DOJ Policy Statement 1200.31 - Administrative Grievance Procedure

Action Log

Issuing component must review its DOJ directives, at minimum, every 5 years and make revisions as necessary. The action log records dates of approval, recertification, and cancellation, as well as major and minor revisions to this directive and provides a summary of all revisions. In the event this directive is canceled, superseded, or supersedes another directive, that will also be noted in the action log.

Table of Contents

• Action Log
• Definitions
• Acronyms
• I. Policy
• II. Coverage and Procedures
• III. Roles and Responsibilities

Definitions

Acronyms

1. Policy

   This Department of Justice (DOJ or Department) policy statement provides guidance on the procedures governing grievances filed by non-bargaining unit employees.

2. Coverage and Procedures
   1. Employees covered by a collective bargaining agreement which contains a negotiated grievance procedure are covered by this policy only with respect to matters that are specifically excluded from the negotiated grievance procedure and within the scope of this policy. This policy applies to any matter of concern or dissatisfaction relating to the employment of non-bargaining unit employees where the personal relief sought is subject to the control of management officials of the Department, except the following:
      1. The content of established agency regulations and policy;
      2. Any matter that the employee could have grieved under a negotiated grievance procedure under 5 U.S.C. § 7121;
      3. Any matter appealable to the Merit System Protection Board;
      4. Any matter subject to final administrative review by the Office of Personnel Management;
      5. Any matter subject to final review and adjudication by the Equal Employment Opportunity Commission;
      6. Any matter subject to final review and adjudication by the Federal Labor Relations Authority;
      7. Non-selection for promotion from a group of properly ranked and certified candidates or failure to receive a noncompetitive promotion;
      8. A warning, counseling, or notice of a proposed action which, if effected, would be covered under the grievance procedure, or excluded by II.A.2 or II.A.3 (including the placement on, as well as the substance of, a performance improvement plan);
      9. The performance evaluation of a Senior Executive Service (SES) appointee under 5 U.S.C., Chapter 43, subchapter II; the reassignment of an SES appointee following the appointee's receipt of an unsatisfactory rating under 5 U.S.C. § 4314; the return of an SES career appointee to the General Schedule or another pay system during the one-year period of probation or for less than fully successful executive performance under 5 U.S.C. § 3592, or for failure to be recertified under 5 U.S.C. § 3393a; the conditional recertification of an SES career appointee under 5 U.S.C. § 3393a; or the termination of an SES career appointee during probation for unacceptable performance under 5 C.F.R., Part 359, Subpart D;
      10. A termination of a probationer in accordance with 5 C.F.R, Part 315, Subpart H; a return of an employee serving supervisory or managerial probation to a nonsupervisory or nonmanagerial position in accordance with 5 C.F.R, Part 315, Subpart I; or a separation or termination of an employee during a probationary or trial period;
      11. The substance of performance elements and performance standards;
      12. The granting of, or failure to grant, an award under 5 C.F.R. Part 451; the adoption of, or failure to adopt, an employee suggestion or invention under 5 C.F.R. Part 451; the granting of, or failure to grant, an award of the rank of meritorious or distinguished executive to an SES career appointee under 5 U.S.C. § 4507, and 5 C.F.R., Part 451, Subpart B; the granting of, or failure to grant, a performance award for an SES career appointee under 5 U.S.C. § 5384, and 5 C.F.R., Part 534, Subpart D; or the receipt of, or failure to receive, a step increase under 5 U.S.C. § 5336;
      13. A decision to grant, or not to grant, an SES pay rate increase; a decision to grant, or not to grant, a pay rate increase under 5 U.S.C. 5376, and 5 C.F.R., Part 534, Subpart E; or a decision to grant, or not to grant, a pay adjustment under an administratively determined pay system;
      14. The payment of, or failure to pay, the amount of a recruitment incentive, a relocation incentive, a retention incentive, or a supervisory differential under 5 C.F.R. Part 575; the payment of, or failure to pay, the amount of critical position pay under 5 U.S.C. § 5377; the failure to request or grant an exception to the dual compensation restrictions under 5 C.F.R. Part 553; or the failure to pay the cybercrime incentive pay under 6 U.S.C. § 1534;
      15. The termination or expiration of a time-limited excepted appointment, a temporary or term appointment or promotion, or an SES limited emergency or limited term appointment, on the date specified as a condition of employment at the time the appointment or promotion was made; or the termination of a temporary or term promotion at any other time provided the employee was informed in advance of the temporary nature of the promotion and the employee was returned to his or her former position from which temporarily promoted or to a different position of equivalent grade and pay; and
      16. Any matter previously raised by the employee in another grievance, appeal, complaint, or other dispute resolution process.
   2. Employees covered by this policy statement have the right to present a grievance under the grievance procedure, and the appropriate component shall accept and process a properly presented grievance in accordance with this policy statement.
      1. No representative of management may restrain, interfere with, coerce, discriminate against, or take reprisal against employees who exercise their rights under this directive.
