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HomeMy WebLinkAbout11-454OCTOBER 11, 2011 11 -454 RESOLUTION (CARRIED 7 -0 LOST LAID OVER WITHDRAWN ) PURPOSE INITIATED BY APPROVE EMPLOYEE HANDBOOK UPDATES / GRIEVANCE PROCEDURE / RETIREMENT (WRS CONTRIBUTION) / INCLUSION /EXCLUSION HUMAN RESOURCES DEPARTMENT BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached updates to the Employee Handbook for City of Oshkosh employees are hereby approved and that the City Manager is authorized to execute the Employee Handbook updates as attached hereto, any changes in the execution copy being deemed approved by his signature, and the proper City officials are authorized and directed to take those steps necessary to implement the provisions of the Handbook. CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh' 3 City of Oshkosh • OIHKOIH MEMORANDUM Date: October 6, 2011 To: Mark Rohloff, City Manager From: John Fitzpatrick, Assistant City Manager / Director of Administrative Services Re: Employee Handbook Updates The modifications in this update are being proposed as a result of the recent implementation of Acts 10 and 32 at the State level and relate to our grievance procedure, WRS contributions and those employees who are identified as covered by the handbook. First WRS; with the new legislation, the City of Oshkosh will be prohibited from paying the employee required share of the Wisconsin Retirement System (WRS) as it has in the past for certain groups of employees. The modification proposed updates our language to reflect this development. Secondly, our grievance procedure; as a result of the aforementioned legislation, municipalities who have a grievance process must provide for the incorporation of an Independent Hearing Officer (IHO) as well as their Common Council into the process. The IHO essentially will function in the same capacity as an arbitrator under the old system and will be selected by the City Manager. In regard to the Common Council, they will act as the final step in the grievance appeals process if either party involved disagrees with the decision of the IHO. Finally, Inclusions and Exclusions; with the new legislation grievances may be heard by a broader group of employees than was previously identified by our handbook. This modification updates our language to reflect this change. Included with this memo are the specific proposed modifications to the handbook. Please let me know if you or any of the Council Members have any questions and thank you for your support and assistance with this process. Attachment: Employee Handbook Modifications, October 2011 0 114 GRIEVANCE 1. Policy - It is the policy of the City to provide all employees with a process to resolve workplace disagreements relating to employee discipline, termination of employment, and workplace safety. The City hopes that any disagreement can be resolved informally between the employee and their supervisor. However, if an informal resolution cannot be reached, then each employee may on an individual basis file a formal grievance which will be reviewed by a number of levels of City management. The final review for grievances that cannot be resolved is with the Oshkosh Common Council. The filing of a grievance by an employee will not reflect unfavorably on the employee's standing, performance, loyalty or desirability to the public service and shall be without fear of reprisal. 2. Administration - The Director of Administrative Services shall supervise and administer the grievance process. Supervisors and Department Heads shall keep the Director of Administrative Services informed of all grievances in progress. 3. Definitions: Grievance - A grievance is a formal complaint regarding the application of City policies related to an individual employee's discipline, termination of employment, or a dispute concerning workplace safety. The terms "discipline," "termination of employment," and "workplace safety" referred to shall be limited to the definitions and scope specifically identified in this grievance policy. In order to process written grievances, the grievance must contain all of the following: • the name and position of the grievant; • the date the incident or alleged violation took place; • the issue involved; • a clear and concise statement of the grievance; • the specific section of the Employee Handbook / City Policy Manual or Workplace Safety Rule alleged to have been violated; • steps taken to informally resolve the issue and the results; • the relief sought or actions the employer is requested to take; • the signature of the grievant and the date. Employee — all City employees except those excluded by any state statute governing the creation of this grievance procedure. Employees receiving the benefits of this grievance policy shall not include employees subject to a collective bargaining agreement addressing employee discipline, termination and workplace safety; statutorily appointed individuals identified specifically in state statutes as serving at the pleasure of an appointing authority; elected officials; and, independent contractors. This policy shall not apply to police officers or fire personnel subject to Section 62.13, Wisconsin Statutes, relating to suspensions, reductions in rank, suspension and reduction in rank, or removal. 