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Public Employee and Grievance

A Public Employee And The Right to Representation

West Virginia law permits certain public employees the right to representation in the workplace.  A public employee may have someone speak and act on their behalf in certain circumstances related to employee discipline.  The right to representation is but one mechanism through which West Virginia law ensures that public employees are being treated fairly in the workplace.

Who is a Public Employee for the Purpose of Representation?

Not all people who are employed by government entities have a right to representation.  Generally, the right to representation is limited to West Virginia public employees employed by state agencies, departments, boards, commissions, colleges, universities, the State Board of Education, the Department of Education, county boards of education, regional educational service agencies or multi-county vocational centers.  See W.Va. Code § 6C-2-2(g).  It does not include certain members of the West Virginia State Police, an employee of the Legislature, constitutional officers who are not part of the civil service system, or a patient or inmate employed by a state institution.  W.Va. Code §6C-2-2(3)(3).

A Designated Representative

A “Representative” is defined as “any employee organization, fellow employee, attorney or other person designated by the grievant or intervenor as his or her representative and may include a supervisor who evaluates the grievant.” W. Va. Code § 6C-2-3(n).  Anyone who fits within the definition of a representative may act on behalf of an employee in the disciplinary setting.

When Does the Representation Right Apply?

Pursuant to W.Va. Code § 6C-2-2-3(g)(1), “An employee may designate a representative who may be present at any step of the [grievance] procedure as well as at any meeting that is held with the employee for the purpose of discussing or considering disciplinary action.”

The West Virginia Public Employees Grievance Board has expressly considered the right to representation in a variety of settings.  The Grievance Board has recognized that “[t]he label given the meeting does not matter. If the topic of the meeting is conduct of the employee that could lead to discipline, the employee has a statutory right to have a representative present, if she makes such a request.”  Koblinsky v. Putnam County Health Department, Docket No. 2010-1306-CONS (November 8, 2010).

If discipline might result, there is a right to representation.  However, it is the burden of the public employee: (1) to be informed of the law; and (2) to assert his or her right to representation.  If public employees don’t know their right and don’t exercise them, then the rights are of little value.

Why Give A Public Employee the Right to Representation?

The right to representation injects a level of fairness into the workplace.  It ensures that the army of production has a say in the operation of government at the workplace level.  It likewise ensures that government agencies, who often have their own in-house attorneys, follow their own rules that they established to regulate their conduct.  An attorney, union steward, or other representative with knowledge of state laws, workplace rules, policies, and regulations, can ensure that an employee’s rights are not being arbitrarily trampled on at the whim of the government.