      2. In presenting a grievance employees have the right to be accompanied, represented, and advised by a representative of their own choosing and at their own expense, except that management may disallow the choice of representative for the following reasons:
         1. If the representative is an employee of the Department, management may disallow the representative if they cannot be spared from their official duties due to work requirements.
         2. If there is a conflict of interest between the representation functions and an employee's official duties.
      3. Employees may challenge the decision to disallow their choice of a representative by filing a protest with the Head of the Component or their designee (or with the Assistant Attorney General for Administration if the Head of Component has been involved in the decision to disallow the representative). The Head of Component or their designee, or the Assistant Attorney General for Administration (if appropriate), shall render a prompt decision on the matter.
   3. A grievant is entitled to a reasonable amount of official time to present a grievance.
      1. The employee's representative, if an employee of the Department, is also entitled to a reasonable amount of official time to present the grievance.
      2. Time for presentation of the grievance shall include time for drafting a statement, reviewing of appropriate records and regulations to the extent they cannot be secured or reviewed during non-duty hours, and for discussions with officials and witnesses of the Department involved with the grievance.
      3. The amount of official time allowed shall be determined solely by management and shall not exceed 8 hours for the grievant and 8 hours for a representative who is a DOJ employee. The official time allowed is 8 hours for the entire process as there is not an additional 8 hours to review the grievance response and reply.
      4. Arrangements for use of official time must be coordinated with, and approved by, the grievant’s and representative's supervisors prior to the use of any official time.
   4. To file a grievance, an employee must:
      1. Present a grievance concerning a particular act or occurrence not later than 15 calendar days after the date of the act or occurrence; or
      2. Present a grievance concerning a particular act or occurrence not later than 15 calendar days after the date on which the employee knew, or had reason to know, of the act or occurrence.
      3. Unless the grievance official is otherwise identified, grievances must be filed by the grievant with his or her second-level supervisor and must be in writing. If the second-level supervisor either lacks authority to provide the requested relief or was directly involved in the causal act or occurrence, they shall refer the grievance to an appropriate grievance official and notify the grievant in writing.
      4. The grievance shall:
         1. Contain sufficient detail to clearly identify the basis for the grievance;
         2. Specify the personal relief requested by the grievant;
         3. Identify the grievant’s representative, if any; and
         4. Be signed by the grievant.
   5. The grievance official shall review the grievance and issue a decision.
      1. The grievance official may consult with the grievant and/or any other individuals who the grievance official believes can help resolve the grievance, and must keep a written record of any such consultations in the grievance file.
      2. The grievance official will issue a decision, in writing, normally within 30 calendar days after the filing of the grievance.
      3. If necessary, the grievance official may extend the time limit for issuing a decision. The grievance official will notify the grievant and/or the grievant’ s representative, in writing, of any such extension and will issue the decision as soon as practicable thereafter.
      4. Once the grievance official issues the decision, the grievant has no further right to administrative review.
   6. The grievance official must be at a management level consistent with good administration and existing delegation of authority. That level is determined solely by management.
   7. A grievance may be rejected (without consideration of the merits) if:
      1. The grievance was not filed within the specified time limits and no good cause, as determined by the grievance official, would justify the late filing.
      2. The grievance involves a matter or matters excluded from coverage of the grievance procedure.
      3. No specific personal relief is requested.
      4. The remedy requested by the grievant would not directly affect the employment conditions of the grievant.
      5. The grievance does not contain sufficient detail to identify the basis for the grievance.
   8. There is no right to refile a claim that is rejected.
   9. The issue(s) and remedy identified in the grievance may not be changed, modified, or altered at later stages of the process except for when the grievant and grievance official agree it can be changed, modified, or altered.
   10. The grievant and/or representative may withdraw a grievance in writing at any time.
   11. Grievance decisions are final and there is no appeal/reconsideration.
3. Roles and Responsibilities
   1. The Assistant Attorney General for Administration:
      1. Has the authority to correct any personnel action taken in the Department, except for those taken in the Office of the Inspector General, which gives rise to a grievance under this directive.
   2. Heads of Components, or their designees, with respect to employees under their authority, must:
      1. Issue implementing instructions in conformance with this directive.
      2. Ensure that employees are advised of their rights under this directive.
      3. Ensure the timely processing of grievances.
      4. Make decisions on grievances when appropriate.
   3. Managers and Supervisors must:
      1. Attempt to resolve issues before they reach the grievance stage.
      2. Ensure the fair and equitable processing of grievances.