Rev. 4/08

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
   1. Policy
   2. Responsibility
8. Reasonable Accommodation (Note: Reasonable Accommodation policy has been moved to §2.01(A)(3).)
9. Research Misconduct
   1. Introduction
   2. Scope
   3. Definitions
   4. Roles, Rights, and Responsibilities
   5. General Policies and Principles
   6. Conducting the Assessment and Inquiry
   7. The Inquiry Report
   8. Laboratory Decision and Notification
   9. Conducting the Investigation
   10. The Investigation Report
   11. Laboratory Decision and Notification
   12. Completion of Cases: Reporting Premature Closure to the Funding Agency
   13. Laboratory Actions, including Employee Corrective (Discplinary) Actions
   14. Other Considerations
       
10. Reporting and Investigating Allegations of Suspected Improper Governmental Activities ('Whistleblower Policy")
    1. Introduction
    2. Definitions
       1. University Resources
       2. Improper Governmental Activities
       3. Protected Disclosure
       4. Illegal Order
       5. Whistleblower
       6. Locally Designated Official (LDO)
    Reporting Allegations of Suspected Improper Governmental Activities
    1. Filing a Report
    2. Reporting to the LDO
    3. Reporting to the Office of the President and Others
    3. Investigating Alleged Improper Governmental Activities
    4. Responsibilities
    1. Office of the President
    2. Chancellor
    3. Locally Designated Official (LDO)
    4. Investigative Responsibilities
    5. Roles, Rights and Responsibilities of Whistleblowers, Investigation Participants, Subjects and Investigators
       A. Whistleblowers
       B. Investigation Participants
       C. Investigation Subjects
       D. Investigators
    6. Additional Required Communications
11. Protection of Whistleblowers from Retaliation and Guidelines for Reviewing Retaliation Complaints (Whistleblower Protection Policy)
    1. Policy
    2. Scope of Policy and Definitions
       1. Improper Governmental Activity
       2. Protected Disclosure
       3. Illegal Order
       4. Interference
       5. Official Authority or Influence
       6. Retaliation Complaint
    3. Authority and Responsibilities
       1. Local Procedures
       2. Locally Designated Official (LDO)
       3. Retaliation Complaint Officer (RCO)
       4. Chancellor
    4. Filing a Complaint
       1. Filing Pursuant to an Applicable Grievance or Complaint Resolution Procedure
       2. Filing with the LDO
       3. Filing with a Supervisor
       4. Filing Requirements and Thresholds
    5. Administrative Proceedings
       1. Evidentiary Standards
       2. Special Evidentiary Standards for Health Care Workers
    6.  Complaints Investigated by the RCO
    7. Decision
       1. Decision Based on Findings of an Arbitrator, University or Non-University Hearing Officer, or University Committee
       2. Decision Based on Findings of an Investigation Conducted by the RCO
       3. Corrective Action of a University Employee
       4. Complaint Against the Chancellor, the LDO, or the LDO’s Supervisor
    8. Appeal
    9.   Reports
12. Unauthorized Absences and Job Abandonment
1. Policy
2. Definition
3. Procedures

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).

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).


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

Responsible managers are operations department heads, deputy division directors, and division directors and above (RPM §2.01(K)(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.

2. 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

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.

2. Written Notice of Corrective Action Other Than Written Warnings and Dismissals

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

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.

2. Written Notice of Dismissal

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, 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.

3. 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(K)(3) (Hiring Policies and Procedures, 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(A) (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).) 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.

(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(A) (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(A)(b)(B), 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)).

3. Hearing Process

(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). 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.

4. Responsibility and Authority of the Hearing Officer

(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). 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.

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 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.

6. General Hearing Provisions

(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.

F. VIOLENCE IN THE WORKPLACE

1. Policy

It is the policy of the Laboratory to create and maintain a community in which we can work together in an atmosphere of respect and civility, free of harassing and threatening behaviors. Laboratory policies are designed to protect and promote the rights of members of the Berkeley Lab community and to prevent actions that interfere with those rights and with the Laboratory's mission. Any threat or violent act by an individual associated with Berkeley Lab, including any employee, contractor, guest, or student, will be considered serious misconduct and may be the basis for disciplinary action or dismissal. Such an act may be reported to local law enforcement officials for appropriate action.

