Chapter 08. Employee Rights and Protections
Regulation .01 General.LinkCopy Citation
This chapter applies to all Executive Branch agencies including a unit with an independent personnel system. Unless otherwise specified, this chapter also applies to temporary employees in the State Personnel Management System and to contractual, emergency, and temporary employees in an Executive Branch unit with an independent personnel system.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following words have the meanings indicated.
B.
Terms Defined.
(1)
“Party” means an employee filing a complaint or the head of the principal unit which employs the complainant.
(2)
“Personnel action” includes an appointment, promotion, disciplinary or corrective action, acting capacity, reassignment, reclassification, reinstatement, performance appraisal, decision affecting compensation, benefits, training, or any other matter which significantly affects an individual's compensation, terms, conditions, or privileges of employment.
Regulation .03 Equal Employment Opportunity Program.LinkCopy Citation
A.
Principal Unit Program.
(1)
Each principal unit shall maintain a continuing equal opportunity program to identify and eliminate discriminatory practices and policies.
(2)
In support of this program, the head of the unit, in conjunction with the fair practices officer, shall:
(a)
Provide resources to the program to ensure efficient and successful operation;
(b)
Provide for the prompt, fair, and impartial processing of complaints;
(c)
Conduct a continuing campaign to eradicate prejudice and discrimination from the unit's personnel policies, practices, and working conditions;
(d)
Communicate the unit's equal employment opportunity policy and program and its employment needs to all sources of job candidates without regard to any of the categories specified in State Personnel and Pensions Article, §5-208, Annotated Code of Maryland;
(e)
Provide orientation, training, and advice to managers and supervisors to assure their understanding and implementation of the equal employment opportunity policy;
(f)
Review and evaluate managerial and supervisory performance in a manner that ensures a continuing application and enforcement of the policy of equal opportunity;
(g)
Take appropriate disciplinary action against employees who engage in discriminatory practices;
(h)
Comply with the Religious Freedom Restoration Act of 1993 (42 U.S.C. §2000bb);
(i)
Comply with the Americans With Disabilities Act (42 U.S.C. §12-101);
(j)
Make reasonable accommodation to the known physical or mental limitations of qualified applicants and employees with disabilities unless accommodation would impose an undue hardship on the operation of the unit's program; and
(k)
Establish a system for periodically evaluating the effectiveness of the unit's overall equal employment opportunity effort.
(3)
To implement the unit's program, the appropriate staff of the unit shall:
(a)
Develop plans and procedures necessary to carry out the unit's program;
(b)
In accordance with the unit's annual EEO plan, monitor all personnel actions adopted by the unit;
(c)
Attest that procedures followed were consistent with State Personnel and Pensions Article, §5-207(d)(2), Annotated Code of Maryland;
(d)
Post, and otherwise make available, throughout the workplace, EEO materials in accordance with legal requirements;
(e)
Ensure that all unit employees receive full cooperation in the processing and resolution of discrimination complaints, including granting the State EEO Coordinator or designee, the unit fair practices officer, and unit equal employment opportunity officers access to relevant nonprivileged personnel records when required in connection with a complaint or an investigation;
(f)
Post, and otherwise make available, the names, business telephone numbers, and business addresses of the State EEO Coordinator and the unit's fair practices officer and equal employment opportunity officers; and
(g)
Post a notice of time limits applicable to the filing of a discrimination complaint under State and federal laws.
(4)
In each unit's program, the fair practices officer shall:
(a)
Advise the head of the unit regarding the preparation of equal employment opportunity plans, procedures, reports, and other matters related to the unit program;
(b)
Periodically evaluate the sufficiency of the unit program for equal employment opportunity and recommend to the head of the unit any changes needed, including remedial or disciplinary action with respect to unit employees who have failed in their responsibilities;
(c)
With the authorization of the head of the unit, make changes in programs and procedures designed to eliminate discriminatory practices and to improve the unit's program for equal employment opportunity;
(d)
Assure that discrimination complaints are fairly and thoroughly investigated and resolved in a timely manner; and
(e)
Review the complaints and corresponding investigation reports which have been completed by unit equal employment opportunity officers, certify that the reports have been reviewed, and forward the proposed decision to the head of the principal unit consistent with Regulation .04D of this chapter.
