POLICY

A. Purpose

Lawrence Berkeley National Laboratory (Berkeley Lab) encourages and facilitates the resolution of employee complaints in a prompt and equitable manner. An employee should first attempt to resolve a complaint with his/her immediate supervisor or divisional HR Center, although this does not extend the deadline for filing a written request for formal review. This policy provides information on filing a formal complaint.

B. Persons Affected

• This policy applies to all non-probationary Career, non-probationary Term, and non-represented Postdoctoral Fellow employees.
• This policy applies to non-represented employees. Represented employees should consult their collective bargaining agreement (CBA).
• This policy does not apply to probationary Career, probationary Term, Faculty, Limited, Visiting Researcher, Rehired Retiree, Graduate Student Research Assistant (GSRA), and Student Assistant employees.
• This policy does not apply to the following non-employees: affiliates, contract workers, and visitors.

C. Exceptions

Request for exceptions that exceed what is allowed under current policy or that are not expressly addressed by current policy are considered exceptions to policy. A request for an exception to policy requires, at minimum, approval by the Chief Human Resources and Diversity Officer (CHRO). Depending on the circumstances, some exceptions may require University of California Office of the President (UCOP) and/or Department of Energy (DOE) approval.

D. Policy Statement

1. It is the policy of Berkeley Lab to encourage and facilitate the resolution of employee complaints in a prompt and equitable manner. An employee should first attempt to resolve a complaint with his/her immediate supervisor. Efforts to resolve the matter informally, however, do not extend the deadline for filing a written request for formal review.
2. Scope
   1. A formal complaint is defined as:
      1. A claim by an individual employee regarding a specific management act that is alleged to have adversely affected the employee's existing terms and conditions of employment, or
      2. A claim by an individual employee that he/she has been adversely affected by a management action in violation of a provision of this Requirements and Policies Manual (RPM) (PUB-201).
   2.  No formal complaint filed under this Employee Complaint Resolution policy may raise or contest any of the following actions or issues:
      1. Classification of a position, salary ranges, or the percent change in the employee’s salary as a result of the annual salary review process or a reclassification.
      2. Management actions that are within the scope and authority of management responsibilities and rights including, but not limited to, hiring decisions or other similar employment-related actions, temporary work deferment and temporary reduction in time decisions, decisions to reorganize and reassign work, funding or not funding projects, or decisions to support a particular research effort.
      3. An employee’s performance evaluation unless the overall rating is less than “Acceptable,” as defined in the then-current performance review process.
      4. As otherwise set forth in the RPM as not being subject to this Employee Complaint Resolution Policy.
   3. Concerns or inquiries regarding the issues listed above in Sections D.2.b.i to D.2.b.iv of this policy may be submitted to the Head of Human Resources for consideration.
   4. The Head of Human Resources will determine whether a complaint is within the scope of this Complaint Resolution Policy. An employee may appeal this decision to the University of California, Office of the President, Office of Employee Relations, which has the final responsibility for determining whether a complaint is within the scope of this policy. An appeal to the UC Office of the President shall include copies of the original grievance and related documents, and shall be received within 20 calendar days of the date of the local decision.
3. Eligibility
   1. The right to submit a formal complaint under this policy is provided to all Career and Term employees covered by the RPM from the beginning of employment, with the following exceptions:

      1. Employees required to serve a probationary period cannot submit a complaint concerning release during their probationary period.

      2. Senior managers whose appointments are "at will" cannot submit a complaint concerning termination of the appointment. See RPM 2.01(F)(3), Laboratory Management.

      3. Employees in Term appointments cannot submit a complaint concerning termination at the end of their appointment.

   2. Employees who are not eligible to file a formal complaint may raise allegations of discrimination and/or allegations of retaliation for participating in the complaint resolution process up to Step II of the formal process.