2. Crisis Action Team

To assist managers and individuals in assessing situations involving workplace violence, the Laboratory has established a Crisis Action Team (CAT), composed of Berkeley Lab and University of California, Berkeley, campus units with special expertise and professional training. These units work together to deal with verbal and physical behaviors perceived as disruptive, intimidating, threatening, or violent. CAT helps clarify the management of situations (including legal and psychological issues), coordinates communication, and monitors resolution of incidents.

3. Immediate Assistance

If an employee believes he or she needs assistance, he or she should call the Manager of Labor/Employee Relations. If he or she is experiencing an immediate threat, he or she should dial 7911 (or 9-911 from a campus phone).

G. EMPLOYEE ASSISTANCE PROGRAM

1. Policy

The Laboratory's policy is to ensure that employees are offered confidential assistance in resolving such problems as alcoholism, drug abuse, emotional disturbances, or legal, family, and financial difficulties. The Laboratory recognizes that these problems can have a negative impact on job performance that is beyond the ability of supervisors or managers to resolve. An eligible employee who is dealing with any of these problems is encouraged to utilize the Laboratory's Employee Assistance Program (EAP). The EAP is an off-site program provided by the University of California Health Center (the Tang Center) on the Berkeley campus. Employees and managers who are seeking employee-assistance services may contact the University of California Berkeley Employee Assistance Program directly. Eligible employees are those holding career, term, limited, rehired retiree, or non-University of California student-assistant appointments. Employees who hold University of California faculty or GSRA appointments, or are student assistants attending a University of California campus, must use their campus Employee Assistance Program or health benefits.

Employees are assured that self-initiated contacts made with the Laboratory's EAP are kept in strict confidence in accordance with prevailing federal requirements and Laboratory policy on confidential personal health records. The EAP will not contact management concerning employees who refer themselves unless the employee so requests.

Employees participating in the EAP are required to meet job performance standards. Program participation is voluntary and will not affect future employment or career advancement.

2. Responsibility

1. Supervisor. When an employee's work performance is being adversely affected by a personal problem, the supervisor may refer the employee to the EAP for consultation. The supervisor will also inform the employee of the consequences of unresolved work-performance concerns.
   
2. Employee Assistance Program (EAP). EAP services provide consultation to the employee and/or the referring supervisor, problem assessment, referral of the employee to outside resources, if required, and ongoing follow-up for problem resolution.
   
3. Employee. Employees are responsible for performing their jobs in a satisfactory manner. Seeking assistance from the EAP for personal problems that are interfering with work performance may help the employee meet this responsibility.

H. REASONABLE ACCOMMODATION (Note: The Reasonable Accommodation policy has been moved to §2.01(A)(3).)

I. RESEARCH MISCONDUCT (revised 2/28/08)

1. Introduction

All persons engaged in research at the Laboratory are responsible for adhering to the highest standards of research integrity.  Activities that fall short of the basic ethical principles inherent in the research process undermine the scientific enterprise.  As an institution engaged in research, the Laboratory has a responsibility for investigating allegations of research misconduct fairly, effectively, and expeditiously.  This policy sets forth the principles and methods for assessing allegations of research misconduct, conducting inquiries and investigations related to possible research misconduct, and reporting the results to responsible federal and non-federal funding agencies.

Research misconduct means

• fabrication (making up data or results and recording or reporting them),


• falsification (manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record), or


• plagiarism (appropriation of another person’s ideas, processes, results, or words without giving appropriate credit)

in proposing, performing, or reviewing research, or in reporting research results.

Honest error or differences of opinion do not constitute research misconduct.

Under this policy, a finding of research misconduct requires that

• There has been a significant departure from accepted practices of the relevant research community, involving fabrication, falsification or plagiarism;


• The misconduct was committed intentionally, knowingly, or recklessly; and


• The allegation has been proven by a preponderance of the evidence.

The Laboratory Director has delegated authority and responsibility for decisions made under this policy to the Deputy Director (Deciding Official). The head of the Research and Institutional Integrity Office serves as the Research Integrity Officer (RIO) and is responsible for implementing the procedures described in this policy.

2. Scope

1. While this policy is intended to carry out the Laboratory’s responsibilities under the rules of several federal agencies, it applies to all research conducted at the Laboratory regardless of funding source.


