Current through Rules and Regulations filed through March 20, 2024
(1)
Introduction:
The State is committed to creating and maintaining a positive
work environment in which employees are treated with professionalism, civility
and respect. When workplace issues arise due to problems, misunderstandings, or
frustrations, it is the State's intent to be responsive to employees and their
concerns.
While many situations pose potential workplace issues,
incidents of sexual harassment present unique challenges which warrant special
emphasis and implementation of a particularized approach to the prevention,
detection, and elimination of sexual harassment from the state workplace.
Therefore, in accordance with Executive Order 01.14.19.02, Executive Branch
agencies shall receive, process, and investigate complaints and reports of
sexual harassment and connected retaliation based on the procedures provided in
the Statewide Sexual Harassment Policy. Please refer to the Statewide Policy
for specific information regarding the reporting and handling of sexual
harassment complaints and reports.
To encourage effective operations and a productive workforce,
each agency will implement a complaint resolution program to address employee
concerns that are unrelated to sexual harassment.
(a) To ensure that employees have access to
fair and timely consideration of their concerns, agencies must make available,
as a minimum part of their complaint resolution program, the Employee Complaint
Resolution Procedure outlined in this Rule.
(b) Employees and their respective
supervisors are encouraged to make reasonable efforts to resolve concerns prior
to utilizing the formal Employee Complaint Resolution Procedure.
(c) No employee will be penalized, formally
or informally, for voicing a complaint in a reasonable, businesslike manner, or
for participating in an established complaint resolution process. Anyone who
intentionally supplies false or misleading information in connection with a
complaint or anyone who attempts to or actually harasses, intimidates, or
retaliates against an employee for using the Employee Complaint Resolution
Procedure or for providing information in connection with a complaint will be
subject to disciplinary action, up to and including termination of
employment.
(2)
Applicability:
This Rule applies to Executive Branch employers, local
departments of public health, and community service boards. It does not apply
to other public corporations, authorities, or the Board of Regents of the
University System of Georgia.
(3)
Definitions:
For the purposes of this Rule, the following terms and
definitions apply in addition to those in Rule
478-1-.02 (Terms and
Definitions):
(a) "Agency Complaint
Resolution Coordinator" means the person, designated to be responsible for
receiving complaints, determining eligibility for the Employee Complaint
Resolution Procedure, and tracking the processing of complaints.
(b) "Agency Complaint Review Official" means
an impartial individual designated by the agency to conduct complaint
reviews.
(c) "Filing" means the act
of an employee submitting a complaint to the Agency Complaint Resolution
Coordinator.
(d) "Complaint" means
a claim filed by an eligible employee that the employee's personal employment
has been affected by unfavorable employment decisions or conditions due to
unfair treatment.
(e) "Complaint
Form" means a form provided by the agency for the filing of employee
complaints.
(f) "Harassment" means
physical, verbal, or non-verbal/visual conduct that is either directed toward
an individual or reasonably offensive to an individual because of his or her
race, color, national origin, religion, age, disability, genetic information,
sex (which does not meet the definition of sexual harassment set forth in
Section (3) of this Rule), political affiliation, protected uniformed service,
or legally protected category other than sex.
(g) "Receipt" means the date and time at
which a document is delivered to the addressee by mail, electronic
transmission, or personal delivery.
(h) "Retaliation" means an act or omission
intended to, or having the reasonably foreseeable effect of, punishing or
otherwise impacting an individual for submitting (or assisting with submitting)
a complaint or reporting discrimination or harassment, for participating in a
discrimination or harassment investigation or proceeding, or for otherwise
opposing discrimination or harassment.
(i) "Sexual harassment" means physical,
verbal, or non-verbal/visual conduct that is either directed toward an
individual or reasonably offensive to an individual because of his or her sex.
Therefore, for purposes of this Rule,"sexual harassment" includes physical,
verbal, or non-verbal/visual conduct constituting
1. unwanted sexual attention, sexual
advances, requests for sexual favors, sexually explicit comments, and other
conduct of an expressed or obviously implied sexual nature, by an individual
who knows, or reasonably should know, that such conduct is unwanted or
offensive; and
2. conduct that is
hostile, threatening, derogatory, demeaning, or abusive or intended to insult,
embarrass, belittle, or humiliate an individual because of his or her sex,
regardless of whether the underlying reason for the conduct is
apparent.
