§2.05
Management/Employee Relations

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Rev. 03/13

NOTE: The policies and procedures contained in Sections 2.05(E), (J), and (K) are reproduced exactly as they appear in the corresponding University of California Policies and Procedures and, consequently, use the UC numbering system.

  1. Areas of Responsibility
    1. Responsibilities of Managers/Supervisors
    2. Responsibilities of Employees
  2. Early Problem Resolution
    1. Employees and Supervisors
    2. Labor Employee Relations
  3. Corrective Action and Dismissal
    1. Policy
    2. Documentation
    3. Authority to Take Corrective Action
    4. Investigatory Leave
    5. Written Warnings
    6. Corrective Action Other Than Written Warnings and Dismissals
    7. Dismissal of Nonprobationary Career and Term Employees
  4. Employee Complaint Resolution
    1. Policy
    2. Scope
    3. Eligibility
    4. Time Limits
    5. Informal Review
    6. Formal Review
  5. University of California Procedures for Responding to Reports of Sexual Harassment
    1. Local Sexual Harassment Resources
    2. Procedures for Reporting and Responding to Reports of Sexual Harassment
    3. Complaints or Grievances Involving Allegations of Sexual Harassment
    4. Remedies and Referral to Disciplinary Procedures
    5. Privacy
    6. Confidentiality of Reports of Sexual Harassment
    7. Retention of Records Regarding Reports of Sexual Harassment
  6. Violence in the Workplace
    1. Policy
    2. Crisis Action Team
    3. Immediate Assistance
  7. Employee Assistance Program (Note: This section was deleted on 6/7/2011. Information about the Employee Assistance Program is available here.)
  8. Reasonable Accommodation (Note: Reasonable Accommodation policy has been moved to §2.01(D).)
  9. Research Misconduct
  10. Whistleblower Policy – Reporting and Investigating Allegations of Suspected Improper Governmental Activities
  11. Whistleblower Protection
  12. Unauthorized Absences and Job Abandonment

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A. AREAS OF RESPONSIBILITY

Managers and supervisors are responsible for determining and effecting appropriate Laboratory goals and objectives. Managers, supervisors, and employees are expected to work together to achieve those goals and objectives.

1. Responsibilities of Managers/Supervisors

  1. Developing performance expectations
  2. Assigning work and establishing deadlines
  3. Determining training needs
  4. Evaluating performance
  5. Rewarding achievement
  6. Taking corrective action

2. Responsibilities of Employees

  1. Meeting expectations
  2. Performing assigned tasks capably and on time
  3. Staying current in the skills required for their classification
  4. Keeping their supervisors informed about job-related activities
  5. Complying with the rules of the workplace and conducting themselves appropriately

B. EARLY PROBLEM RESOLUTION

1. Employees and Supervisors

When an employee is concerned about a working condition, job safety, rate of pay, job classification, or other matters pertaining to his or her employment at the Laboratory, that employee should contact his or her supervisor. When an employee seeks such counsel, the supervisor should try to help resolve the problem in a reasonable manner. Supervisors should try to prevent the escalation of employee issues by advising and counseling their employees in the early stages of potential problem situations. See also Paragraph (G) (Employee Assistance Program), below.

2. Labor Employee Relations

When a supervisor or employee has difficulty resolving a work-related problem, the area Human Resources (HR) Center can provide assistance. The staff of the HR Centers, with the support of the Labor Employee Relations (LER) Unit of the Human Resources Department, are qualified to provide assistance resolving these problems. They may:

  1. Provide guidance to employees and/or supervisors on possible methods to solve work-related problems. This guidance is provided with the objective of achieving a solution that is workable and consistent with the satisfactory performance of the duties to which the employee has been or may be assigned.
  2. Provide guidance to supervisors on options that may be taken when an employee's performance or conduct does not improve, consistent with Laboratory and University policy and good employee relations.
  3. Advise employees of their rights when an employee believes that he or she has been treated inappropriately.
  4. Refer employees and supervisors to University or Laboratory employee assistance services.