4. Time Limits
   
   1. Time limitations set forth below are expressed in calendar days unless otherwise noted. The Laboratory's annual winter holiday shutdown period automatically extends the time limit by the length of the shutdown. If the employee complaint is not appealed to the next step of the procedure within the applicable time limits, and an extension has not been agreed to in advance, the complaint will be considered resolved on the basis of the last Laboratory management response and shall be considered ineligible for further appeal.
   2. Issues regarding timeliness of the initial filing of the complaint and any response/action required by the employee or management will be determined by the Head of Human Resources. An employee may appeal this decision to the University of California, Office of the President, Office of Employee Relations, which has the final responsibility for determining whether a complaint is within the time limits of this policy. An appeal to the UC Office of the President shall include copies of the original grievance and related documents, and shall be received within 20 calendar days of the date of the local decision.
5. Informal Review
   
   1. An employee who has a complaint should discuss it with his or her immediate supervisor or the next higher level of management in order to provide a reasonable opportunity to resolve the complaint informally. Various problem-solving options might be used to facilitate informal resolution. The Employee & Labor Relations (ELR) unit of Human Resources can assist employees and supervisors in their efforts to informally resolve problems. Efforts to resolve the dispute informally do not extend the required 30-calendar-day filing date. However, if an informal solution is actively being pursued and it appears that such a solution may resolve the dispute, the time period for appeal to Step I of the formal review process may be extended for an additional 30 calendar days if approved in writing by the Head of Human Resources.
   2. An employee who has a question concerning the interpretation or application of Laboratory or University personnel policies, including those related to employee rights, nondiscrimination, working conditions, or other personnel matters, is encouraged to consult with his or her supervisor, responsible manager, the HR Center, or ELR, and in the case of the Laboratory’s Nondiscrimination Policy, the Manager, Equal Employment Opportunity/Affirmative Action (EEO/AA).
6. Formal Review
   
