Policy Number: 04.03
Issued Date: 07/01/2006
Duke is committed to fair and equitable treatment for all staff. Duke has established this procedure for fair, orderly, and prompt resolution of disagreements. Any claim arising out of or relating to employment policies will be settled in accordance with this procedure. The arbitration step of this procedure will be governed by the United States Arbitration Act. Both the staff member and Duke are required to utilize this procedure to resolve disagreements falling within its scope.
- Staff Participation
- Time Standards
- Staff Member's Rights
- Process Steps
- Procedure Flowchart (PDF)
Disagreements are normal and sometimes even healthy for an organization. People should feel free to respectfully express differences of opinion and constructively address and resolve them. Duke realizes that there will be times when a complaint cannot be resolved without some formal dispute resolution process. While most disagreements can be solved informally, some are complex and deserve additional dedicated and trained resources to assist and support all involved to find resolution.
All regular staff (hourly-paid and monthly-salaried), who have successfully completed the 90-day orientation and evaluation period of employment, are eligible to use the Dispute Resolution Procedure when policy disagreements arise. This procedure does not cover temporary staff, or any staff member covered by a labor agreement.
The filing of or participation in a dispute resolution will not cause any negative reflection on the individual staff member or any individual participating in the process nor will it affect future employment, compensation or work assignments at Duke. Any staff member who brings forth a dispute or is called, as a witness in the dispute will not experience loss of pay for the time spent in any hearing held during the staff member's regular work schedule.
This procedure applies to any application, meaning or interpretation of personnel policies or procedures as they affect work activities. Any claim based in whole or in part on federal, state or local laws whether statutory or common law will be addressed through this procedure. Staff with complaints of harassment or discrimination may at the option of the staff member initiate their complaints under the Harassment Policy, which is administered by the Office for Institutional Equity. Issues related to job classifications and annual performance evaluations will not be processed through this procedure. Issues related to employer-sponsored benefit plans will be subject to the dispute resolution procedures set forth in the plan documents (including but not limited to the plan, the summary plan description, and any applicable contracts or agreements), in lieu of this procedure.
The time standards provided in this procedure may be extended by mutual agreement between the staff member and his or her supervisor. Such agreement may be facilitated by a Staff and Labor Relations representative and will not be unreasonably withheld by either party.
Staff Member's Rights with Corrective Actions and the Dispute Resolution Process
In circumstances in which the staff member believes the corrective action policy has not been appropriately followed, he or she should contact the department head, the entity or department Human Resources representative, and a Staff and Labor Relations representative for assistance in trying to resolve the problem.
Staff have the right to file a formal grievance using the Dispute Resolution Process in order (1) to appeal any formal corrective action such as written warnings, final written warnings, or terminations; or, (2) to appeal an employment decision that the staff member believes to be discrimination based upon his or her age, color, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex, sexual orientation, or veteran status.
Staff cannot file a formal grievance using the Dispute Resolution Process for reasons of (1) disagreement with a performance evaluation rating or (2) as result of a job classification or reclassification. Any disagreement with performance ratings or job classifications should be reviewed by the staff member’s department. The staff member should discuss these circumstances with his or her supervisor’s supervisor.
Dispute Resolution Process Steps
Step I: Face to Face Discussion
- Staff who believe that an employment policy has not been followed are encouraged to try to reach a resolution with their supervisor. In the event the Staff member and the supervisor are unable to resolve the dispute, the staff must contact the Office of Staff and Labor Relations within ten (10) calendar days from the time of the incident causing the dispute.
- Note: Disputes involving involuntary separation from employment will begin at the Department Head Level of the Dispute Resolution Procedure.
- Once contacted the Staff and Labor Relations Representative will convene both the staff member and the supervisor in an attempt to clarify and resolve the dispute.
- In the event the staff member and the supervisor are unable to resolve the dispute informally, the staff member and the supervisor will complete a Dispute Resolution Effort form outlining the dispute and the efforts made to resolve the dispute. Next the staff member, supervisor, and a Staff and Labor Relations Representative will meet with the Department Head, discuss the dispute and attempt to resolve the issue. If the issue is still unresolved the Department Head will sign the Dispute Resolution Effort form and the staff member may move to the next phase of the process.
- The staff member may request the dispute be referred to the Dispute Review Panel. The staff member must make the request for the Dispute Review Panel to the Director of Human Resources/Staff and Labor Relations or his/her designate within fifteen (15) calendar days of the incident giving rise to the dispute or problem.
IA. Mediation - This is not a required step but may be used if both parties agree. Before and after step one of the dispute resolution procedure, the parties may agree to refer the issue to mediation by filing a request with the Director of Staff and Labor Relations. The purpose of mediation is to achieve through mutual efforts of both parties, a suitable resolution to the existing dispute. Where applicable and by mutual agreement, the Dispute Resolution Panel will be delayed for 15 calendar days for parties to participate in mediation.
- A representative from the Office of Human Resources or, in cases dealing with alleged discrimination, a representative from the Office for Institutional Equity will facilitate the mediation process.
