or receipt of the written decision, whichever is first.Within 10 working days after the employee’s written grievance is submitted, the department head may issue a written response to the grievance stating the decision and the reasons for the decision.The decision of the department head is final in all matters except those matters that the office may review under the authority of Part 3, Grievance Procedures.
(4) If the written grievance submitted to the employee’s department head meets the subject matter requirements of Section 67-19a-202 and if the employee’s department head fails to respond to the grievance within 10 working days after submission, or if the aggrieved employee is dissatisfied with the department head’s written decision, the employee may advance the written grievance to the administrator within 10 working days after the expiration of the period for decision or receipt of the written decision, whichever is first.
Amended by Chapter 390, 2018 General Session
67-19a-402.5 - Procedural steps to be followed by reporting employee alleging retaliatory action.
.5(1) A reporting employee who desires to assert an administrative grievance of retaliatory action: shall submit the grievance in writing within 30 days after the day on which the retaliatory action occurs;is not required to comply with Section 63G-7-402 to file the grievance; andis subject to the provisions of Section 67-21-4.
.5(2) When a reporting employee files a grievance with the administrator under Subsection (1), the administrator shall initially determine:whether the reporting employee is entitled, under this chapter and Chapter 21, Utah Protection of Public Employees Act, to bring the grievance and use the grievance procedure;whether the office has authority to review the grievance;whether, if the alleged grievance were found to be true, the reporting employee would be entitled to relief under Subsection 67-21-3.5(2); andwhether the reporting employee has been directly harmed.To make the determinations described in Subsection (2)(a), the administrator may:hold an initial hearing, where the parties may present oral arguments, written arguments, or both; orconduct an administrative review of the grievance.
.5(3) If the administrator holds an initial hearing, the administrator shall issue a written decision within 15 days after the day on which the hearing is adjourned.If the administrator chooses to conduct an administrative review of the grievance, the administrator shall issue the written decision within 15 days after the day on which the administrator receives the grievance.
.5(4) If the administrator determines the office has authority to review the grievance, the administrator shall provide for an evidentiary hearing in accordance with Section 67-19a-404.The administrator may dismiss the grievance, without holding a hearing or taking evidence, if the administrator:finds that, even if the alleged grievance were found to be true, the reporting employee would not be entitled to relief under Subsection 67-21-3.5(2); andprovides the administrator’s findings, in writing, to the reporting employee.The office shall comply with Chapter 21, Utah Protection of Public Employees Act, in taking action under this section.
.5(5) A decision reached by the office in reviewing a retaliatory action grievance from a reporting employee may be appealed directly to the Utah Court of Appeals.
.5(6) Except as provided in Subsection (6)(b), an appellate court may award costs and attorney fees, accrued at the appellate court level, to a prevailing employee.A court may not order the office to pay costs or attorney fees under this section.
Amended by Chapter 390, 2018 General Session
67-19a-403 - Advancement of grievance to administrator — Initial hearing.
(1) At any time after a career service employee submits a written grievance to the administrator under Subsection 67-19a-402(4), the administrator may attempt to settle the grievance informally by conference, conciliation, and persuasion with the employee and the agency.
(2) When an employee advances a grievance to the administrator under Subsection 67-19a-402(4), the administrator shall initially determine:whether the employee is a career service employee and is entitled to use the grievance system;whether the office has authority to review the grievance; andwhether the employee has been directly harmed.In order to make the determinations required by Subsection (2)(a), the administrator may:hold an initial hearing, where the parties may present oral arguments, written arguments, or both; orconduct an administrative review of the file.
(3) If the administrator holds an initial hearing, the administrator shall issue a written decision within 15 days after the hearing is adjourned.If the administrator chooses to conduct an administrative review of the file, the administrator shall issue the written decision within 15 days after the administrator receives the grievance.
Amended by Chapter 249, 2010 General Session
67-19a-404 - Evidentiary hearing.
(1) If the administrator determines that the office has authority to review the grievance, the administrator shall: appoint a hearing officer to adjudicate the grievance; andset a date for the evidentiary hearing that is either:not later than 30 days after the date the administrator determines that the office has authority to review the grievance; orat a date: agreed upon by the parties and the administrator; andnot greater than 150 days after the date the administrator determines that the office has authority to review the grievance.
(2) After the date for the evidentiary hearing has been set, the administrator or assigned hearing officer may grant each party one extension of reasonable length for extraordinary circumstances as determined by the administrator or assigned hearing officer.
(3) Notwithstanding Section 63G-4-205, and in order to accommodate the 150-day time limit, the administrator may only allow a motion for discovery for production of documents, records, and evidence under Utah Rules of Civil Procedure, Rule 34.
