Your right to deal with employment concerns
Most employment concerns can be resolved informally. However, sometimes an informal attempt to resolve a problem is not enough. To address these situations, the Texas Constitution and the Texas Government Code grant all public employees the right to grieve.
A grievance is a formal complaint about an employment issue that district employees can file with their district. A grievance is a means for employees to get the attention of their administration to ensure problems are noticed and to give their district a chance to resolve those problems.
A grievant is the person or persons filing a grievance.
The grievance process is the district’s system that provides an employee with the opportunity to submit a complaint (grievance) and be heard by someone with the authority to resolve the complaint.
A grievance is very different from a lawsuit. In most cases, however, a district employee must attempt to resolve a complaint through the district’s grievance process prior to pursuing a lawsuit. This requirement to grieve first is known as exhaustion of administrative remedies, and failing to exhaust administrative remedies may prevent the employee from being able to pursue an issue in court later.
An informal complaint or meeting with a supervisor about a concern is generally not considered a grievance for the purpose of satisfying the exhaustion requirement. To be considered a grievance, employees must, at least generally, comply with the formal process set out by their district in local policy.
A public employee can file a grievance over any condition of work. The issue may but does not have to involve a claim that a law has been violated in order to be grievable.
Examples of grievable issues include but are not limited to:
- Errors in pay
- An undesired reassignment to a class or grade level
- Receipt of a negative evaluation (e.g., a written reprimand, an appraisal, a growth plan, etc.)
- Unprofessional behavior by a supervisor
- Termination of the employment of an at-will employee
An employee can only file a grievance about a situation that affects their own employment.
For example: An employee would not be able to use the employee grievance process to complain as a parent or to complain about an issue affecting a colleague but not that employee.
However, depending on the circumstances, a group grievance may be possible when a particular problem affects multiple employees in the same way.
Filing a grievance might not be the correct approach to resolving all employment-related problems. Other processes might be required for resolving specific types of issues. For instance, contract terminations, non-renewals and discrimination claims are usually handled under different processes.
Every Texas public school district has a local policy, approved by its school board, providing employees with the right to grieve and specifying the process employees should follow. The local policy is critically important because the district can generally “dismiss” a grievance that fails to follow the policy, and, as described above, this can result in a “failure to exhaust administrative remedies,” which can result in waiving legal rights.
Each district is required to make its policy available to its employees as well as the public under the Texas Public Information Act. A district’s local grievance policy is often included in the employee handbook or on the district’s website. If necessary, employees should be able to obtain a copy of any district policy at their administration office.
The policy should specify that an employee should not be retaliated against for exercising the right to file a grievance.
Employees are legally entitled to representation throughout the grievance process.
Timeline for filing
There are almost always strict and mandatory deadlines included in the grievance policy. The timeline for an employee to file a grievance can be found in the district’s local grievance policy, along with how the district defines “days” for purposes of that timeline (e.g., calendar days or district business days).
In most districts, the grievance timelines are quite short. Typically, a grievance must be submitted within 10 or 15 calendar or business days from the date the employee first knew or should have known of the problem about which the grievance is being filed. Verbal notice of an action, such as a reassignment or pay cut, is often sufficient to trigger a grievance timeline.Usual steps/levels
- The grievance process should also be outlined in detail in that district’s local grievance policy. Grievance policies commonly require employees to submit grievances in writing to a certain administrator within the specified timeline using a form provided by the district. The form will usually ask for the grievant’s contact information, a description of what occurred or what the complaint is about, the names of anyone else involved, the dates that things occurred, and what remedy or resolution the grievant is asking to receive.
Most district policies provide for a three-level grievance process after a grievance form is submitted:
- The first level is a conference with the employee’s principal or immediate supervisor at which the employee or representative presents the grievance. The policy will also generally state a deadline for the supervisor to respond. If there is no response by the deadline, or if the employee is not satisfied with the response, the employee may then appeal to level two of the process by submitting a form and the documentation submitted at level one to the person or department designated in the policy.
- The second level is usually a conference with the superintendent or someone designated by the superintendent who again hears the grievance. Again, if there is no response within the specified timeline, or if the employee is not satisfied with the response, the employee may appeal to level three of the process by again submitting a form and the proper documentation to the person or department designated in the policy.
At the third level, the employee or representative presents the grievance to the school board at an official school board meeting. The school board may hear the grievance in open or closed session, depending on the specifics of the complaint and the requirements of the Texas Open Meetings Act. The board may vote to grant or deny the grievance. Any vote must be taken in open session. A school board’s denial or refusal to act on a grievance upholds the prior administration decision. A hearing before the local school board is the final step in any local grievance process. If the grievance involves a claim that a law has been violated, it might then be possible for the employee to appeal a school board decision to the commissioner of education for review or proceed to court.
The Texas Constitution and the Texas Government Code provide only that an employee has the right to “present” the grievance. The only legal requirement is that someone with the authority to remedy the situation “stop, look, and listen” or, actually listen and pay attention to the complaint presentation. There is no legal requirement for a response; however, many local district policies do require a response at each level.
Again, the process outlined above is common but not necessarily applicable in all districts. Employees should carefully review their district’s grievance policy each school year to find specific information about the process and to see if any changes have been made since the previous school year.
Conclusion of a grievance
A grievance is concluded if the employee is granted all relief requested at any stage of the process. If all requested relief is not granted, a grievance may be concluded if the employee completes the entire process or does not appeal the decision at any level within the required timeline. Finally, a grievance may be concluded if the claim is rendered moot at any stage of the process, meaning the resolution would no longer be relevant or mean anything to the party or parties involved.
It is important to note that an employee resigning or otherwise leaving employment with the district prior to completion of the grievance process does not automatically make an issue moot.
For example: An employee might claim that the district owes them money, or an employee may be grieving a negative appraisal that could affect future job opportunities. In such cases, a viable remedy could still be granted to the employee even after they have left the district.
Published/reviewed: February 11, 2021
The legal information provided here is accurate as of the date of publication. It is provided here for informative purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Please note: Rights based on the Texas Education Code may not apply to all. Many Texas Education Code provisions do not apply to public charter schools, and public school districts may have opted out of individual provisions through a District of Innovation plan. Eligible ATPE members may contact the ATPE Member Legal Services Department.