September 27, 2022

Volume XII, Number 270


September 26, 2022

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School District Grievance Procedure Provisions to Immediately Review

Following publication of our recent Legal Update discussing the statewide surge of workplace safety grievances, we have received many questions regarding which grievance procedure provisions deserve immediate attention to best prepare for a potential grievance. While each district’s grievance procedure may contain procedures or provisions unique to itself, there are a few core provisions that should be included within all grievance procedures for purposes of providing a fair, effective, and efficient grievance process.

The first grievance procedure section deserving of immediate attention is the definitions section. It is critical to clearly define the individuals eligible to invoke the procedure, limiting use of the grievance procedure to only individual employees, as opposed to a class of grievants or a union representative. While the procedure should permit the employer to combine grievances that are similar in nature, the combining of grievances should be solely reserved to the employer and not be interpreted as allowing a group of employees to file a “class action” grievance.

It is also important to clearly define the scope of what constitutes grievable discipline, termination, and workplace safety violations. For example, a grievance procedure should explicitly identify which types of employment actions constitute grievable discipline and which employment actions do not (e.g., counseling sessions and performance improvement plans are non-disciplinary actions that should not be subject to the grievance procedure). Terminations should be defined to exclude actions such as layoffs. Likewise, the applicable safety standards for evaluating a workplace safety violation should also be clearly defined within the procedure (e.g., any violation of the district’s safety and health program developed under Wis. Admin. Code. SPS § 332.203). These clear definitions will allow the district, employees, and an impartial hearing officer (“IHO”) to clearly understand what is and is not within the jurisdiction of the grievance procedure.

Another grievance procedure section that should be immediately reviewed is the scope of the IHO’s authority. School districts should consider the following in how they want an IHO to preside over a hearing:

  • the IHO’s ability to dismiss untimely or otherwise procedurally defective grievances

  • the standard of review the IHO shall apply to workplace safety or discipline grievances

  • whether the rules of evidence are to be strictly followed during a hearing

  • whether a hearing must occur or whether written submissions could be accepted in lieu of a hearing

  • whether the hearing must be closed or open to the public

  • whether the direct testimony of students will be permitted

  • other similar considerations

Districts should also identify within the procedure who selects the IHO and when that selection is to occur. Implementing these guidelines will provide a cleaner and easier process for all involved; however, districts must ensure that the guidelines are workable within the construct of a grievance procedure. For example, districts should avoid implementing a “just cause” standard for a workplace safety grievance, because that standard is incompatible with the facts and circumstances giving rise to safety grievances and may cause a grievance procedure to become ineffectual.

In addition, Wis. Stat. § 66.0509(1m) requires that the school board is the last level of appeal and indicates the board’s decision should be the final decision under the procedure. The review by the school board should be limited to the record established before the IHO, should not involve a hearing, and should be held in closed session.

Finally, districts may wish to consider inserting a cost-sharing requirement into grievance procedures, such as requiring the employee and employer to each pay fifty-percent of the cost of an IHO should an employee appeal a grievance to that step of the process. Cost-sharing provisions can be helpful in minimizing the number of grievants who appeal their grievance all the way through the grievance procedure, as many grievants may not feel strongly enough to appeal their respective grievance to an IHO if they have to share in the costs of doing so. These provisions also assist with offsetting a district’s costs, especially if workplace safety grievances have been filed by numerous employees.

We encourage school districts to proactively address these and other provisions within their grievance procedures, both internally and with counsel, to ensure their district is best positioned to limit its grievance procedure to only legitimate grievances and to address those legitimate grievances in an effective and efficient manner. 

©2022 von Briesen & Roper, s.cNational Law Review, Volume X, Number 330

About this Author

Kyle Gulya, von Briesen Roper Law Firm, Madison, Corporate, Labor and Employment Law Attorney

Kyle Gulya is a Shareholder and Chair of the Government Law Group. Kyle advises both public and private sector employers with employment- and labor-related issues including regulatory compliance, anti-discrimination practices, contractual and workplace policy matters, and personnel management. He handles numerous aspects of labor-management relations from advising clients during union organizing campaigns to serving as chief negotiator during collective bargaining negotiations. He also advises clients regarding complex internal investigations and effectively resolving...

Ryan P. Heiden, von Briesen Roper Law Firm, Milwaukee, Labor and Employment Law Attorney

Ryan Heiden is a member of the Government Law Group where he focuses his practice on school law and public sector labor and employment issues.

Ryan helps public sector employers navigate and minimize risk with respect to a wide range of complex and sensitive labor and employment issues by providing employers with trusted and practical guidance. Ryan routinely provides counsel related to anti-discrimination practices, employee medical issues, wage and hour matters, internal investigations, employee discipline, and crisis management. He also...

James R. Macy, von Briesen Roper Law Firm, Oshkosh, Labor and Employment Law Attorney

Jim Macy represents employers in all aspects of employment law including labor negotiations, discrimination defense, disability and ADA issues, wrongful discharge or employment contract disputes, non-competition issues and other difficult personnel transactions. He drafts employment agreements and negotiates employment severances. He represents employers of all sizes, including those with union and non-union workforces as well as police and fire departments.

Jim is Chair of the School Law Section and he represents numerous school districts...