9/21/2011 Workplace Safety — are those actions or inactions related to physical health and safety of employees enforceable under federal or state law, or City Policy related to: safety of the physical work environment, the safe operation of workplace equipment and tools, provision of protective equipment, training and warning requirements. The City policy applicable to this definition is Section 307 of the City's Employee Handbook. Discipline — means oral reprimands (only where a written record of the reprimand is placed in the employee's file), written reprimands, suspensions and demotions. The definition of discipline does not include: • Performance reviews, work plans or corrective actions that do not include a reprimand or other adverse employment action; • Suspension for investigative purposes; • Non - disciplinary wage, benefit or salary adjustments; or • Change in assignment, assignment location, or unsuccessful completion of an introductory period resulting in non - disciplinary wage, benefit or salary adjustments. Termination — means action taken by the employer to terminate an individual's employment for misconduct or performance reasons. The definition of termination does not include: • Layoffs or failure to be recalled from layoff; • Workforce reduction activities; • Job transfers, demotions, or reinstatements; • Action taken as a result of an employee's failure to meet the qualifications of the position; • Voluntary termination including without limitation, quitting and resignation; • Job abandonment; • End of employment due to disability; • Retirement; • Death; • End of employment due to completion of temporary assignment; or, • Termination of an at -will employee for other than rules violations, acts detrimental to the employer, or other acts of misconduct. 4. Grievance Procedure Step 1 — The grievance procedure may begin for any dispute which remains unresolved after informal efforts of both the employee and employer. Employees that are not satisfied with the results of informal resolution efforts and are eligible to file a grievance may do so in writing no later than five (5) days after the event. Written grievances shall 9/21/2011 be submitted to the Director of Administrative Services in the form required by this policy. The Director of Administrative Services will then forward the grievance to the employee's immediate supervisor. The employee's supervisor shall discuss and review the grievance in a manner the supervisor believes is most appropriate for the circumstances and shall determine whether or not the actions taken, which are the subject of the grievance, were reasonable. The supervisor should provide to the employee a written response, report, and /or conclusions describing their resolution of the problem, or any unresolved issues, within five (5) days after the grievance was submitted to the Director of Administrative Services. Step 2 — If the response or report of the employee's immediate Supervisor is not acceptable to the employee, then the employee may appeal the supervisor's response or report to the Department Head. The appeal to the Department Head must be in writing, must set forth the reasons for this further appeal, and must be submitted to the Director of Administrative Services within five (5) days after receiving the supervisor's response / report. The Director of Administrative Services will forward the grievance appeal to the Department Head. The Department Head shall discuss and review the grievance appeal in a manner the Department Head believes is most appropriate for the circumstances and shall determine whether or not the actions taken, which are the subject of the grievance, were reasonable. The Department Head should provide to the employee a written response, report, and /or conclusions describing their resolution of the problem, or any unresolved issues, within five (5) days after the grievance appeal was submitted to the Director of Administrative Services. Step 3 - If the response or report of the employee's Department Head is not acceptable to the employee, then the employee may appeal the Department Head's response or report directly the Director of Administrative Services. The appeal to the Director of Administrative Services must be in writing, must describe the facts and circumstances surrounding their grievance and their appeal of previous decisions of their supervisor and Department Head, and be submitted within five (5) days after receiving the Department Head's report / response. The Director of Administrative Services shall discuss and review the grievance and its appeal in a manner the Director of Administrative Services believes is most appropriate for the circumstances and shall determine whether or not the actions taken, which are the subject of the grievance, were reasonable. The Director of Administrative Services should provide to the employee a written response, report, and /or conclusions describing their resolution of the problem, or any unresolved issues, within