2. This policy applies to allegations of research misconduct (fabrication, falsification, or plagiarism in proposing, performing, or reviewing research or in reporting research results) (see Paragraph (I)(1) (Introduction)) involving:


1. A person who, at the time of the alleged research misconduct, was employed by, was an agent of, or was affiliated by contract or agreement with the Laboratory; i.e., employees, guests, collaborators, students, consultants, and subcontractors (collectively referred to as Laboratory members for purposes of this policy).


2. any research proposed, performed, reviewed, or reported, or any research record generated from the research, regardless of whether an application or proposal for funds resulted in a grant, contract, cooperative agreement, or other form of support.


3. With regard to Public Health Service (PHS)–funded research, this policy specifically includes:

(a)  applications or proposals for support for biomedical or behavioral extramural or intramural research, research training or activities related to that research or research training, such as the operation of tissue and data banks and the dissemination of research information;

(b)  PHS-supported biomedical or behavioral extramural or intramural research;

(c)  PHS-supported biomedical or behavioral extramural or intramural research training programs;

(d)  PHS-supported extramural or intramural biomedical or behavioral activities that are related to biomedical or behavioral research or research training, such as the operation of tissue and data banks and the dissemination of research information; and

(e) plagiarism of research records produced in the course of research, research training or activities related to that research or research training

3. This policy does not apply to authorship or collaboration disputes and applies only to allegations of research misconduct that occurred within six years of the date the Laboratory received the allegation, subject to the following exceptions:


1. Subsequent use.  The respondent continues or renews any incident of alleged research misconduct that occurred before the six-year limitation through the citation, republication or other use for the potential benefit of the respondent of the research record that is alleged to have been fabricated, falsified, or plagiarized (see Paragraph (I)(1) (Introduction)).


2. Health or safety of the public exception.  If the funding agency or Laboratory, following consultation with the funding agency, determines that the alleged misconduct, if it occurred, would possibly have a substantial adverse effect of the health or safety of the public.


3. “Grandfather” exception.  If the funding agency or the Laboratory received the allegation or research misconduct before May 17, 2005.

3. Definitions

1. Allegation means a disclosure of possible research misconduct through any means of communication. This disclosure may be by written or oral statement or other communication to the Laboratory or a funding official.


2. Complainant means a person who in good faith makes an allegation of research misconduct.


3. Conflict of interest means the real or apparent potential bias that may occur due to prior or existing personal, financial, or professional relationships.


4. Deciding Official (DO) means the Laboratory official who makes final determinations on allegations of scientific misconduct and any responsive Laboratory actions. The Laboratory’s Deputy Director is the Deciding Official.


5. Evidence means any document, tangible item, or testimony offered or obtained during a research misconduct proceeding that tends to prove or disprove the existence of an alleged fact.


6. Funding agency / sponsoring agency means the source(s) of the funds under which the research was conducted. See Paragraph (I)(4)(a)(iii) for agency-specific information.


7. Good faith means having a belief in the truth of one’s allegation or testimony that a reasonable person in the complainant’s or witness’s position could have, based on the information known to the complainant or witness at the time. An allegation or cooperation with a research misconduct proceeding is not in good faith if made with knowing or reckless disregard for information that would negate the allegation or testimony. Good faith as applied to a committee member means impartially and honestly carrying out the duties assigned under this policy.  A committee member does not act in good faith if his/her acts or omissions on the committee are dishonest or influenced by personal, professional, or financial conflicts of interest with those involved in the research misconduct proceedings.


8. Inquiry means gathering information and initial fact-finding to determine whether an allegation or apparent instance of scientific misconduct warrants an investigation.


9. Investigation means the formal development of a factual record and the examination of that record leading to a decision not to make a finding of research misconduct or to a recommendation for a finding of research misconduct.


10. Preponderance of the evidence means proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not.


11. Research Integrity Officer (RIO) means the Laboratory official responsible for implementing the procedures described in this policy.  The Laboratory’s RIO is the Research and Institutional Integrity Manager.