C. CORRECTIVE ACTION AND DISMISSAL

1. Policy

  1. A corrective action may be initiated when an employee fails to meet employment-related standards of conduct or performance including, but not limited to, inattention to duty; failure to follow directions; unsatisfactory performance; insubordination; absenteeism; tardiness; violation of law or Laboratory/University regulations; dishonesty, theft, or misappropriation of public funds or property; timecard falsification; fighting on the job; acts endangering others; gambling; or possession of firearms or explosives. Corrective action can take the form of a written warning, salary decrease, demotion, suspension without pay, or dismissal.

  2. Oral warnings, Performance Improvement Plans (PIP), and counseling memos are not considered corrective actions.  In addition, they are not subject to the provisions of Paragraph (D) (Employee Complaint Resolution), below.

  3. When corrective action is contemplated for a member of the Professional Research Staff, RPM §2.07 should be reviewed to determine if additional procedures are required.

2. Documentation

Documentation of corrective action should be entered in the employee's personnel file, and copies of such records should be sent to Human Resources–Labor Employee Relations (HR-LER). At the written request of the employee, records of a written warning will be removed from the employee's personnel file if, after two consecutive years, there has been no further conduct or performance of the same or a similar nature.

3. Authority to Take Corrective Action

  1. Responsible Managers
  2. Responsible managers are operations department heads, deputy division directors, and division directors and above (RPM §2.01(F)(3) (Laboratory Management)). Responsible managers, after consultation with HR-LER, may take or authorize corrective action, including dismissal, in accordance with this policy. Supervisors are authorized to issue written warnings. Authorization to take or authorize all other corrective action or dismissal lies exclusively with the responsible manager in consultation with HR-LER.

  3. Supervisor Authority

    1. Written warnings may be issued by a supervisor after consultation with HR-LER.

    2. A supervisor may immediately place an employee on investigatory leave only in those cases where it is desirable and appropriate to have the employee leave the worksite immediately. Appropriate circumstances include, but are not limited to the following: the employee’s continued presence on the job may result in the disruption of operations, may impair the investigation, may result in attempted destruction or sabotage, or may be considered a threat to others or him/herself; or the employee appears visibly impaired as to not being able to continue to perform satisfactorily. (See RPM 2.05(C)(4) (Investigatory Leave)).

    3. A supervisor may not take any other corrective action without prior approval of the responsible manager and consultation with HR-LER.

4. Investigatory Leave   

  1. An employee may be placed on investigatory leave with pay, usually for a period not to exceed 15 calendar days, while a review or investigation is conducted based on alleged actions including, but not limited to, the employee’s continued presence on the job may result in disruption of operations, may impair the investigation, may result in attempted destruction or sabotage, may be considered a threat to others or his/her self, or the employee appears visibly impaired as to not be able to continue to perform satisfactorily.

  2. Except as stated in Paragraph (C)(3)(b)(ii) (Supervisor Authority) above, a decision to place an employee on investigatory leave may only be made by a responsible manager and after consultation with HR-LER. The leave must be confirmed in writing to the employee, normally no later than five calendar days after the effective date of the leave. The notice must include the reasons for the leave and its expected duration.

  3. The decision to place an employee on investigatory leave is not a corrective action. In addition, it is not subject to the provisions of Paragraph (D) (Employee Complaint Resolution).

5. Written Warnings

A written warning is the first step of corrective action. At least one written warning should normally precede any further corrective action, except when corrective action is the result of performance or conduct that an employee knows or reasonably should have known was unsatisfactory. Written warnings must describe: (a) the nature of the offense or deficiency; (b) the method or methods of correction; (c) the probable action to be taken if the offense is repeated or the deficiency persists; and (d) the employee’s right to appeal the written warning under Paragraph (D) (Employee Complaint Resolution).

6. Corrective Action Other Than Written Warnings and Dismissals

  1. Written Notice of Intent to Take Corrective Action Other Than Written Warnings and Dismissals
  2. For corrective action other than written warnings and dismissals, the responsible manager must provide the employee with written notice of intent to take such action before the effective date. This notice must (a) state the intended corrective action, its reason, and the proposed effective date; (b) include a copy of the charges and materials on which the corrective action is based; and (c) state that the employee has the right to respond either orally or in writing within ten calendar days from the date of issuance; and (d) specify to whom the response must be made.

