Division of State Human Resources

Grievance and Appeal Process

References

 

 Topics

 

Appeals to the State Human Resources Director

After a covered employee has completed the internal grievance process with their agency, or the time for the agency to respond to the grievance has passed, the covered employee may file an appeal with the State Human Resources Director. 

The State Human Resources Director conducts a review of the appeal after assembling all records, reports, and documentation of the earlier proceedings on the grievance. The State Human Resources Director would then determine whether or not the appeal has met jurisdictional requirements. Generally, if an appeal meets jurisdictional requirements the appeal is assigned to a mediator and forwarded to either the State Employee Grievance Committee or an Arbitrator.  In rare cases an appeal may be remanded to the agency for further action. Appeals that do not meet jurisdictional requirements are denied. 

Employees may choose to retain legal counsel during the grievance and appeal process. If a representative is retained, however, it will be at the employee’s expense.

 

Mediation

Mediation is mandatory according to the State Employee Grievance Procedure Act and seeks to reach a mutually acceptable agreement between the parties before a final decision is required by the State Employee Grievance Committee or an Arbitrator. Mediation is a process whereby a neutral third party seeks to facilitate an agreement between two parties who have a disagreement. Mediation conferences are confidential and participants are limited to no more than three representatives, including legal counsel and the covered employee, for each party. Mediation is not an evidentiary hearing and does not involve fact-finding by the mediator, therefore, witnesses are not included in the process.

 

State Employee Grievance Committee

An Appeal in the Grievance Committee Process Flowchart

Appeals that have met jurisdictional requirements for the following adverse employment actions are forwarded to the State Employee Grievance Committee for a hearing:

  • Terminations;
  • Salary decreases based on performance;
  • Demotions;
  • Suspensions for more than ten days; and
  • Reductions in force when the State Human Resources Director determines there is a material issue of fact regarding inconsistent or improper application of the agency's reduction in force plan or policy.

 

The Grievance Committee can sustain, reject, or modify an agency’s decision. Committee decisions are governed by S.C. Code Section 8-17-340(E). The Committee must issue its final decision in writing within 20 calendar days of the conclusion of the hearing.

If the Grievance Committee reinstates an employee, the employee returns to his former position provided that the position has not already been filled. If the employee's former position has been filled, the employee would be reinstated to a comparable position within the agency.

 

Documents for the Grievance Committee Process:

 

Arbitration

An Appeal in the Mediation Arbitration Process Flowchart

Appeals that have met jurisdictional requirements for the following adverse employment actions are forwarded to a Mediator-Arbitrator:

  • Lack of promotional consideration;
  • Punitive reclassifications;
  • Suspensions for ten days or less; and
  • Involuntary reassignments in excess of 30 miles.

An arbitrator may uphold or overturn an agency’s decision. In order for an arbitrator to overturn an agency’s disciplinary action, the appellant must demonstrate that the agency’s decision to administer the disciplinary action was unreasonable. The arbitrator must issue a final decision within 45 calendar days after the initial mediation conference. Under extenuating circumstances, the State Human Resources Director may extend this 45-day timeframe.

Documents for the Mediation-Arbitration Process:

  

Reconsiderations and Administrative Law Court Appeals

Denials

If an employee’s appeal is denied they may request reconsideration of the denial from the State Human Resources Director. This request must be made in writing to the State Human Resources Director and submitted within 30 calendar days of the employee’s receipt of the denial. 

The employee may also appeal the State Human Resource Director’s denial to the Administrative Law Court. This appeal must be initiated within 30 calendar days of receipt of the initial denial or the receipt of the response to a request for reconsideration, if applicable. Employees are not required to seek reconsideration prior to filing an appeal with the Administrative Law Court.

For additional information concerning appeals to the Administrative Law Court please refer to the Court’s website: http://www.scalc.net/

 

Committee Decisions and Arbitrator Decisions

An employee or agency may ask the State Employee Grievance Committee or Arbitrator to reconsider their decision within 30 days from receipt of the decision. If the employee or agency requests reconsideration and the Committee or Arbitrator upholds their decision, the employee or agency may, within 30 days from receipt of the reconsideration decision, appeal directly to the Administrative Law Court.  Employees and agencies are not required to seek reconsideration prior to filing an appeal with the Administrative Law Court.

An agency must seek approval in order to appeal to the Administrative Law Court. Please contact the Division of State Human Resources' Alternative Dispute Resolution Program for assistance.