12. Research means a systematic experiment, study, evaluation, demonstration or survey designed to develop or contribute to general knowledge (basic research) or specific knowledge (applied research) in all fields of science, medicine, engineering, and mathematics, including, but not limited to, research in economics, education, linguistics, medicine (relating broadly to public health by establishing, discovering, developing, elucidating or confirming information about, or the underlying mechanism relating to, biological causes, functions or effects, diseases, treatments, or related matters to be studied), psychology, social sciences statistics, and research involving human subjects or animals.


13. Research record means the record of data or results that embody the facts resulting from scientific inquiry, including but not limited to, research proposals, laboratory records, both physical and electronic, progress reports, abstracts, theses, oral presentations, internal reports, journal articles, and any documents and materials provided to the funding agency or Laboratory official by a respondent in the course of the research misconduct proceeding.


14. Respondent means the person against whom an allegation of research misconduct is directed or who is the subject of a research misconduct proceeding.


15. Retaliation means an adverse action taken against a complainant, witness, or inquiry appointee or committee member, or investigation committee member by the Laboratory or one of its members in response to


1. A good faith allegation of research misconduct; or


2. Good faith cooperation with or participation in a research misconduct proceeding

4. Roles, Rights and Responsibilities

1. Laboratory


1. The Laboratory will respond to each allegation of research misconduct in a thorough, competent, objective, and fair manner, including taking precautions to ensure that individuals responsible for carrying out any part of the research misconduct proceeding do not have unresolved personal, professional, or financial conflicts of interest with the complainant, respondent, or witnesses.


2. The Laboratory will take all reasonable and practical steps to ensure the cooperation of complainants, respondents and other Laboratory members with research misconduct proceedings, including, but not limited to, their providing information, research records, and evidence.


3. The Laboratory will report to the appropriate office/official(s) of the funding agency sponsoring the research involved as required in this policy. Reports will be made to

   (a)  the appropriate contracting officer for Department of Energy (DOE) supported activities;

   (b)  the Office of Research Integrity (ORI) of the Department of Health and Human Services (HHS) for PHS-supported activities;

   (c)  the appropriate contracting officer or contracting officer’s technical representative for Environmental Protection Agency supported activities;

   (d)  the Office of the Inspector General (OIG) for National Aeronautics and Space Administration (NASA) supported activities; and

   (e)  for agencies not listed above, to the authority identified in the specific grant or contract.

   In cases where the research is supported by multiple agencies, the Laboratory will report to each agency.


2. Research Integrity Officer

The Research Integrity Officer (RIO) has primary responsibility for implementation of the Laboratory’s policies and procedures on research misconduct.  When performing any of the duties required in this policy, the RIO will consult with the responsible Division Director and other Laboratory scientific and/or institutional officials, as appropriate, or when specific expertise or assistance is needed.  The responsibilities of the RIO include the following duties related to research misconduct proceedings:  

1. Be available to consult with persons uncertain about whether to submit an allegation of research misconduct;


2. Receive allegations of research misconduct


3. Assess each allegation of research misconduct in accordance with Paragraph (I)(6)(a) (Assessment of Allegations) of this policy to determine whether it falls within the definition of research misconduct (see Paragraph (I)(1) (Introduction) and warrants an inquiry;


4. As necessary, take interim action and notify the funding agency (see Paragraph (I)(4)(a)(iii)) of special circumstances, in accordance with Paragraph (I)(5)(f) (Interim Actions and Notifying the Funding Agency of Special Circumstances) of this policy;


5. Sequester research data and evidence pertinent to the allegation of research misconduct in accordance with Paragraph (I)(6)(c) (Notice to Respondent; Sequestration of Research Records) of this policy and maintain it securely in accordance with this policy and applicable law and regulation;


6. Provide confidentiality to those involved in the research misconduct proceedings as required by Paragraph (I)(5)(c) (Confidentiality) of this policy.