Amended by Chapter 249, 2010 General Session
67-19a-405 - Prehearing conference.
(1) The administrator may require the presence of each party, the representatives of each party, and other designated persons at a prehearing conference.
(2) At the conference, the administrator may require the parties to: identify which allegations are admitted and which allegations are denied;submit a joint statement detailing:stipulated facts that are not in dispute;the issues to be decided; andapplicable laws and rules;submit a list of witnesses, exhibits, and papers or other evidence that each party intends to offer as evidence; andconfer in an effort to resolve or settle the grievance.
(3) At the conclusion of the prehearing conference, the administrator may require the parties to prepare a written statement identifying: the items presented or agreed to under Subsection (2); andthe issues remaining to be resolved by the hearing process.
(4) The prehearing conference is informal and is not open to the public or press.
Enacted by Chapter 191, 1989 General Session
67-19a-406 - Procedural steps to be followed by aggrieved employee — Hearing before hearing officer — Evidentiary and procedural rules.
(1) The administrator shall record the hearing and preserve the record.The recording of the proceedings and all exhibits, briefs, motions, and pleadings received by the hearing officer are the official record of the proceeding.
(2) The agency has the burden of proof in all grievances.The agency must prove the agency’s case by substantial evidence.
(3) The hearing officer shall issue a written decision within 20 working days after the hearing is adjourned.If the hearing officer does not issue a decision within 20 working days, the agency that is a party to the grievance is not liable for any claimed back wages or benefits after the date the decision is due.
(4) The hearing officer may: not award attorney fees or costs to either party;close a hearing by complying with the procedures and requirements of Title 52, Chapter 4, Open and Public Meetings Act;seal the file and the evidence produced at the hearing if the evidence raises questions about an employee’s character, professional competence, or physical or mental health;grant continuances according to rule; anddecide a motion, an issue regarding discovery, or another issue in accordance with this chapter.
(5) A hearing officer shall affirm, rescind, or modify agency action.If a hearing officer does not affirm agency action, the hearing officer shall order back pay and back benefits that the grievant would have received without the agency action.An order under Subsection (5)(b)(i) shall include: reimbursement to the grievant for premiums that the grievant paid for benefits allowed under the Consolidated Omnibus Reconciliation Act of 1985; andan offset for any state paid benefits the grievant receives because of the agency action, including unemployment compensation benefits.In an order under Subsection (5)(b)(i), a hearing officer may not reduce the amount of back pay and benefits awarded a grievant because of income that the grievant earns during the grievance process.
(6) An employee who files a grievance in accordance with this chapter may appeal a decision of the office directly to the Utah Court of Appeals in accordance with Title 63G, Chapter 4, Administrative Procedures Act.
Amended by Chapter 127, 2018 General Session
Abusive Conduct Administrative Review
67-19a-501 - Procedural steps to be followed in an administrative review of an abusive conduct investigation.
(1) An employee of a state executive branch agency, as defined in Section 67-26-102, may, under Subsection 67-19a-202(3), initiate an administrative review of the findings of an abusive conduct investigation within 10 days after the day on which the employee receives notification of the investigative findings.
(2) An employee bringing an administrative review of the findings described in Subsection (1) may file the request for the administrative review directly with the office.The request for administrative review may describe the reasons for the administrative review and include any submissions the employee desires to submit.
(3) When an employee initiates the review described in Subsection (2) with the office:the role of the administrative review is to review and rule upon the findings of the abusive conduct investigation; andan evidentiary hearing is not required.The division shall make the abusive conduct investigative file available for the office’s in camera review.The office may:request additional relevant documents from the division or the affected employee; andinterview the employee who initiated the administrative review and the investigators who conducted the investigation.
(4) The office may overturn the findings of the abusive conduct investigation if the office determines that:the findings are not reasonable, rational, or sufficiently supported by the evidence; orthe facts on which the findings are based are inaccurate.The office may uphold the findings of the abusive conduct investigation if the office determines that:the findings are reasonable, rational, and sufficiently supported by the evidence; andthe facts on which the findings are based are accurate.
(5) Within 30 days after the day on which an employee initiates an administrative review under this section, the office shall issue a notice stating whether the office upheld or overturned the investigative findings.The office’s determination upon administrative review of the findings resulting from an abusive conduct investigation is final and not subject to appeal.The following are classified as protected under Title 63G, Chapter 2, Government Records Access and Management Act, and any other applicable confidentiality provisions:the request for administrative review and any accompanying documents;documents that any party provides;the contents of the administrative review file; andthe office’s determination.
Amended by Chapter 344, 2021 General Session