five (5) days after they receive the grievance appeal. Step 4 — If the response or report of the Director of Administrative Services is not acceptable to the employee, then the employee may appeal the Director of Administrative Services' response or report to an Impartial Hearing Officer (IHO). The appeal to the IHO must be in writing, must describe the facts and circumstances surrounding their grievance, and must be submitted to the City Manager within five (5) days after receiving the Director of Administrative Services' report / response. The IHO will be designated by the City Manager at the sole discretion of the City Manager. Any costs incurred by the IHO will be paid by the City. The IHO will convene a hearing in the manner the IHO determines necessary according to the particular circumstances of each situation. The 9/21/2011 IHO shall have the authority to administer oaths, issue subpoenas at the request of the parties, and decide if a transcript is necessary. The IHO may require the parties to submit grievance documents and witness lists in advance of the hearing to expedite the hearing. The IHO's decision shall be based upon whether or not a preponderance of the evidence indicates that the actions taken which are the subject of the grievance were reasonable. In termination and discipline cases, the City shall have the burden of proving that the actions taken were reasonable. In workplace safety cases, the employee shall have the burden of proving that the actions, or inactions, taken were unreasonable. The IHO may request oral or written arguments and replies. The IHO shall provide the parties a written decision in a timely manner; which in most cases will not exceed thirty (30) days. The IHO shall have the discretion to take all necessary action, and make all necessary orders, related to the grievance up to an including dismissal of the grievance for failure to comply with the rules of the this policy or the IHO's rules. IHO's may only consider the matters presented in the initial grievance filed by the employee. The IHO shall have no power to add to subtract from or modify the terms of the City policy or rule that forms the basis for the grievance. The report / response of an immediate supervisor, Department Head, or Director of Administrative Services may be relevant to the IHO proceeding for procedural purposes, but shall not be conclusive or binding upon the IHO's final determination. If the IHO is unwilling or unable to serve at any time during the process the City Manager shall designate a new IHO. Step 5 — Either the employee or the City, or both, may appeal the final determination of the IHO, either in whole or in part, to the Oshkosh Common Council. The appeal to the Common Council must be in writing, must describe the facts and circumstances surrounding their grievance and their appeal of the IHO's final determination, and be submitted to the City Manager within ten (10) days after receiving the IHO's final determination. The City Council shall begin its review the grievance appeal within thirty (30) days after it has been received by the City Manager. Common Council review will be conducted during a closed session meeting unless an open session is requested by the employee, or when some or all of the grievance review is required by law to be held in an open session. The Common Council involvement in the grievance process shall be for the purpose of reviewing the IHO final decision and shall not be for the purpose of conducting a new hearing or a continuation of a previous hearing. Therefore, the Common Council will make its decision based upon the final written decision of the IHO and any evidence collected during the IHO hearing process., During its review, the Common Council may, at its sole discretion, accept oral and /or written statements from the Grievant and from a representative of the City. However, no new testimony, records, or evidence shall be offered to, or accepted by, the Common Council. The Council may adjourn its review of the grievance as it deems appropriate under the circumstances. The Common Council is responsible for deciding whether or not the IHO decision is reasonable in light of the information that was presented at the IHO's hearing. 9/21/2011 Because reasonable minds may come to different conclusions, the Common Council should not overturn an IHO decision simply because they may have reached a different conclusion. IHO decisions may be overturned if it appears that material rules or laws were not followed, or if it appears that the IHO final decision was arbitrary and capricious. The Common Council may make a decision despite recognized IHO errors or omissions if they are not material or, if they are material, that they do not affect the final outcome. A simple majority vote of the City Council membership shall decide the appeal within twenty (20) days following the last session scheduled for review. The Common Council will issue a final written decision signed by those approving the decision which will include statements indicating either that the IHO final decision is affirmed, or that the IHO decision did not follow material rules or laws and therefore is reversed, or the IHO decision is arbitrary and capricious and therefore is reversed. The Common Council's written decision shall be binding on all parties. 