7. Notify the respondent and provide opportunities for him/her to review/comment/respond to allegations, evidence, and committee reports in accordance with this policy;


8. As appropriate or required by this policy, inform respondents, complainants, and witnesses of the procedural steps in the research misconduct proceeding;


9. Appoint the chair and members of the inquiry and investigation committees, ensure that those committees are properly staffed and that there is expertise appropriate to carry out a thorough and authoritative evaluation of the evidence;


10. Determine whether each person involved in handling an allegation of research misconduct has an unresolved personal, professional, or financial conflict of interest and take appropriate actions, including recusal, to ensure that no person with such conflict is involved in the research misconduct proceeding;


11. In cooperation with other Laboratory officials, take all reasonable and practical steps to protect or restore the positions and reputations of good faith complainants, witnesses, and committee members and counter potential or actual retaliation against them by respondents or other Laboratory members;


12. Keep the Deciding Official and others who need to know apprised of the progress of the review of the allegation of research misconduct;


13. Notify and make reports to the funding agency (see Paragraph (I)(4)(a)(iii)) as required by this policy.


14. Ensure that actions taken by the Laboratory and the funding agency are enforced and take appropriate action to notify other involved parties, such as sponsors, law enforcement agencies, and professional societies, and licensing boards of those actions, and


15. Maintain records of the research misconduct proceeding and make them available to the funding agency in accordance with Paragraph (I)(11)(c) (Maintaining Records for Review by the Funding Agency) of this policy.


3. Complainant

The complainant is responsible for making allegations in good faith, maintaining, confidentiality, and cooperating with the inquiry and investigation.   If the matter proceeds to an investigation, the complainant must be interviewed, and be given the transcript or recording of the interview for review and correction.  Individuals whose allegations of research misconduct are not made in good faith may be subject to Laboratory corrective (disciplinary) action up to and including dismissal from employment.

4. Respondent

The respondent is responsible for maintaining confidentiality and cooperating with the conduct of an inquiry and investigation.  The respondent is entitled to:

1. A good faith effort from the RIO to notify the respondent in writing at the time of or before beginning the inquiry;


2. An opportunity to comment on the draft inquiry report and have his/her comments attached to the inquiry report;


3. Be notified of the outcome of the inquiry, and receive a copy of the inquiry report that includes a copy of, or refers to the Laboratory’s policies and procedures on research misconduct.  In the case of an allegation of misconduct in research supported by PHS, the inquiry report must also include a copy of, or refer to, 42 CFR Part 93.


4. Be notified in writing of the allegations to be investigated within a reasonable time after the determination that an investigation is warranted, but before the investigation begins, and be notified in writing of any new allegations, not addressed in the inquiry or in the initial notice of investigation, within a reasonable time after the determination to pursue those allegations;


5. Be interviewed during the investigation, have the opportunity to review and correct the recording or transcript of the interview, and have the corrected recording or transcript included in the record of the investigation;


6. Have interviewed during the investigation any witness who has been reasonably identified by the respondent as having information on relevant aspects of the investigation, have the recording or transcript of the interview provided to the witness for review and correction, and have the corrected recording or transcript included in the record of investigation; and


7. Receive a copy of the draft investigation report and, concurrently, if requested, a copy of, or supervised access to the evidence on which the report is based, and be notified that any comments must be submitted within 30 calendar days of the date on which the copy was received and that the comments will be considered by the institution and addressed in the final report.

The respondent shall be given the opportunity to admit that research misconduct occurred and that he/she committed the research misconduct.  With the advice of the RIO and/or other Laboratory officials, the Deciding Official may terminate the Laboratory’s review of an allegation that has been admitted, if the Laboratory’s acceptance of the admission and any proposed settlement is approved by the funding agency.

5. Deciding Official

The DO will receive the inquiry report and after consulting with the RIO and/or other Laboratory officials, decide whether an investigation is warranted under the criteria set forth in this policy (see Paragraph (I)(8)(a)). Any finding that an investigation is warranted must be made in writing by the DO and must be provided to the funding agency, together with a copy of the inquiry report, within 30 calendar days of the finding.  If it is found that an investigation is not warranted, the DO and the RIO will ensure that detailed documentation of the inquiry is retained for at least 7 years after termination of the inquiry, so that the funding agency may assess the reasons why the Laboratory decided not to conduct an investigation.

The DO will receive the investigation report and, after consulting with the RIO and/or other Laboratory officials, decide the extent to which the Laboratory accepts the findings of the investigation and, if research misconduct is found, decide what, if any, Laboratory actions are appropriate.  The DO shall ensure that the final investigation report, the findings of the DO and a description of any pending or completed actions are provided to the funding agency, as required by Paragraph (I)(11)(b) (Notification to Funding Agency of Laboratory Findings and Actions) of this policy.