(j) "Workday"
means a Monday through Friday business day exclusive of state
holidays.
(4)
Notice Requirement:
Each state agency is responsible for facilitating employee
awareness of the Employee Complaint Resolution Procedure. Information about the
procedure including deadlines for filing a formal complaint and who to contact
for assistance must be provided in one or more formats through which employee
information is typically communicated.
(5)
Eligible Employees:
(a) Any employee may use the Employee
Complaint Resolution Procedure for timely-filed, eligible issues, except an
employee who
1. has been notified of
separation from employment or
2. is
seeking relief on the same matter through other administrative or judicial
procedures.
(b) A
complaint filed by an eligible employee prior to becoming ineligible will cease
to be processed through this procedure upon the employee's separation from
employment or upon the employee's filing for relief on the same matter through
another administrative process or a judicial process.
(6)
Eligible Issues:
An employee may use the Employee Complaint Resolution Procedure
to address a complaint related to any
(a) allegation of unlawful discrimination
based on race, color, national origin, religion, age, disability, genetic
information, sex (which does not meet the definition of sexual harassment set
forth in Section (3) of this Rule), political affiliation, protected uniformed
service, or other legally protected category;
(b) allegation of unlawful harassment other
than sexual harassment;
(c)
retaliation for participating in the Employee Complaint Resolution
Procedure;
(d) retaliation or
intimidation for exercising any right under the Rules of the State Personnel
Board or policies of the agency;
(e) erroneous, arbitrary, or capricious
interpretation or application of policies, procedures, rules, regulations,
ordinances, or statutes;
(f) unsafe
or unhealthy working condition(s);
(g) any matter specifically included as
eligible by an agency's policies or procedures; or
(h) for classified employees only, written
reprimand or written confirmation of an oral reprimand.
(7)
Ineligible Issues:
An employee cannot use the Employee Complaint Resolution
Procedure to address a complaint of or related to
(a) sexual harassment or related retaliation
(which shall be handled under the procedures provided in the Statewide Sexual
Harassment Prevention Policy);
(b)
unlawful discrimination containing allegations of sexual harassment (such
complaints will be handled under the procedures provided in the Statewide
Sexual Harassment Prevention Policy);
(c) suspension, demotion, salary reduction,
or separation from employment that is not retaliatory;
(d) issues that are pending or have been
adjudicated by the State Personnel Board, the Georgia Commission on Equal
Opportunity, or through other state or federal administrative or judicial
procedures;
(e) issues that are
subject to appeal, review, or relief as provided for in other agency policies
and procedures;
(f) performance
expectations and evaluations;
(g)
actions implementing a reduction in force or furlough plan;
(h) selection of an individual to fill a
position, unless an allegation is made that the selection violates an
applicable law, regulation, State Personnel Board Rule, or agency
policy;
(i) permanent changes in
work hours or duties and responsibilities, unless a change is unsafe or
unlawful;
(j) temporary work
assignments that do not exceed 90 days;
(k) budget and organizational structure,
including the number or assignment of positions in any organizational
unit;
(l) relocation of employees,
unless the relocation qualifies for reimbursement under Office of Planning and
Budget regulations;
(m) internal
security practices established by the agency;
(n) for unclassified employees only, written
reprimand or confirmation of an oral reprimand, or
(o) any matter that is not within the
jurisdiction or control of the agency.
(8)
Filing a Complaint:
(a) An employee accesses the Employee
Complaint Resolution Procedure by timely filing a complaint with the Agency
Complaint Resolution Coordinator.
(b) The complaint must be filed in a format
acceptable to the agency, which may be on a designated agency complaint
form.
(c) A complaint is considered
received on the day it is delivered to the Agency Complaint Resolution
Coordinator by mail, electronic transmission, or personal delivery.