  3. Written Notice of Corrective Action Other Than Written Warnings and Dismissals
  4. After the employee's response or 10 calendar days from the date of issuance (whichever comes first), the employee must be notified in writing of the responsible manager's decision. If the responsible manager determines that corrective action is not appropriate, the responsible manager must inform the employee of this fact and state what other action, if any, will be taken. If the responsible manager determines that the corrective action, or a modification thereof, is appropriate, the employee will be notified of the action, the effective date, and advised of his/her right to appeal the action.

7. Dismissal of Nonprobationary Career and Term Employees

Nonprobationary career and term employees may be dismissed for reasons set forth in Paragraph (C)(1)(a) (Corrective Action and Dismissal/Policy). See RPM §2.21(C) for dismissal of non-career employees. Dismissal is normally preceded by some form of corrective action unless the unsatisfactory performance or misconduct is so serious as to warrant immediate dismissal.

  1. Written Notice of Intent to Dismiss
  2. A written notice of the intent to dismiss must be given to the employee by a responsible manager, and must (1) state the reason for the intended dismissal; (2) include a copy of the charges and materials on which the intent to dismiss is based; (3) state that the employee has the right to respond either orally or in writing within 10 calendar days from date of issuance; (4) specify to whom the response must be made; and (5) specify the proposed effective date of the dismissal, which must be at least 10 calendar days from the date of the notice of intent to dismiss.

  3. Written Notice of Dismissal
  4. After the employee's response or 10 calendar days from date of issuance (whichever comes first), the employee must be notified in writing by the responsible manager of his or her decision. If the responsible manager determines that dismissal is not appropriate, he or she must inform the employee of this fact and state what other action, if any, will be taken. If the responsible manager determines that dismissal is appropriate, the employee will be so notified. The notice must (1) specify the effective date of dismissal, (2) state the reason for dismissal, and (3) state the employee’s right to appeal. If an employee was absent from work without approval during the 10 calendar days for response to the notice of intent or any subsequent days up to and including the day of dismissal, the days absent are without pay.

D. EMPLOYEE COMPLAINT RESOLUTION

1. Policy

It is the policy of the Laboratory 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. An employee may also attempt to resolve a complaint with the assistance of the Ombudsman Program. 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 the Laboratory's Regulations and Procedures Manual (RPM) (LBNL/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.

Concerns or inquiries regarding these issues may be submitted to the Head of Human Resources for consideration.

  1. 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 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

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.

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

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.

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

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. HR-LER 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.

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 HR-LER, and in the case of the Laboratory policy on nondiscrimination (RPM §2.01(B) (Nondiscrimination and Affirmative Action)), 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 Paragraph (D)(6)(d) (Step III: Appeal to a Hearing)), below. 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 Steps I and II. Only those complaints listed in Paragraph (D)(6)(d)(ii), below, 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 Paragraph (D) (Employee Complaint Resolution) must be submitted in writing to the Manager, HR-LER, 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 as provided in RPM §2.21(B)(9) (Reemployment from Layoff) 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 (Paragraph E) 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 Paragraph (D)(6)(a)(iii), above.

    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-LER, 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 Paragraph (D)(6)(d)(ii), 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-LER, 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.
    3. (a) 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 RPM §2.01(B) (Nondiscrimination and Affirmative Action) pertaining only to an alleged discriminatory application of a personnel policy listed below in this section.
      (2) Hours of work
      (3) Overtime
      (4) Shift and weekend differential
      (5) Holidays
      (6) Vacation (except the scheduling of a vacation)
      (7) Sick leave
      (8) Leave of absence
      (9) Corrective action and dismissal as defined in Paragraph (C) (Corrective Action and Dismissal Policy), and the employee had nonprobationary career or term status at the time the complaint was filed.
      (10) Medical separation
      (11) Layoff or reduction in time for career employees pertaining only to the notice, order of layoff, recall, or preference for reemployment provisions in RPM §2.21(B). The management decision to implement a layoff or reduction in time is not subject to any provisions of this complaint resolution policy.
      (12) Retaliation for utilizing the complaint resolution process.

      (b) 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 RPM §2.01(B)(1), 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 RPM §2.05(K) (Protection of Whistleblowers from Retaliation, and Guidelines for Reviewing Complaints (Whistleblower Protection Policy)).

    4. Hearing Process
    5. (a) 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:

      • 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.

      • 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.