5.  General Policies and Principles

1. Responsibility to Report Misconduct

Laboratory members should report observed, suspected, or apparent research misconduct (see Paragraph (I)(1) (Introduction)) to the RIO or other appropriate Laboratory official.  If the Laboratory member makes his/her report to a Laboratory official other than the RIO, the report must be forwarded to the RIO.

If an individual is unsure whether a suspected incident falls within the definition of research misconduct, he/she may meet with or contact the RIO at RIO@lbl.gov to discuss the suspected research misconduct informally, which may include discussing it anonymously and/or hypothetically.  If the circumstances described by the individual do not meet the definition of research misconduct, the RIO will refer the individual or allegation to other offices or officials with responsibility for resolving the problem.

At any time, a Laboratory member may have confidential discussions and consultations about concerns of possible misconduct with the RIO and will be counseled about appropriate procedures for reporting allegations. The RIO will not be able to agree to a confidential discussion if the subject of the misconduct involves any of the conditions or special circumstances set forth in Paragraph (I)(5)(f) below.

2. Cooperation with Research Misconduct Proceedings

Laboratory members are required to cooperate with the RIO and other Laboratory officials in the review of allegations and the conduct of inquiries and investigations.  Laboratory members, including respondents, have an obligation to provide evidence relevant to research misconduct allegations to the RIO or other Laboratory officials.

3. Confidentiality

The RIO shall

1. limit disclosure of the identity of respondents and complainants to those who need to know in order to carry out a thorough, competent, objective and fair research misconduct proceeding;


2. except as otherwise prescribed by applicable law, limit the disclosure of any records or evidence from which research subjects might be identified to those who need to know in order to carry out a research misconduct proceeding.


4. Protecting Complainants, Witnesses, and Committee Members

Laboratory members may not retaliate in any way against complainants, witnesses, or committee members. Laboratory members should immediately report any alleged or apparent retaliation against complainants, witnesses or committee members to the RIO, who shall review the matter and, as necessary, make all reasonable and practical efforts to counter any potential or actual retaliation and protect and restore the position and reputation of the person against whom the retaliation is directed.

5. Protecting the Respondent

As requested and as appropriate, the RIO and other Laboratory officials shall make all reasonable and practical efforts to protect or restore the reputation of persons alleged to have engaged in research misconduct, but against whom no finding of research misconduct is made.

During the research misconduct proceeding, the RIO is responsible for ensuring that respondents receive all notices and opportunities provided for in this policy.  Respondents may consult with personal legal counsel or a non-lawyer personal adviser (who is not a principal or witness in the case) to seek advice and may bring the legal counsel or personal adviser to interviews or meetings on the case.  The role of legal counsel in such meetings or interviews is limited to providing advice, not representation, to the respondent.

6. Interim Actions and Notifying the Funding Agency of Special Circumstances

Throughout the research misconduct proceeding, the RIO will review the situation to determine if there is any threat of harm to public health, federal or state funds, and equipment, or the integrity of the funding agency’s supported research process.  In the event of such a threat, the RIO will, in consultation with other Laboratory officials and the funding agency, take appropriate interim action to protect against any such threat.  Such action might include additional monitoring of the research process and the handling of research funds and equipment, reassignment of personnel or of the responsibility for the handling of research funds and equipment, additional review of research data and results or delaying publication.  The RIO shall, at any time during a research misconduct proceeding, notify the funding agency immediately if he/she has reason to believe that any of the following conditions exist:

1. Health or safety of the public is at risk, including an immediate need to protect human or animal subjects;


2. Funding agency resources or interests are threatened;


3. Research activities should be suspended;


4. There is a reasonable indication of possible violations of civil or criminal law;


5. Funding agency action is required to protect the interests of those involved in the research misconduct proceeding;


6. The research misconduct proceeding may be made public prematurely and funding agency action may be necessary to safeguard evidence and protect the rights of those involved; or


7. The research community or public should be informed.

6.   Conducting the Assessment and Inquiry

1. Assessment of Allegations

Upon receiving an allegation of research misconduct, the RIO will immediately assess the allegation to determine whether it is sufficiently credible and specific so that potential evidence of research misconduct may be identified, whether it is within the jurisdictional criteria of Paragraph (I)(2) (Scope) of this policy, and whether the allegation falls within the definition of research misconduct in Paragraph (I)(1) (Introduction) of this policy.  An inquiry must be conducted if these criteria are met.