B.
Complaints of Discrimination.
(1)
A complaint of discrimination pursued under State Personnel and Pensions Article, Title 5, Subtitle 2, Annotated Code of Maryland, shall:
(a)
Include a signed written statement from the individual claiming to be aggrieved;
(b)
Identify the unit and describe the actions or practices which form the basis of the complaint;
(c)
Provide a telephone number and address where the complainant or a representative can be contacted;
(d)
Identify which alleged violation of State Personnel and Pensions Article, §5-208, Annotated Code of Maryland, occurred; and
(e)
Be filed with the head of the principal unit or the principal unit's designee within 30 days after the complainant first knew or reasonably should have known of the alleged violation that is the basis for the complaint.
(2)
The complaint filed in accordance with this section does not preclude an individual from filing a complaint with the Maryland Commission on Human Relations, the Equal Employment Opportunity Commission, or other appropriate agency, but it does preclude filing a grievance under State Personnel and Pensions Article, Title 12, Annotated Code of Maryland.
(3)
A unit shall notify the Secretary or designee of a complaint of discrimination when it is filed by forwarding a copy of the complaint and indicating the date of filing and with whom the complaint was filed. The notification to the Secretary is required for complaints of discrimination filed in accordance with the grievance procedures under State Personnel and Pensions Article, Title 12, Annotated Code of Maryland, and complaints of discrimination filed under State Personnel and Pensions Article, Title 5, Subtitle 2, Annotated Code of Maryland.
Regulation .04 Procedures for Investigating Complaints of Discrimination.LinkCopy Citation
A.
Definitions. In this regulation, the following terms have the meanings indicated:
(1)
“Comparable individual” means an individual whose circumstances and those of the complainant are such that it is appropriate that their treatment be compared to determine if discrimination has occurred.
(2)
“Relevant information” includes but is not limited to:
(a)
Statistical and other data reflecting personnel actions taken by an alleged discriminating official;
(b)
Nonprivileged information in personnel files of comparable employees; and
(c)
Any other information considered relevant by the State EEO Coordinator, the unit's fair practices officer, or the unit's equal employment opportunity officer.
B.
An equal employment opportunity officer or a fair practices officer assigned to investigate a complaint of discrimination may:
(1)
Administer oaths;
(2)
Obtain affidavits;
(3)
Conduct interviews; and
(4)
Obtain relevant nonprivileged information necessary to investigate and resolve the issues presented by the complainant.
C.
Procedures.
(1)
The complainant and each employee of the complainant's unit shall cooperate fully with an investigation of a discrimination complaint. Each individual shall produce documentary or testimonial evidence requested by the investigator.
(2)
An employee who fails to cooperate during an investigation, provides false information, obstructs, or in any way impedes an investigation shall be subject to disciplinary action, up to and including termination.
(3)
When the complainant, the complainant's unit, or one of the unit employees fails without good cause to respond fully and in a timely manner to requests for documents, records of comparative data, statistics, affidavits, or the attendance of witnesses, an individual authorized to investigate a complaint of discrimination shall make a note of the failure and the head of a principal unit, the State EEO Coordinator, or the Secretary, as appropriate, may:
(a)
Draw an adverse inference that the requested information would have reflected unfavorably on the party failing to provide it;
(b)
Consider the allegations relating to the requested information or testimony to be established in favor of the opposing party;
(c)
Exclude other evidence offered by the party failing to produce the requested information or witness;
(d)
Issue a decision fully or partially in favor of the opposing party; or
(e)
Take any other action the decision maker considers appropriate under the circumstances.
D.
Reports of Investigation.
(1)
Upon completion of an investigation under this regulation, the unit's fair practices officer shall send a proposed decision to the head of the principal unit. The head of the unit shall issue to the parties a written decision and may grant any appropriate relief.