For additional information concerning appeals to the Administrative Law Court please refer to the Court’s website: http://www.scalc.net/

 

Additional Information Concerning the State Employee Grievance Procedure Process

Employees covered by and exempted from the State Employee Grievance Procedure Act
  • Generally, state employees in Full-Time Equivalent (FTE) positions who have successfully completed a probationary period attain grievance rights and are considered to be covered by the provisions of the State Employee Grievance Procedure Act. This includes employees in classified and unclassified positions. The Act, however, does exempt certain employees from its provisions as noted in the S.C. Code Section 8-17-370.

  • Faculty and academic personnel at four-year post-secondary educational institutions, including their branch campuses, are exempt from the provisions of the State Employee Grievance Procedure Act according to S.C. Code Section 8-17-370. However, S.C. Code Section 8-17-370 requires these institutions to have a separate grievance procedure for faculty and academic personnel.

  • Deputy directors who meet all of the following requirements are exempt from the State Employee Grievance Procedure Act:

  1. Appointed under the provisions of S.C. Code Section 1-30-10(E) governing restructured agencies;

  2. Oversee a division of a restructured agency; and

  3. Report directly to the agency head.

  • When an employee moves from an uncovered position to a covered position, the employee must successfully complete a probationary period before attaining grievance rights.

 

Agency Grievance Procedure
  •  A covered employee must file a grievance in writing with the agency in accordance with the agency’s grievance policy. This grievance must be submitted in writing within 14 calendar days of the effective date of the adverse action or when the employee receives notification of the action, whichever is later. A grievance cannot be filed prior to the effective date of the adverse action.

  • An agency should process an employee's grievance within 45 calendar days after the employee files the grievance. If the agency fails to make a final decision within 45 calendar days, it is considered an adverse decision and the covered employee may appeal to the State Human Resources Director. If the agency does not make a final decision within 45 calendar days the agency should continue its internal grievance process and render a final decision even if the employee submits an appeal to the State Human Resources Director.

 

State Appeal Process – General Information
  • An appeal cannot be filled prior to the 45 calendar day time frame for an agency to complete its process.

  • According to the State Employee Grievance Procedure Act, an employee may file an appeal in writing either within 10 calendar days of receipt of the agency's final decision or within 55 calendar days after filing the grievance within the agency, whichever is later.

  • The employee must submit a written request to the State Human Resources Director in order to initiate an appeal. Employees may complete a State Employee Grievance Procedure State Appeal Form.

  • When an appeal is received, a letter is sent to the employee confirming receipt of the appeal. In addition, a request is sent to the employing agency to provide documents relevant to the appeal. These documents should be submitted within fifteen calendar days of the request and should include the following:

  • a brief summary of the agency’s position;

  • copies of any correspondence issued to the employee related to the date of action and documentation of the date the employee was informed of the action. For example – the employee’s termination letter;

  • a brief list of the appellant’s employment record;

  • copies of the employee’s performance appraisals if applicable;

  • applicable policies;

  • copies of the documents the employee submitted as part of the grievance process including the initial grievance and the date the grievance was received; and

  • copies of all agency responses issued during the grievance process, including the final decision, and the date the final decision was received.

These documents are reviewed, along with the information submitted by the employee, to determine if an appeal meets jurisdictional requirements. Generally, if the appeal meets jurisdictional requirements it is referred to a mediator for mandatory mediation. In rare cases the appeal may be remanded back to the agency for further processing. If the appeal does not meet jurisdictional requirements the appeal is denied.

 

Additional Information
  • When an employee attends a conference or hearing associated with a grievance or an appeal in an official capacity, he is not required to use leave since attendance is considered to be a part of the employee's job assignment.

 

THE LANGUAGE USED IN THIS DOCUMENT DOES NOT CREATE AN EMPLOYMENT CONTRACT BETWEEN THE EMPLOYEE AND THE AGENCY. THIS DOCUMENT DOES NOT CREATE ANY CONTRACTUAL RIGHTS OR ENTITLEMENTS. THE AGENCY RESERVES THE RIGHT TO REVISE THE CONTENT OF THIS DOCUMENT, IN WHOLE OR IN PART. NO PROMISES OR ASSURANCES, WHETHER WRITTEN OR ORAL, WHICH ARE CONTRARY TO OR INCONSISTENT WITH THE TERMS OF THIS PARAGRAPH CREATE ANY CONTRACT OF EMPLOYMENT.