EDR Ruling #2001-Y

Issue: Qualification, Compensation/Leave: Salary Disputes, Ruling Date: February 21, 2001, Ruling #2001Y; Agency: Department of Corrections; Outcome: Not qualified.

The grievant has requested a ruling on whether his grievance initiated on October 3, 2000 with the Department of Corrections (DOC) qualifies for a hearing.¹ For the reasons set forth below, this grievance does not qualify for a hearing.

The grievant was hired on January 10, 2000. He claims that he was informed during his orientation that he would receive a one-step pay increase upon his completion of a 6-month probationary period.² On or about September 16, 2000, the grievant received a paycheck that reflected the promised one-step pay increase. The agency subsequently informed the grievant that the increase was erroneously added to his paycheck and that, contrary to earlier indications, he was not eligible for the one-step increase. The additional (erroneous) pay contained in the September 16th paycheck was deducted from his next paycheck and the grievant was ultimately denied the promised one-step increase.

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.³ Therefore, claims relating to issues such as the establishment and revision of wages, salaries, or general benefits and the contents of established personnel policies, procedures, rules and regulations generally do not qualify for hearing, unless the grievant presents evidence raising a sufficient question as to whether discrimination, retaliation, or discipline may have improperly influenced management's decision, or whether state policy may have been misapplied.⁴ In this case, the grievant alleges that DOC violated policy by not granting the grievant a one-step pay increase after it erroneously promised him one.

For a claim of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy. The controlling policy in this grievance is DHRM Policy No. 1.45. DHRM Policy No. 1.45⁵ states that "[e]mployees with hire dates of November 1 through April 30, and who are scheduled to complete their probationary period prior to November 1, will receive official performance evaluations and will be eligible for incentive increases as set forth in Policy 1.40, Performance Planning and Evaluation."⁶ For employees hired between November 1 and April 30 who are scheduled to complete their probationary period prior to November 1, there is no provision under state policy that allows for a one-step increase based upon successful completion of a probationary period. However, "[e]mployees with hire dates on or after May 1, but before November 1, and those hired November 1 through April 30, who remain on probation as of November 1" are eligible for one step increases if they receive ratings of "Meets Expectations" on their six-month Probationary Progress Review forms.⁷

If, as the grievant claims, DOC informed him that he was eligible for a one-step pay increase, then the grievant was misinformed. The section of DHRM Policy No. 1.45 that applies in this case is (C)(1) -- the grievant was hired on January 10, 2000 (which falls between November 1 and April 30), and he was scheduled to complete his probationary period on August 10 (well prior to November 1). Because the grievant was subject to Section (C)(1), he was not entitled to a step increase when he completed his probationary period.

While DOC's error was admittedly unfortunate, there was no provision under DHRM policy for DOC to award the grievant a one-step pay increase. To give him such an increase would itself have been tantamount to a misapplication of policy. Accordingly, this Department concludes that DOC's action in not awarding the grievant a one-step increase did not violate a mandatory policy provision nor was it so unfair as to amount to a disregard of the intent of the applicable policy.⁸ Therefore, this grievance does not qualify for hearing.

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, please notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court's decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

¹ Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. If a grievance was filed on or after July 1, 2000, the grievance will be governed by the new procedure (Grievance Procedure Manual, effective July 1, 2000). If a grievance was filed before July 1, 2000, the grievance will be governed by the old procedure (Grievance Procedure, effective July 1, 1995, as amended July 1, 1999). Because this grievance was initiated after July 1, 2000, this ruling is issued in accordance with the rules contained in the new procedure manual. Please also note that effective July 1, 2000, this Department's name was changed from the Department of Employee Relations Counselors to the Department of Employment Dispute Resolution (EDR), and the Department of Personnel and Training (DPT) became the Department of Human Resource Management (DHRM).
² The step respondents neither confirm nor deny that such a promise was made, indicating only that the grievant may have misunderstood the information provided to him at orientation. See First Step Response, dated October 10, 2000.
³ Va. Code § 2.1-116.06(B).
⁴ Va. Code § 2.116(A) and (C); Grievance Procedure Manual § 4.1, pages 10-11.
⁵ DHRM Policy No. 1.45 was recently updated, with an effective date of September 9, 2000. Because you were hired on January 10, 2000 and because your probationary period was completed prior to September 25, 2000, the applicable policy is DHRM Policy No. 1.45 with an effective date of September 16, 1993.
⁶ DHRM Policy No. 1.45 VIII (C)(1)(emphasis in original).
⁷ DHRM Policy No. 1.45 VIII (C)(2)(emphasis in original).
⁸ Significantly, it does not appear as though the grievant accepted his position with DOC in reliance upon DOC's erroneous representation regarding the step increase because he first received this misinformation during orientation.