   1. General Provisions
      1. Representation. An employee may be self-represented or represented by another person at any stage of the formal review of a complaint. The responsible manager may be represented by Laboratory Counsel, the University of California Office of the General Counsel, or otherwise as the Laboratory Counsel deems appropriate.
      2. Retaliation. No employee shall be subject to retaliation for using or participating in the complaint resolution process.
      3. Time Limits. It is the intent of the Laboratory to complete the complaint resolution process in a timely manner. However, when circumstances warrant, the time limits may be extended by the Head of Human Resources. It is the intent that the process be completed through Step II within 60 calendar days, and the appeal be completed through Step III within the time frame stated below. The process to select the Hearing Officer in Step III should be accomplished within 30 calendar days of the appeal to Step III. The Laboratory and the employee or the employee's representative should secure the earliest practicable hearing date from the Hearing Officer. The Hearing Officer will be requested to issue his/her decision or report within 30 calendar days of the close of the hearing. When the Hearing Officer’s report is advisory to the Director, the Director should issue the final decision within 30 calendar days of receipt of the report and recommendation (see Section D.6.d, Step III, Appeal to a Hearing of this policy). As stated above, once a complaint has been filed on a timely basis, the Head of Human Resources may extend any subsequent time limit in the complaint resolution process. Such extension(s) must (1) be in writing, (2) include the reason for the extension, and (3) be given to the employee and the responsible manager.
      4. Computation of Time Limits. Any time limit, including the original filing time limit that expires on a Saturday, Sunday, administrative holiday, or other nonworking day observed by the Laboratory will be extended to the next scheduled working day.
      5. Pay Status for Time Spent in Complaint Resolution. The responsible manager will approve requests for reasonable time off with pay during scheduled working hours for an employee and/or an employee's representative (if the representative is a Laboratory employee, and such representation is not paid for by the employee filing the complaint or by others) for time spent in informal resolution of a complaint, investigating a complaint, and presenting a grievance complaint at a formal hearing. Time spent by the employee or the representative in the above activities outside scheduled working hours is without pay. Time spent by an employee and/or an employee’s representative in preparing for the various steps of the complaint resolution procedure (e.g., preparation of documents, preparing testimony, investigation) is unpaid. An employee who serves as a witness will be on pay status while testifying at a hearing. In addition, the responsible manager must grant reasonable time off with pay during scheduled working hours to an employee-witness for other meetings related to resolution of an employee complaint; however, an employee-witness's time spent outside of scheduled working hours, other than testifying at a hearing, will be without pay.
      6. Informal Resolution. Informal resolution of a complaint may be agreed to by the employee and responsible manager at any stage of the complaint resolution process.
      7. Review and Appeal. All complaints that are within the scope of this policy are eligible for review through Step I and Step II. Only those complaints listed in Section D.6.d.ii of this policy can be appealed to Step III.
      8. Termination of Complaint Resolution Procedure. If the employee resigns prior to the completion of the complaint resolution procedure, the process ends regardless of the stage. If one or more employees in a complaint resolution procedure terminates voluntarily or resigns prior to the end of the procedure, the process continues only for the remaining employees.
   2. Step I: Appeal to the Responsible Manager
      1. Complaints that are within the scope of this policy must be submitted in writing to the Manager, HR-ELR, for transmittal to the responsible manager. The complaint must be filed within 30 calendar days of the date on which the employee knew or could reasonably be expected to have known of the event or action that gave rise to the complaint, or within 30 calendar days after the last day of employment, whichever occurs first. A former employee separated by layoff who is eligible for recall or preference for reemployment  may file a complaint alleging violations of the recall or preference for reemployment provisions within 30 calendar days after the date on which the employee knew or could be reasonably expected to know of the alleged violation.
      2. When a complaint alleges sexual harassment, the complainant may elect to substitute the University of California Procedures for Responding to Complaints of Sexual Harassment (RPM 2.05[E], University of California Procedures for Responding to Reports of Sexual Harassment) to attempt to resolve the issue. The complaint is considered to be filed in a timely manner if it is filed within 30 calendar days after the alleged incident or action occurred. If the attempt to resolve the complaint is unsuccessful, the complainant may proceed to Step II of this procedure.
      3. The written complaint must describe the specific actions that are requested for review, the specific provisions of the RPM alleged to have been violated, the manner in which it was violated, how the employee was adversely affected, and the specific remedy requested.
      4. The responsible manager must provide a written decision to the employee within 21 calendar days unless the deadline is extended by the Head of Human Resources under the conditions stated in Section D.4, Time Limits, of this policy.
      5. If the responsible manager does not respond within the stated deadline or extension thereof, or the employee does not agree with the decision, the employee has the right to appeal to Step II of the Complaint Resolution Policy.
   3. Step II: Appeal to the Associate Laboratory Director for Operations
      1. If the employee elects to appeal the responsible manager's decision, the employee must submit a written appeal to the Manager, HR-ELR, within 15 calendar days of receipt of the responsible manager's decision or the date the decision was due. The appeal must specify the aspects of the complaint that have not been resolved by the decision of the responsible manager, and specifically state the issues that are being appealed in Step II.
      2. If the issues under review are not eligible for appeal to Step III, the Associate Laboratory Director for Operations (ALDO) or the employee may request an Independent Party Reviewer (IPR). The IPR will conduct fact-finding and, if asked by the ALDO, make recommendations regarding the complaint and requested remedies. The IPR is selected by the ALDO. The employee and the management representative shall have an opportunity to meet with and present information directly to the IPR. The IPR may engage in further review and investigation as he/she deems necessary and appropriate. After the conclusion of the IPR review, the IPR will submit his/her report to the ALDO. The ALDO will consider the report of the IPR and other relevant information, and will issue a written decision to the employee and the responsible manager. The decision of the ALDO is final for all complaints that are ineligible for Step III.
      3. An employee may elect to have an IPR review his/her complaint even though it is eligible for appeal to Step III. If this occurs, the decision of the ALDO is final, and the complaint cannot be appealed to Step III, as set forth in Section D.6.d.ii.1, Final and Binding Hearing, below.
      4. If a complaint filed under this section involves an action initiated by the ALDO, the Deputy Director will have the authority for the Step II process and any required appointments or decisions. If the complaint involves an action taken by the Laboratory Director, it will be forwarded to the University of California, Office of the President, for final resolution.
   4. Step III: Appeal to a Hearing
      1. If the employee elects to appeal the ALDO’s decision for matters that are eligible for appeal to Step III, the employee shall submit a written appeal to the Manager, HR-ELR, within 15 calendar days of receipt of the ALDO’s decision. The appeal shall specify the aspects of the complaint that have not been resolved by the ALDO, and specifically state the issues that are being appealed in Step III of this process.
      2. Complaints not satisfactorily resolved at Step II that allege specific violations of personnel policies listed below may be appealed in writing to the Step III hearing process. The appeal will be heard by a Hearing Officer.
         1. Final and Binding Hearing. The Hearing Officer will render a final and binding decision when the issue reviewed under this policy alleges violations of the following policies:
            