5. Representation — A grievant may be accompanied by a representative throughout the grievance process. The representative may be an attorney or non - attorney. The cost of any representative, and all of the grievant's costs associated with the grievance procedure, shall be at the greivant's sole cost regardless of the outcome of the grievance. The grievant's right to a representative shall not impede the timely and efficient resolution of the grievance process. 6. Time - A grievance will be processed according to the established timelines. Except for decisions and determinations required of the IHO and Common Council, in those instances when a report / response of the employer is not provided within the timeframe noted, the grievance is considered denied. A grievant may advance a grievance to the next step if a report / response is not provided by the City within the designated timeframes. A grievant shall not file, advance, or appeal a grievance outside of the designated timeframes. Failure of the grievant to follow the timelines and other requirements in this policy shall result in the IHO and/or Common Council not having jurisdiction over this matter and shall terminate the grievance procedure for the grievant. However, an extension of time can be made in writing by agreement of both parties. For purposes of this section, time limits are defined as weekdays, excluding City recognized legal holidays. The time limits within which an action is to be taken under this grievance procedure shall be computed by excluding the first day and including the last day. 7. Legal Action — Regardless of the terms of this grievance policy, employees shall at all times retain all rights, protections, and procedures granted by federal and state laws. Nothing in this section shall abrogate any legal means of redress to the courts available to all employees. 8. Exclusive Remedy - This procedure constitutes the exclusive process for the redress of any employee grievances as defined herein. However, nothing in this grievance procedure shall prevent any employee from communicating with the City their concerns regarding matters which are either not subject to the grievance procedure or where the employee does not wish to pursue the formal grievance procedure. Matters not subject to the grievance procedure that are raised by employees shall be considered, and potentially acted upon, by City administration which retains final authority regarding any necessary 9/21/2011 procedures and conclusions, subject to any applicable City policy or directive, to resolve the matter. 103 INCLUSIONS / EXCLUSIONS 1. This employment handbook applies to non- represented employees and to employees covered under collective bargaining agreements when the specific agreements do not apply to the contrary. 2. In instances when these provisions are in conflict with Wis. Stats. Chapter 62.13 (Municipal Police and Fire Departments), or the rules adopted by the Police and Fire Commission, those provisions shall apply. 3. This handbook shall apply to personnel administration for all employees and departments of the City of Oshkosh now existing or hereafter established except the following: a. Members of the Oshkosh Common Council. b. Persons employed to make or conduct a temporary special inquiry, investigation or examination on behalf of the City. c. Members of committees, boards or commissions who are not City employees. d. Students engaged in field training. e. Work relief participants. f. Volunteer workers. g. Independent contractors. The City Manager with Common Council approval may make exceptions to any of these standards (e.g. emergency employment situations where specific Federal or other funding requirements must be met) if it is assured that granting such exceptions is not detrimental to the system nor in conflict with Wisconsin Statutes or Federal Laws or Regulations. 214 RETIREMENT The City of Oshkosh currently participates in a retirement plan known as the Wisconsin Retirement System (WRS) which is administered by the Department of Employee Trust Funds. The employer shall pay to the retirement fund the statutorily required amount designated by the fund. A WRS employee benefit handbook explaining the program in detail is available in the Benefits Office. 9/21/2011 CITY OF OSHKOSH EMPLOYEE GRIEVANCE Employee- Grievant Information Employee: Position: Supervisor: Department Head: Work Location: Statement of Grievance Date of Alleged Incident: Issue Involved: Provide a clear and concise statement of the pertinent facts including persons involved: (attach additional statement if necessary) Page 1 of 2 Statement of Grievance (continued) Alleged section of the Employee Handbook, City Policy Manual, or Workplace Safety Rule violation: Steps taken to informally resolve the issue and the results: Relief sought: Attach to this statement a copy of all documentation related to the grievance. Signature Dated this day of , 20_ Signature of Employee- Grievant Page 2 of 2