Be Sure Your Local Government Complies with Act 10’s Grievance Procedure Statute

Since October 2011, all local government units are required to have a “grievance procedure that addresses employee terminations.”  Wis. Stat. §  66.0509(1m), requires that this procedure be a written document and that it address discipline and workplace safety issues as well as employee terminations. act 10A Wisconsin Court of Appeals decision from December 2013, gives local governments reason local government units should review their grievance procedure.

Wis. Stat. §  66.0509(1m), does not define “employee terminations.” In Dodge County’s grievance policy “termination” was defined to exclude “termination of employment … due to medical condition, lack of qualification or license, non-renewal of contract, or other inability to perform job duties.”  When a County employee lost her license due to an OWI, the County dismissed her. The employee requested a grievance hearing, but the county denied her a hearing. The employee sued and argued that Wis. Stat. § 66.0509(1m) required all employee terminations to be addressed by a grievance procedure.

The county maintained that she was not terminated. Under the county policy, because having a valid license was a qualification for her position, it was argued her job was lost due to losing the qualifications for the job, not due to “termination.”  Ultimately the Court of Appeals held in Prof’l Emp. Local vs. Dodge County, 2014 WI App 8 ,that Wis. Stat. § 66.0509(1m) required all employee dismissals to be addressed by a grievance procedure. Therefore exclusions in Dodge County’s grievance procedure violated Wis. Stat. § 66.0509(1m). Id. ¶ 15. The court did note that employee-initiated separations such as quitting or retirement are not commonly understood as terminations and so are not required to go through the grievance procedure.

From this decision local governments should make sure that you have a written grievance procedure in place for employee terminations.  Second, if your grievance procedure does not cover all employer-initiated terminations then your procedure may be subject to a court challenge. Many seminars (including those sponsored by the Local Government Center) and legal advisors suggested clarifying the scope of grievance policies by defining and limiting what is considered “termination.” It is possible given the advice at the time that many local governments have policies defining “termination” contrary to the Prof’l Emp. Local vs. Dodge County case.  Ask your legal advisor if your policy needs to be modified based on this Court of Appeals decision.

For further reading, see this article that appeared in the February 14 Municipality magazine.

Philip Freeburg & Alex Lewien