            1. Discriminatory practices as listed in the Nondiscrimination Policy pertaining only to an alleged discriminatory application of a personnel policy listed below in this section: 
               
               1. Hours of work
               2. Overtime
               3. Shift and weekend differential
               4. Holidays
               5. Vacation (except the scheduling of a vacation)
               6. Sick leave
               7. Leave of absence
               8. Corrective action and dismissal as defined in the Corrective Action and Discipline policy
               9. Medical separation 
               10. Layoff or reduction in time for Career employees pertaining only to the notice, order of layoff, recall, or preference for reemployment provisions in the Reduction in Force policy. The management decision to implement a layoff or reduction in time is not subject to any provisions of this complaint resolution policy.
               11. Retaliation for utilizing the complaint resolution process.
         2. Advisory Hearings. The Hearing Officer will render an advisory decision and recommendation to the Laboratory Director, who will render a final and binding decision for the following two issues:
            
            1. Harassment as defined in the Nondiscrimination Policy and the University of California Policy on Sexual Harassment (Anti-Harassment Policy).
            2. Retaliation for filing an allegation of improper government activity (whistleblower), filing an allegation of discrimination or harassment, or filing an allegation of scientific misconduct. See also the Whistleblower Protection policy.
      3. Hearing Process
         1. Selection of the Hearing Officer
            
            1. The Laboratory will maintain a list of professional non-University hearing officers. These hearing officers will hear all Step III appeals. The cost of these Laboratory/University hearing officers will be borne by the Laboratory. The responsible manager and the employee or their representative(s) will select a hearing officer by striking names of available members on the list until a hearing officer is selected. The determination of who strikes first will be determined by the toss of a coin.
            2. As an alternative to the procedures set forth directly above, the employee may elect, in writing, that the hearing be heard by a non-University hearing officer selected from a list other than that maintained by the Laboratory. The Laboratory shall obtain a list of five names of prospective non-University hearing officers from the Federal Mediation and Conciliation Service (FMCS) who (1) are National Academy of Arbitrators (NAA) members and (2) reside in or geographically serve the Berkeley Lab locale. Using this list, the responsible manager and the employee or their representative(s) will select a hearing officer by striking names of available members on the list until a hearing officer is selected. The determination of who strikes first will be determined by the toss of a coin. 
               
               The election of this alternative non-University hearing officer selection procedure may result in a cost to the employee. If the issue is one in which the decision of the hearing officer is final and binding, the fees will be borne equally by the Laboratory and the employee. If the issue is one in which the hearing officer makes a recommendation to the Laboratory Director:
               1. The fees and costs of the hearing officer will be borne equally by the Laboratory and the employee if the Laboratory Director accepts the recommended decision of the hearing officer.
               2. If the Laboratory Director rejects or substantively changes a recommended decision of a hearing officer under this section, the fee will be borne by the Laboratory.
         2. The hearing process provides an opportunity for the employee and the responsible manager or their representatives to examine witnesses and submit relevant evidence. See  Section D.6.a.i, Representation, of this policy. Each party will provide the other with the documents and other materials that it intends to use at the hearing, and the names of all witnesses who are to be called to testify at the hearing. This material-and-witness list should be provided at least 14 calendar days before the hearing.
         3. The hearing will be closed to nonparticipants. 
         4. The hearing will be recorded unless a stenographic record is prepared. A copy of the recording tapes will be given to the employee. Either party may make provisions for a stenographic record of the hearing, subject to payment of the cost, or the parties may agree in advance to share the expense of a stenographic record.
      4. Responsibility and Authority of the Hearing Officer
         