      (b) The hearing process provides an opportunity for the employee and the responsible manager or their representatives to examine witnesses and submit relevant evidence. See Paragraph (D)(6)(a)(i) (Representation) above. 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.

      (c) The hearing will be closed to nonparticipants.

      (d) 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.

    6. Responsibility and Authority of the Hearing Officer
    7. (a) 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-LER, and the Responsible Manager.

      (b) 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.

      (c) The Hearing Officer will have authority to issue a final and binding decision for complaints related to issues listed in Paragraph (D)(6)(d)(ii)(a) above. 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.

      (d) The Hearing Officer shall have no authority to depart from, or otherwise modify, Laboratory or University personnel policies.

      (e) 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.

      (f) 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.

      (g) 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.

    8. Decision of the Laboratory Director
    9. 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 Paragraph (D)(6)(d)(ii)((b). The decision will be made in writing and forwarded to the parties with a copy of the hearing officer’s report.

    10. General Hearing Provisions
    11. (a) 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.

      (b) 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.

      (c) Facilities. HR-LER 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.

      (d) HR-LER 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. UNIVERSITY OF CALIFORNIA PROCEDURES FOR RESPONDING TO REPORTS OF SEXUAL HARASSMENT

NOTE: These procedures are reproduced exactly as they appear in the University of California Procedures for Responding to Reports of Sexual Harassment and, consequently, use the UC numbering system.

NOTE: When the following UC procedures refer to Appendix I: University Complaint Resolution and Grievance Procedures, there will also be a link to RPM §2.05(D) (Employee Complaint Resolution). This is the complaint resolution procedure for non-represented Laboratory employees. When the following UC procedures refer to Appendix II: University Disciplinary Procedures, there will also be a link to RPM §2.05(C) (Corrective Action and Dismissal), which is the Corrective Action policy for non-represented Laboratory employees. The policies contained therein are the approved Human Resources policies for Lawrence Berkeley National Laboratory nonrepresented employees. Represented employees should refer to their collective bargaining agreements for applicable policies.

NOTE: Laboratory-specific information may be found here.

The campuses, DOE Laboratories, Medical Centers, the Office of the President, including Agriculture and Natural Resources, and all auxiliary University locations (the locations) shall implement the following procedures for responding to reports of sexual harassment.

The primary purpose of the procedures is to require the locations (1) to offer sexual harassment training and education to all members of the University community and to provide, consistent with California Government Code 12950.1, sexual harassment training and education to each supervisory employee; (2) to provide all members of the University community with a process for reporting sexual harassment in accordance with the policy; and (3) to provide for prompt and effective response to reports of sexual harassment in accordance with the policy.

These procedures also cover reports of retaliation related to reports of sexual harassment. Any exceptions to these procedures must be approved by the Senior Vice President—Business and Finance.

A. Local Sexual Harassment Resources

1. Title IX Compliance Coordinator (Sexual Harassment Officer)

Each location shall designate a Title IX Compliance Coordinator (Sexual Harassment Officer) whose responsibilities include, but may not be limited to, the duties listed below.

  1. Plan and manage the local sexual harassment education and training programs. The programs should include wide dissemination of this policy to the University community; providing educational materials to promote compliance with the policy and familiarity with local reporting procedures; and training University employees responsible for reporting or responding to reports of sexual harassment.
  2. Develop and implement local procedures to provide for prompt and effective response to reports of sexual harassment in accordance with this policy, and submit the local procedures to the Associate Vice President, Human Resources and Benefits for review and approval.
  3. Maintain records of reports of sexual harassment at the location and actions taken in response to reports, including records of investigations, voluntary resolutions, and disciplinary action, as appropriate.
  4. Prepare and submit an annual report to the Office of the President, for submission to The Regents, on sexual harassment complaint activity during the preceding calendar year in a format specified by the Associate Vice President, Human Resources and Benefits.

2. Trained Sexual Harassment Advisors

Local procedures may designate trained individuals other than the Title IX Compliance Coordinator (Sexual Harassment Officer) to serve as additional resources for members of the University community who have questions or concerns regarding behavior that may be sexual harassment.

The names and contact information for the Title IX Compliance Coordinator (Sexual Harassment Officer) and any designated trained sexual harassment advisors shall be posted with the University’s Policy on Sexual Harassment on the location’s Web site and be readily accessible to the University community.