- Mediators will be assigned from a panel of qualified individuals.
- The role of the mediator is to guide the disputants through a discussion of their problem, the issues that need to be resolved and alternative solutions for the resolution of the dispute.
- The parties then decide whether and how to settle the dispute.
Step II: Dispute Review Panel
All unresolved disputes may be submitted for review to the Dispute Review Panel.
- Three Duke staff members will serve as an internal Dispute Review Panel. Staff and Labor Relations will select three panel members from a list of trained, qualified individuals who are diverse in race, gender, job classification, and employment level.
- No panel member may be employed by the same department as the staff member filing the complaint.
- Copies of any documents that either party wishes to use to support the action taken must be provided to the other party no later than five working days prior to the Dispute Review Panel.
- The review must be held within 15 working days from the time the application form is received by the office of Human Resources. The panel will review all information presented and offer a joint recommendation for action no later than 15 working days after the close of the hearing.
- The panel’s written recommendation for action will be forwarded for review to the appropriate senior leader - either the vice president, vice chancellor, dean, chairman, chief executive officer, chief financial officer, chief operating officer, executive director, or senior associate operating officer and to the director of Staff and Labor Relations.
- The senior leader - in consultation with the director of Staff and Labor Relations - will render the final decision.
- In cases related to involuntary separation or allegations of harassment or discrimination, the recommendation for action will also be submitted to the Executive Vice President of Duke University, the Chancellor, the Provost or their designee. Review and final decision approval will then follow.
Step III: Arbitration
If the decision that is rendered as a result of the Dispute Panel Review leaves the dispute unresolved and if the dispute relates to or involves involuntary separation or includes allegations of sexual harassment or discrimination, the staff member may request an arbitration hearing.
- The arbitration hearing will be conducted by an outside arbitrator selected from a panel of neutral arbitrators assigned and administered by the American Arbitrators Association (AAA). The staff member must submit a letter to the director of Staff and Labor Relations in order to request an arbitration hearing within 14 calendar days from the date of issuance of the decision resulting from the review by the Dispute Review Panel. Individuals employed by Duke may not serve as arbitrators, nor will any person serve as arbitrator in a matter in which that person has any financial or personal interest in the result of the arbitration.
- The arbitrator will conduct a hearing to determine the relevant facts of the case. The arbitrator will render a written decision within a reasonable time following the hearing. If the arbitrator determines that the staff member was terminated in violation of the law or of Duke policy, the arbitrator may require reinstatement and/or back pay.
- For the period between termination and the date of final decision for reinstatement, money earned elsewhere by the staff member or paid in lieu of employment will be deducted from any Duke back pay. Duke will have the option of substituting severance pay and/or a comparable job in lieu of reinstatement – as subject to the terms and conditions set forth herein.
- There may be situations in which the staff member does not wish to return to work or Duke does not wish to reinstate the staff member. In such situations, either party may require the arbitrator to issue a supplementary award granting pay instead of reinstatement. In such a supplemental award, the arbitrator will be guided by the following pay calculation:
- the amount of front pay will be four weeks salary at the rate of pay in effect upon termination of employment. This rate will be paid for each completed year of credited service with Duke. Such severance pay will not exceed 104 weeks. Application for a supplementary award granting pay in lieu of reinstatement must be made to the arbitrator within 10 calendar days of receipt of the arbitrator’s decision.
Fees and Expenses:
The fees and expenses of the arbitrator will be paid by Duke. However, at the staff member’s sole option, he or she may need to share in payment of the fees and expenses. Postponement fees and expenses will be paid by the party causing the postponement of the hearing.
American Arbitration Association:
The arbitration hearing will be guided by the National Rules for the Resolution of Employment Disputes – as developed by the American Arbitration Association. Such rules will not be deemed as a part of the parties’ agreement to arbitrate but will serve as a procedural guide for the conduct of the hearing and for related matters. The provisions of this dispute resolution procedure will be deemed to be the entire agreement to arbitrate between the parties and will supersede and void any other agreement or rules that are materially inconsistent. Neither the arbitrator nor the American Arbitration Association will have the authority to add to, subtract from, or otherwise modify Duke policies – including but not limited to – this Dispute Resolution Procedure.
Effect of Arbitration:
The arbitrator’s decision – when made in accordance with his or her jurisdiction and authority as exclusively provided in this Dispute Resolution Procedure – will be final and binding between the parties as to all claims which were or could have been raised in connection with the dispute. This process will be to the full extent permitted by the United States Arbitration Act.
Only during an arbitration hearing can the staff member choose to be represented by an attorney.
- The staff member will be responsible for the selection and cost of this attorney. If the staff member chooses to be represented by an attorney he or she must also notify Human Resources or Staff and Labor Relations no later than fourteen (14) calendar days prior to the date of any scheduled arbitration hearing.
- In the event that the staff member chooses attorney representation, management may, in its discretion, seek representation by an attorney on its behalf as well.
In no case will an attorney represent management at the hearing when an attorney does not represent the staff member.