(d) The complaint must identify at a minimum
1. the eligible issue(s) involved;
2. the parties involved;
3. the date(s) the incident(s) or
violation(s) occurred (if known);
4. how the employee was unfavorably affected
or treated;
5. the relief sought;
and
6. any policy, procedure, rule,
regulation, ordinance, or statute at issue and how it was erroneously
interpreted or applied.
(e) Time Limit for Filing a Complaint
A complaint must be filed within 10 workdays of the occurrence
of the subject of the complaint or within 10 workdays of the date the employee
becomes aware or should have reasonably been aware of the problem. The Agency
Complaint Resolution Coordinator has the discretion to grant a waiver or extend
the filing deadline.
(9)
Processing a Complaint:
(a) Initial Eligibility Determination
Within 10 workdays of receiving a complaint, the Agency
Complaint Resolution Coordinator will review the complaint to determine the
timeliness and eligibility of the issue(s) and provide a written determination
to the complaining employee.
1. If the
issue is not eligible to proceed through the Employee Complaint Resolution
Procedure, the written determination will include the specific reasons for the
determination and notice that the formal complaint process is being terminated
(or if the complaint is related to sexual harassment, notice will be given to
explain that the complaint will be handled under the Statewide Sexual
Harassment Prevention Policy).
2.
If the issue is eligible, the written determination will specify the manner in
which the complaint will be processed (i.e., through the Employee Complaint
Resolution Procedure or through a separate agency procedure for addressing
allegations of unlawful discrimination and/or harassment). A copy of the
determination will be provided to the first level of supervision having the
authority to grant the requested relief.
(b) Options for Processing Unlawful
Discrimination/Harassment Complaints
When a complaint involves allegations of unlawful
discrimination and/or harassment based on race, color, national origin,
religion, age, disability, sex (which does not meet the definition of sexual
harassment set forth in Section (2) of this Rule), genetic information,
political affiliation, protected uniformed service, or other legally protected
category, the Agency Complaint Resolution Coordinator will process the
complaint in one of three ways:
1.
Allow the complaint to proceed as set forth in this Rule.
2. Investigate the complaint according to an
agency procedure specifically designed to address an unlawful discrimination
and/or harassment complaint (other than a complaint of sexual harassment or
related retaliation). The time limit for determining eligibility and processing
a complaint through such procedure must not exceed 120 calendar days.
3. Advise the employee in writing that the
agency has concluded processing the complaint and that the employee may present
the matter to the Georgia Commission on Equal Opportunity or the Equal
Employment Opportunity Commission.
(c) Complaint Review Process
1. Each state entity will appoint an Agency
Complaint Review Official to review the complaint.
2. Within 15 workdays of appointment, the
Agency Complaint Review Official will conduct a review of the
complaint.
3. The Agency Complaint
Review Official has discretion regarding how to conduct the review and may do
any of the following:
(i) base the review
solely on written statements and documents provided;
(ii) interview the employee, witnesses, and
others;
(iii) meet with the parties
to facilitate an agreement;
(iv)
clarify and/or interpret relevant law, rule, policy, procedure, etc.;
or
(v) explore alternative
resolutions.
4. If the
parties resolve the issue(s) during the complaint review process, the Agency
Complaint Resolution Coordinator will provide written notice to the complaining
employee and supervisor confirming resolution and the conclusion of the
Employee Complaint Resolution Procedure.
5. If the parties do not resolve the issue(s)
during the complaint review process, the Agency Complaint Review Official will
issue written findings and recommendations to the Agency Head or designee. The
Agency Head or designee will then issue a written decision regarding the
complaint and requested relief. Such decision will be final and will conclude
the Employee Complaint Resolution Procedure.
6. The maximum time for determining
eligibility and processing a complaint through the Employee Complaint
Resolution Procedure is 90 calendar days. Agencies in their discretion may
adopt more specific time frames within this 90-day period. This time frame is
extended to 120 calendar days when a complaint is processed through an agency
unlawful discrimination/harassment procedure. Complaints of sexual harassment
or related retaliation shall be investigated in accordance with the time frames
and procedures referenced in the Statewide Policy.