B. Procedures for Reporting and Responding to Reports of Sexual Harassment

1. Making Reports of Sexual Harassment

All members of the University community are encouraged to contact the Title IX Compliance Coordinator (Sexual Harassment Officer) if they observe or encounter conduct that may be subject to the University’s Policy on Sexual Harassment. Reports of sexual harassment may be brought to the Title IX Compliance Coordinator (Sexual Harassment Officer); to a human resources coordinator; or to any manager, supervisor, or other designated employee responsible for responding to reports of sexual harassment. If the person to whom harassment normally would be reported is the individual accused of harassment, reports may be made to another manager, supervisor, human resources coordinator, or designated employee. Managers, supervisors, and designated employees shall be required to notify the Title IX Compliance Coordinator (Sexual Harassment Officer) or other appropriate official designated to review and investigate sexual harassment complaints when a report is received.

Reports of sexual harassment shall be brought as soon as possible after the alleged conduct occurs, optimally within one year. Prompt reporting will enable the University to investigate the facts, determine the issues, and provide an appropriate remedy or disciplinary action. For reports of sexual harassment brought after one year, locations shall respond to reports of sexual harassment to the greatest extent possible, taking into account the amount of time that has passed since the alleged conduct occurred.

2. Options for Resolution

Individuals making reports of sexual harassment shall be informed about options for resolving potential violations of the Policy on Sexual Harassment. These options shall include procedures for Early Resolution, procedures for Formal Investigation, and filing complaints or grievances under applicable University complaint resolution or grievance procedures. Individuals making reports also shall be informed about policies applying to confidentiality of reports under this policy (see F below). Locations shall respond to the greatest extent possible to reports of sexual harassment brought anonymously or brought by third parties not directly involved in the harassment. However, the response to such reports may be limited if information contained in the report cannot be verified by independent facts.

Individuals bringing reports of sexual harassment shall be informed about the range of possible outcomes of the report, including interim protections, remedies for the individual harmed by the harassment, and disciplinary actions that might be taken against the accused as a result of the report, including information about the procedures leading to such outcomes.

An individual who is subjected to retaliation (e.g., threats, intimidation, reprisals, or adverse employment or educational actions) for having made a report of sexual harassment in good faith, who assisted someone with a report of sexual harassment, or who participated in any manner in an investigation or resolution of a report of sexual harassment, may make a report of retaliation under these procedures. The report of retaliation shall be treated as a report of sexual harassment and will be subject to the same procedures.

3. Procedures for Early Resolution

The goal of Early Resolution is to resolve concerns at the earliest stage possible, with the cooperation of all parties involved. Locations are encouraged to utilize Early Resolution options when the parties desire to resolve the situation cooperatively and/or when a Formal Investigation is not likely to lead to a satisfactory outcome. Early Resolution may include an inquiry into the facts, but typically does not include a formal investigation. Means for Early Resolution shall be flexible and encompass a full range of possible appropriate outcomes. Early Resolution includes options such as mediating an agreement between the parties, separating the parties, referring the parties to counseling programs, negotiating an agreement for disciplinary action, conducting targeted educational and training programs, or providing remedies for the individual harmed by the harassment. Early Resolution also includes options such as discussions with the parties, making recommendations for resolution, and conducting a follow-up review after a period of time to assure that the resolution has been implemented effectively. Early Resolution may be appropriate for responding to anonymous reports and/or third-party reports. Steps taken to encourage Early Resolution and agreements reached through early resolution efforts should be documented.

While the University encourages early resolution of a complaint, the University does not require that parties participate in Early Resolution prior to the University’s decision to initiate a formal investigation. Some reports of sexual harassment may not be appropriate for early resolution, but may require a formal investigation at the discretion of the Title IX Compliance Coordinator (Sexual Harassment Officer) or other appropriate official designated to review and investigate sexual harassment complaints.