(2)
The equal employment opportunity officer shall maintain all original documents in accordance with the unit's document and retention schedule.
(3)
A written decision issued by the head of the principal unit in accordance with State Personnel and Pensions Article, §5-212(2), Annotated Code of Maryland, shall be based on the report of investigation and the proposed decision recommended by the equal employment opportunity officer.
(4)
In accordance with State Personnel and Pensions Article, §5-213, Annotated Code of Maryland, a complainant who is dissatisfied with the decision of the head of the principal unit may appeal the decision in writing to the Secretary.
(5)
The decision of the Secretary shall be based upon such facts as the Secretary deems appropriate.
(6)
The Secretary shall grant appropriate relief and send a final decision to the parties.
Regulation .05 Whistleblower Complaints.LinkCopy Citation
A.
Those employees specified in State Personnel and Pensions Article, §5-301, Annotated Code of Maryland, may file a complaint with the Secretary alleging that a personnel action was taken in violation of State Personnel and Pensions Article, §5-305, Annotated Code of Maryland, as a reprisal against the employee for the employee's disclosure of impropriety in government. The complaint shall be filed in accordance with the provisions of State Personnel and Pensions Article, §5-309, Annotated Code of Maryland.
B.
Complaints shall be filed in writing and include the following information:
(1)
Name, telephone number, and home address of complainant;
(2)
Name, and business address, if known, of the person against whom the complaint is made;
(3)
Date or dates of alleged unlawful personnel actions;
(4)
A statement of the facts which are the basis for the complaint;
(5)
A statement detailing the disclosure of information and when and to whom the disclosure was made;
(6)
Signature of the complainant; and
(7)
Date the complaint is filed.
C.
An employee in the State Personnel Management System who wishes to pursue a complaint shall file either a complaint under State Personnel and Pensions Article, Title 5, Subtitle 3, Annotated Code of Maryland, or, when permitted, a grievance under State Personnel and Pensions Article, Title 12, Annotated Code of Maryland.
Regulation .06 Actions By the Secretary.LinkCopy Citation
A.
The Secretary's investigation and the issuance of findings regarding a whistleblower complaint are governed by State Personnel and Pensions Article, §5-309, Annotated Code of Maryland.
B.
Remedial action which may be ordered by the Secretary for a violation of State Personnel and Pensions Article, §5-305, Annotated Code of Maryland, is governed by State Personnel and Pensions Article, §5-309, Annotated Code of Maryland.
Regulation .07 Appeal of Whistleblower Complaints.LinkCopy Citation
A.
A complainant may appeal to the Office of Administrative Hearings in accordance with State Personnel and Pensions Article, §5-310, Annotated Code of Maryland.
B.
A request for a hearing shall be in writing and signed by the individual requesting a hearing.
C.
The Office of Administrative Hearings shall hold the hearing and shall issue the final administrative decision.
D.
Any hearing conducted shall be held in accordance with the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and State Personnel and Pensions Article, §5-310, Annotated Code of Maryland.
E.
The complainant shall bear the burden of proof.
F.
The Office of Administrative Hearings may not remand a whistleblower complaint to the Secretary for investigation.
G.
The Office of Administrative Hearings may not hold a hearing on the merits of an employee's appeal until all preliminary jurisdictional issues are resolved.
Regulation .08 Miscellaneous.LinkCopy Citation
Each party shall make every effort to promptly resolve a complaint at the lowest level possible.
Chapter annotations
Authority: State Personnel and Pensions Article, §§4-106, 5-204, and 5-303, Annotated Code of Maryland
History: Effective date:
History: Regulations .01—.08 adopted as an emergency provision effective February 12, 1997 (24:5 Md. R. 391); emergency status expired August 12, 1997; adopted permanently effective September 8, 1997 (24:18 Md. R. 1297)
History: For a history of State Personnel Regulations before February 12, 1997, see the prior version of COMAR Title 06 or contact the Maryland State Archives for assistance.