The assessment period should be brief, preferably concluded within a week.  In conducting the assessment, the RIO need not interview the complainant, respondent, or other witnesses, or gather data beyond any that may have been submitted with the allegation except as necessary to determine whether the allegation is sufficiently credible and specific so that potential evidence of research misconduct may be identified. The RIO shall, on or before the date on which the respondent is notified of the allegation, obtain custody of, inventory, and sequester all research records and evidence needed to conduct the research misconduct proceeding, as provided in Paragraph (I)(6)(c) of this section.

2. Initiation and Purpose of the Inquiry

If the RIO determines that the criteria for an inquiry are met, he/she will immediately initiate the inquiry process.  The purpose of the inquiry is to conduct an initial review of the available evidence to determine whether to conduct an investigation.  An inquiry does not require a full review of all the evidence related to the allegation.

3. Notice to Respondent; Sequestration of Research Records

At the time of or before beginning an inquiry, the RIO must make a good faith effort to notify the respondent in writing, if the respondent is known.  If the inquiry subsequently identifies additional respondents, they must be notified in writing.  On or before the date on which the respondent is notified, or the inquiry begins, whichever is earlier, the RIO must take all reasonable and practical steps to obtain custody of all the research records and evidence needed to conduct the research misconduct proceeding, inventory the records and evidence and sequester them in a secure manner, except that where the research records or evidence encompass scientific instruments shared by a number of users, custody may be limited to copies of the data or evidence on such instruments, so long as those copies are substantially equivalent to the evidentiary value of the instruments.  The RIO may consult with the funding agency for advice and assistance in this regard.

4. Appointment of an Individual (Appointee) or Committee to Conduct an Inquiry

The RIO, in consultation with other Laboratory officials as appropriate, will appoint an individual or committee (and committee chair) to conduct an inquiry as soon after the initiation of the inquiry as is practical.  The appointee or committee members must not have unresolved personal, professional, or financial conflicts of interest with those involved with the inquiry and should include individuals with the appropriate scientific expertise to evaluate the evidence and issues related to the allegation, interview the principals and key witnesses, and conduct the inquiry.

5. Charge to the Appointee or Committee and First Meeting

The RIO will prepare a charge for the appointee or committee that:

1. Sets forth the time for completion of the inquiry;


2. Describes the allegations and any related issues identified during the allegation assessment;


3. States that the purpose of the inquiry is to conduct an initial review of the evidence, including the testimony of the respondent, complainant and key witnesses, to determine whether an investigation is warranted, not to determine whether research misconduct definitely occurred or who was responsible;


4. States that an investigation is warranted if it is determined

(a)  there is a reasonable basis for concluding that the allegation falls within the definition of research misconduct and is within the jurisdictional criteria of Paragraph (I)(2) (Scope); and

(b)  the allegation may have substance, based on the committee’s review during the inquiry.


5. Informs the appointee or inquiry committee that they are responsible for preparing or directing the preparation of a written report of the inquiry that meets the requirements of Paragraph (I)(7)(a) (Elements of the Inquiry Report) of this policy.

At the first meeting with the appointee or committee, the RIO will review the charge, discuss the allegations, any related issues, and the appropriate procedures for conducting the inquiry, assist with organizing plans for the inquiry, and answer any questions raised.  The RIO will be present or available throughout the inquiry to advise as needed.

6. Inquiry Process

The inquiry process will normally include interviews of the complainant, the respondent and key witnesses as well as examining relevant research records and materials.  The evidence, including the testimony obtained during the inquiry will be evaluated.  After consultation with the RIO, the appointee or committee members will decide whether an investigation is warranted based on the criteria in Paragraph (I)(6)(e)(iv) (Charge to Appointee or Committee and First Meeting).  The scope of the inquiry is not required to and does not normally include deciding whether misconduct definitely occurred, determining definitely who committed the research misconduct or conducting exhaustive interviews and analyses.  However, if a legally sufficient admission of research misconduct is made by the respondent, misconduct may be determined at the inquiry stage if all relevant issues are resolved.  In that case, the RIO shall promptly consult with the funding agency to determine the next steps that should be taken.  See Paragraph (I)(12) (Completion of Cases: Reporting Premature Closure to the Funding Agency).  