4. Procedures for Formal Investigation

In response to reports of sexual harassment in cases where Early Resolution is inappropriate (such as when the facts are in dispute in reports of serious misconduct, or when reports involve individuals with a pattern of inappropriate behavior, or allege criminal acts such as stalking, sexual assault, or physical assault) or in cases where Early Resolution is unsuccessful, the location may conduct a Formal Investigation. In such cases, the individual making the report shall be encouraged to file a written request for Formal Investigation. The wishes of the individual making the request shall be considered, but are not determinative, in the decision to initiate a Formal Investigation of a report of sexual harassment. In cases where there is no written request, the Title IX Compliance Coordinator (Sexual Harassment Officer) or other appropriate official designated to review and investigate sexual harassment complaints, in consultation with the administration, may initiate a Formal Investigation after making a preliminary inquiry into the facts.

Formal Investigation of reports of sexual harassment shall incorporate the following standards:

  1. The individual(s) accused of conduct violating the Policy on Sexual Harassment shall be provided a copy of the written request for Formal Investigation or otherwise given a full and complete written statement of the allegations, and a copy of the Policy on Sexual Harassment and Procedures for Responding to Reports of Sexual Harassment.
  2. The individual(s) conducting the investigation shall be familiar with the Policy on Sexual Harassment and have training or experience in conducting investigations.
  3. The investigation generally shall include interviews with the parties if available, interviews with other witnesses as needed, and a review of relevant documents as appropriate. Disclosure of facts to parties and witnesses shall be limited to what is reasonably necessary to conduct a fair and thorough investigation. Participants in an investigation shall be advised that maintaining confidentiality is essential to protect the integrity of the investigation.
  4. Upon request, the complainant and the accused may each have a representative present when he or she is interviewed. Other witnesses may have a representative present at the discretion of the investigator or as required by applicable University policy or collective bargaining agreement.
  5. At any time during the investigation, the investigator may recommend that interim protections or remedies for the complainant or witnesses be provided by appropriate University officials. These protections or remedies may include separating the parties, placing limitations on contact between the parties, or making alternative working or student housing arrangements. Failure to comply with the terms of interim protections may be considered a separate violation of the Policy on Sexual Harassment.
  6. The investigation shall be completed as promptly as possible and in most cases within 60 working days of the date the request for formal investigation was filed. This deadline may be extended on approval by a designated University official.
  7. Generally, an investigation should result in a written report that at a minimum includes a statement of the allegations and issues, the positions of the parties, a summary of the evidence, findings of fact, and a determination by the investigator as to whether University policy has been violated. The report also may contain a recommendation for actions to resolve the complaint, including educational programs, remedies for the complainant, and a referral to disciplinary procedures as appropriate. The report shall be submitted to a designated University official with authority to implement the actions necessary to resolve the complaint. The report may be used as evidence in other related procedures, such as subsequent complaints, grievances and/or disciplinary actions.
  8. The complainant and the accused shall be informed promptly in writing when the investigation is completed. The complainant shall be informed if there were findings made that the policy was or was not violated and of actions taken to resolve the complaint, if any, that are directly related to the complainant, such as an order that the accused not contact the complainant. In accordance with University policies protecting individuals’ privacy, the complainant may generally be notified that the matter has been referred for disciplinary action, but shall not be informed of the details of the recommended disciplinary action without the consent of the accused.
  9. The complainant and the accused may request a copy of the investigative report pursuant to University policy governing privacy and access to personal information. However, the report shall be redacted to protect the privacy of personal and confidential information regarding all individuals other than the individual requesting the report in accordance with University policy.

C. Complaints or Grievances Involving Allegations of Sexual Harassment

An individual who believes he or she has been subjected to sexual harassment may file a complaint or grievance pursuant to the applicable complaint resolution or grievance procedure listed in Appendix I: University Complaint Resolution and Grievance Procedures. Such complaint or grievance may be filed either instead of or in addition to making a report of sexual harassment to the Title IX Compliance Coordinator (Sexual Harassment Officer) or other appropriate official designated to review and investigate sexual harassment complaints under this policy. A complaint or grievance alleging sexual harassment must meet all the requirements under the applicable complaint resolution or grievance procedure, including time limits for filing.

If a complaint or grievance alleging sexual harassment is filed in addition to a report made to the Title IX Compliance Coordinator (Sexual Harassment Officer) or other appropriate official designated to review and investigate sexual harassment complaints under this policy, the complaint or grievance shall be held in abeyance subject to the requirements of any applicable complaint resolution or grievance procedure, pending the outcome of the Early Resolution or Formal Investigation procedures. If the individual wishes to proceed with the complaint or grievance, the Early Resolution or Formal Investigation shall constitute the first step or steps of the applicable complaint resolution or grievance procedure.