(10)
Extension of Time
Limits:
Upon the agreement of all parties to a complaint, any time
limit specified in this Rule may be extended. The Agency Complaint Resolution
Coordinator or Agency Complaint Review Official may unilaterally extend any
time limit specified in this Rule due to emergency, medical disability, legally
mandated absence on the part of a relevant party involved with the complaint
issues or review process, or due to operational necessity. The employee shall
be immediately notified of the period of extension and the reasons
therefor.
(11)
Preparation Time:
(a) An employee
utilizing the Employee Complaint Resolution Procedure will be excused from duty
for up to four hours during regular work hours, as approved by the supervisor,
to prepare a complaint. Such preparation time is without loss of pay or leave
credits. Preparation time includes time spent reviewing the employee's
personnel file, preparing a complaint, and meeting with witnesses. Meetings
with the Agency Complaint Review Official are considered work time and do not
count as preparation time.
(b) No
more than 12 hours of regular work hours per employee per calendar year will be
permitted for preparation time associated with complaints.
(c) Employees using the Employee Complaint
Resolution Procedure must obtain supervisory approval before using preparation
time during regular work hours. A request to prepare during a particular time
may be denied due to operational or other business needs.
(d) The Agency Complaint Resolution
Coordinator has the authority to resolve any dispute regarding the
determination of reasonable and necessary time for preparing a complaint and
participating in the process.
(12)
Group Complaints:
Employees having a common complaint may sign and submit one
group complaint, identifying up to two of the employees as selected
spokespersons for the group. Employees who choose to file a group complaint
waive their individual rights to file separate complaints on the same
subject.
(13)
Consolidating Complaints:
(a) The
Agency Complaint Resolution Coordinator may consolidate multiple complaints
filed by an employee into a single complaint.
(b) The Agency Complaint Resolution
Coordinator may consolidate separate complaints filed by two or more employees
regarding the same issue(s) into a group complaint.
(14)
Assistance:
An employee who needs assistance in filing or processing a
complaint may contact the Agency Complaint Resolution Coordinator or other
agency-designated official. In no case shall the staff assigned to assist an
employee be a party or respondent to the employee's complaint. Any complaint
that the agency determines to fall within the definition of "sexual harassment"
outlined in Section (3) of this Rule must be processed in accordance with the
Statewide Sexual Harassment Prevention Policy.
(15)
Withdrawal of Complaint:
An employee may voluntarily withdraw his/her complaint at any
point during the process by submitting a request in writing to the Agency
Complaint Resolution Coordinator. A complaint that is withdrawn may not be
re-filed.
(16)
Appeal
Rights for Classified Employees:
(a)
Upon receipt of the agency's final decision on a complaint and provided remedy
is not available through the Georgia Commission on Equal Opportunity, a
classified employee may file an appeal in writing with the Office of State
Administrative Hearings if
1. the employee is
not satisfied with the agency's final decision on the merit of a complaint
alleging violation of the Rules of the State Personnel Board;
2. the employee is not satisfied with the
agency's final decision on a complaint related to relocation, alleged unlawful
discrimination, or alleged unjust coercion or reprisal because of an appeal or
internal complaint proceeding; or,
3. the employee believes the agency violated
the procedure outlined in Rule 20, Employee Complaint Resolution Procedure,
while processing the complaint.
(b) The appeal must be filed or postmarked
within 10 calendar days of receipt of the agency's final decision on the
complaint. Untimely appeals will not be processed.
(c) The appeal must include the specific
provision(s) of the Rules alleged to have been violated and any documentation
that would support the allegation.
(17)
Recordkeeping and Reporting
Requirements:
(a) Agencies must
maintain a record of each complaint filed through the Employee Complaint
Resolution Procedure, including the nature and disposition of the complaint,
for a minimum of four years for complaints alleging discrimination or
harassment based on race and for two years for all other complaints.
(b) Each agency shall file an annual report
with the Department of Administrative Services (DOAS) reflecting the number,
nature, and disposition of complaints filed through the Employee Complaint
Resolution Procedure. DOAS shall establish further reporting guidance to
facilitate the intent of this Section.
: O.C.G.A. §§
45-20-3, 45-20-3.1, 45-20-4, 45-20-9.