7. Time for Completion

The inquiry, including preparation of the final inquiry report and the decision of the DO on whether an investigation is warranted, must be completed within 60 calendar days of initiation of the inquiry, unless the RIO determines that circumstances clearly warrant a longer period.  If the RIO approves an extension, the inquiry records must include documentation of the reasons for exceeding the 60-calendar day period. The respondent will be notified, in writing, of the extension.

7.   The Inquiry Report

1. Elements of the Inquiry Report

A written inquiry report must be prepared that includes the following information:

1. the name and position of the respondent;


2. names and titles of the appointee or committee members who conducted the inquiry;


3. a summary of the inquiry process used;


4. a list of the research records reviewed;


5. summaries of any interviews;


6. a description of the allegations of research misconduct;


7. the funding agency support, including, for example, grant numbers, grant applications, contracts and publications listing that support;


8. any comments on the draft report by the respondent,


9. the basis for recommending or not recommending that the allegations warrant an investigation; and


10. whether any actions should be taken if an investigation is not recommended.

Laboratory Counsel should review the inquiry report for legal sufficiency.  Modifications should be made, as appropriate, in consultation with the RIO and the appointee or committee. 

2. Notification to the Respondent and Opportunity to Comment

The RIO shall notify the respondent whether the inquiry found an investigation to be warranted and shall include a copy of the draft inquiry report for comment within 10 calendar days of such notification.  The notification must include a copy of the Laboratory’s policies and procedures on research misconduct. If the alleged misconduct involves research supported by PHS the notification must include a copy of, or refer, to 42 CFR Part 93. 

Based on any comments that are timely submitted, the appointee or inquiry committee may revise the draft report as appropriate and prepare it in final form.  The appointee or committee will transmit the final report, including any timely submitted comments by respondent, to the RIO.

8. Laboratory Decision and Notification

1. Decision by Deciding Official

The RIO will transmit the final inquiry report to the DO, who will determine in writing whether an investigation is warranted.  The inquiry is completed when the DO makes this determination. An investigation is warranted if there is:

1. a reasonable basis for concluding that the allegation falls within the definition of research misconduct under Paragraph (I)(1) (Introduction) and within the scope of this policy (Paragraph (I)(2) (Scope)) and


2. preliminary information-gathering and preliminary fact-finding from the inquiry indicates that the allegation may have substance.


2. Notification to the Complainant of the Results of the Inquiry

The RIO shall notify the complainant whether the inquiry found an investigation to be warranted.

3. Notification to the Funding Agency

Within 30 calendar days of the DO’s decision that an investigation is warranted, the RIO will provide the funding agency with the DO’s written decision and a copy of the inquiry report.  The RIO will also notify Laboratory or other officials who need to know of the DO’s decision.  The RIO must provide the following information to the funding agency upon request:

1. the Laboratory policies and procedures under which the inquiry was conducted;


2. the research records and evidence reviewed, transcripts or recordings of any interviews, and copies of all relevant documents; and


3. the charges to be considered in the investigation.


4. Documentation of Decision Not to Investigate

If the DO decides that an investigation is not warranted, the RIO shall secure and maintain for 7 years after termination of the inquiry sufficiently detailed documentation of the inquiry to permit a later assessment by the funding agency of the reasons why an investigation was not conducted.  These documents must be provided to the funding agency upon request.

9.  Conducting the Investigation

1. Initiation and Purpose

The investigation must begin within 30 calendar days after the determination by the DO that an investigation is warranted. The purpose of the investigation is to develop a factual record by exploring the allegations in detail and examining the evidence in depth, leading to recommended findings on whether research misconduct has been committed, by whom, and to what extent.  The investigation will also determine whether there are additional instances of possible research misconduct that would justify broadening the scope beyond the initial allegations.  This is particularly important where the alleged research misconduct involves clinical trials or potential harm to human subjects or the general public or if it affects research that forms the basis for public policy, clinical practice, or public health practice.  The findings of the investigation must be set forth in an investigation report (see Paragraph (I)(10) (Investigation Report)).

2. Notify the Funding Agency and Respondent; Sequestration of Research Records

On or before the date on which the investigation begins, the RIO must:

1. notify the funding agency of the decision to begin the investigation and provide a copy of the inquiry report, and