An individual who has made a report of sexual harassment also may file a complaint or grievance alleging that the actions taken in response to the report of sexual harassment did not follow University policy. Such a complaint or grievance may not be filed to address a disciplinary sanction imposed upon the accused. Any complaint or grievance regarding the resolution of a report of sexual harassment under this procedure must be filed in a timely manner. The time period for filing begins on the date the individual was notified of the outcome of the sexual harassment investigation or other resolution process pursuant to this policy, and/or of the actions taken by the administration in response to the report of sexual harassment, whichever is later.

D. Remedies and Referral to Disciplinary Procedures

Findings of violations of the Policy on Sexual Harassment may be considered in determining remedies for individuals harmed by the sexual harassment and shall be referred to applicable local disciplinary procedures (Appendix II: University Disciplinary Procedures). Procedures under this policy shall be coordinated with applicable local complaint resolution, grievance, and disciplinary procedures to avoid duplication in the fact-finding process whenever possible. Violations of the policy may include engaging in sexual harassment, retaliating against a complainant reporting sexual harassment, violating interim protections, and filing intentionally false charges of sexual harassment. Investigative reports made pursuant to this policy may be used as evidence in subsequent complaint resolution, grievance, and disciplinary proceedings as permitted by the applicable procedures.

E. Privacy

The University shall protect the privacy of individuals involved in a report of sexual harassment to the extent required by law and University policy. A report of sexual harassment may result in the gathering of extremely sensitive information about individuals in the University community. While such information is considered confidential, University policy regarding access to public records and disclosure of personal information may require disclosure of certain information concerning a report of sexual harassment. In such cases, every effort shall be made to redact the records in order to protect the privacy of individuals. An individual who has made a report of sexual harassment may be advised of sanctions imposed against the accused when the individual needs to be aware of the sanction in order for it to be fully effective (such as restrictions on communication or contact with the individual who made the report). However, information regarding disciplinary action taken against the accused shall not be disclosed without the accused’s consent, unless it is necessary to ensure compliance with the action or the safety of individuals.

F. Confidentiality of Reports of Sexual Harassment

Each location shall identify confidential resources with whom members of the University community can consult for advice and information regarding making a report of sexual harassment. These resources provide individuals who may be interested in bringing a report of sexual harassment with a safe place to discuss their concerns and learn about the procedures and potential outcomes involved. These resources shall be posted on the location’s website and prominently displayed in common areas. Confidential resources include campus ombudspersons and/or licensed counselors in employee assistance programs or student health services. Individuals who consult with confidential resources shall be advised that their discussions in these settings are not considered reports of sexual harassment and that without additional action by the individual, the discussions will not result in any action by the University to resolve their concerns.

The locations shall notify the University community that certain University employees, such as the Title IX Compliance Coordinator (Sexual Harassment Officer), managers, supervisors, and other designated employees have an obligation to respond to reports of sexual harassment, even if the individual making the report requests that no action be taken. An individual’s requests regarding the confidentiality of reports of sexual harassment will be considered in determining an appropriate response; however, such requests will be considered in the dual contexts of the University’s legal obligation to ensure a working and learning environment free from sexual harassment and the due process rights of the accused to be informed of the allegations and their source. Some level of disclosure may be necessary to ensure a complete and fair investigation, although the University will comply with requests for confidentiality to the extent possible.

G. Retention of Records Regarding Reports of Sexual Harassment

The office of the Title IX Compliance Coordinator (Sexual Harassment Officer) is responsible for maintaining records relating to sexual harassment reports, investigations, and resolutions. Records shall be maintained in accordance with University records policies, generally five years after the date the complaint is resolved. Records may be maintained longer at the discretion of the Title IX Compliance Coordinator (Sexual Harassment Officer) in cases where the parties have a continuing affiliation with the University. All records pertaining to pending litigation or a request for records shall be maintained in accordance with instructions from legal counsel.

H. REASONABLE ACCOMMODATION (Note: The Reasonable Accommodation policy has been moved to §2.01(D).)

 

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