         1. The Hearing Officer will:
            1. Identify the issues submitted in the original written complaint for hearing.
            2. Conduct a hearing to determine the facts and whether the management action that resulted in the complaint was in violation of Laboratory policies or procedures, or if the complaint involves corrective action or dismissal, and whether the management action was reasonable under the circumstances.
            3. Submit a written hearing report. If the nature of the decision is advisory, the report will be provided to the Laboratory Director. If the decision is final and binding, the report will be provided to the employee filing the complaint, the manager, HR-ELR, and the Responsible Manager.
         2. The hearing report will include a description of the following:
            
            1. Each incident or management action that resulted in the complaint.
            2. Each issue under submission.
            3. The positions of the parties.
            4. The findings of fact and any policy violations. Findings of fact must be supported by the evidence, and the decision, whether final and binding or recommended, must be supported by the findings.
         3. The Hearing Officer will have authority to issue a final and binding decision for complaints related to issues listed in  Section D.6.d.ii.1, Final and Binding Hearing, of this policy. For all other complaints, the Hearing Officer will have authority to issue an advisory recommendation only. The advisory recommendation will be made to the Laboratory Director.
         4. The Hearing Officer shall have no authority to depart from, or otherwise modify, Laboratory or University personnel policies.
         5. If the management action under review is determined to be in violation of Laboratory policy or if the corrective action or dismissal is determined not to be reasonable under the circumstances, the remedy shall not exceed restoring to the employee the pay, benefits, or rights lost as a result of the action, less any income earned from any other source or any other employment.
         6. Except by mutual agreement of both parties, no new issues may be added to a complaint or introduced at a hearing that were not included in the original written complaint.
         7. The resolution of an employee complaint must be in accordance with Laboratory policies. Any decision, whether recommended or final and binding, that involves an exception to Laboratory or University policy requires the prior approval of the Office of the President of the University of California.
      5. Decision of the Laboratory Director. A recommended decision of a hearing officer will be accepted, rejected, or modified by the Laboratory Director within 15 calendar days after receipt. The decision of the Laboratory Director is final and binding for those issues as identified in  Section D.6.d.ii.2, Advisory Hearings. The decision will be made in writing and forwarded to the parties with a copy of the hearing officer’s report.
      6. General Hearing Provisions
         1. Similar Complaints. When agreed upon by the employees and Laboratory before the hearing, individual complaints of two or more employees may be included in one hearing when the complaints were caused by the same action. All complaints from one employee that relate to a single incident or issue must be included in one hearing.
         2. Jurisdiction. An employee is subject to the hearing procedures of the campus or facility where the action that resulted in the complaint occurred, or as approved by the University of California, Office of the President, Office of Employee Relations.
         3. Facilities. HR-ELR will be responsible for making all physical arrangements, including tape recording of the hearing, providing staff and clerical assistance to the hearing officer as required, ensuring that all parties are advised of procedural requirements, and keeping the calendar record of the complaint process.
         4. HR-ELR will receive copies of all reports and documents pertaining to the complaint and will be the official custodian of the complete files and tapes.

E. Roles and Responsibilities

F. Definitions/Acronyms

G. Recordkeeping Requirements

None

H. Implementing Documents

Employee Complaint Resolution Review Form

I. Contact Information

For information regarding this policy, contact your Division's Human Resources Center. Feedback on HR policies or procedures is welcomed. Send comments to [email protected].

J. Revision History

DOCUMENT INFORMATION

Source Requirements Documents

• University of California Personnel Policies for Staff Members (PPSM) 62, Corrective Action-Professional and Support Staff
• University of California Personnel Policies for Staff Members (PPSM) 63,Investigatory Leave
• University of California Personnel Policies for Staff Members (PPSM) 64, Termination of Career Employees-Professional and Support Staff

Implementing Documents

None