1     
WORK ENVIRONMENT AND GRIEVANCE

2     
PROCEDURE AMENDMENTS

3     
2018 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: LaVar Christensen

6     
Senate Sponsor: J. Stuart Adams

7     

8     LONG TITLE
9     General Description:
10          This bill clarifies and amends grievance procedures for state employees in the executive
11     branch.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     incorporates in statute the state's policy and commitment to provide and maintain a
16     work environment free of abusive conduct;
17          ▸     requires biennial training and annual reports to a legislative committee regarding
18     abusive conduct and grievances;
19          ▸     includes abusive conduct and other actions as conditions for which an employee
20     may file a grievance and complaint;
21          ▸     prohibits retaliatory action against an employee who represents or advocates for an
22     employee in the grievance procedure as provided in statute;
23          ▸     amends deadlines for submitting certain grievances;
24          ▸     allows an employee to submit a grievance to higher steps in the grievance process if
25     the grievance relates to a supervisor or administrator to whom the employee would
26     otherwise submit a grievance;
27          ▸     provides for an administrative appeal to the administrator of the Career Service
28     Review Office; and
29          ▸     makes technical and conforming changes.
30     Money Appropriated in this Bill:
31          None
32     Other Special Clauses:
33          None
34     Utah Code Sections Affected:
35     AMENDS:
36          67-19-44, as enacted by Laws of Utah 2015, Chapter 211
37          67-19a-101, as last amended by Laws of Utah 2013, Chapter 427
38          67-19a-202, as last amended by Laws of Utah 2015, Chapter 258
39          67-19a-301, as last amended by Laws of Utah 2013, Chapter 427
40          67-19a-303, as last amended by Laws of Utah 2013, Chapter 427
41          67-19a-401, as last amended by Laws of Utah 2010, Chapter 249
42          67-19a-402, as last amended by Laws of Utah 2010, Chapter 249
43          67-19a-402.5, as last amended by Laws of Utah 2015, Chapter 258
44          67-19a-406, as last amended by Laws of Utah 2013, Chapter 109
45          67-21-3.5, as enacted by Laws of Utah 2013, Chapter 427 and last amended by
46     Coordination Clause, Laws of Utah 2013, Chapter 427
47     ENACTS:
48          67-19a-102, Utah Code Annotated 1953
49          67-19a-205, Utah Code Annotated 1953
50          67-19a-501, Utah Code Annotated 1953
51     REPEALS AND REENACTS:
52          67-19a-302, as last amended by Laws of Utah 2013, Chapter 427
53     

54     Be it enacted by the Legislature of the state of Utah:
55          Section 1. Section 67-19-44 is amended to read:
56          67-19-44. Abusive conduct.
57          (1) As used in this section:
58          (a) (i) "Abusive conduct" means verbal, nonverbal, or physical conduct of an employee
59     to another employee that, based on its severity, nature, and frequency of occurrence, a
60     reasonable person would determine:
61          (A) is intended to cause intimidation, humiliation, or unwarranted distress;
62          (B) results in substantial physical or psychological harm as a result of intimidation,
63     humiliation, or unwarranted distress; or
64          (C) exploits an employee's known physical or psychological disability.
65          (ii) A single act does not constitute abusive conduct, unless it is an especially severe
66     and egregious act that meets the standard under Subsection (1)(a)(i)(A), (B), or (C).
67          (b) "Employee" means an employee of a state executive branch agency.
68          (c) "Physical harm" means the impairment of a person's physical health or bodily
69     integrity, as established by competent evidence.
70          (d) "Psychological harm" means the impairment of a person's mental health, as
71     established by competent evidence.
72          (2) It is the policy of the state of Utah to provide and maintain a work environment free
73     from abusive conduct.
74          (3) An employee may file a written complaint of abusive conduct with the department
75     and subject to further administrative review in accordance with Section 67-19a-501.
76          [(2)] (4) By July 1, [2015] 2019, the department shall [make a] amend the department's
77     rule, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent
78     with the definitions in Subsection (1) and Title 67, Chapter 19a, Grievance Procedures.
79          [(3) (a) On and after July 1, 2015, the]
80          (5) (a) The department shall provide biennial training to educate employees and
81     supervisors about how to prevent abusive workplace conduct.
82          (b) The training shall include information on:
83          (i) what constitutes abusive conduct and the ramifications of abusive conduct;
84          (ii) resources available to employees who are subject to abusive conduct; and
85          (iii) the grievance process.
86          [(4) (a) On and after July 1, 2015, each]
87          (6) (a) Each state agency shall provide professional development training approved by
88     the department to promote:
89          (i) ethical conduct; [and]
90          (ii) organizational leadership practices based in principles of integrity[.]; and
91          (iii) the state policy described in Subsection (2).
92          (b) A state agency may request assistance from the department in developing training
93     under this Subsection [(4)] (6).
94          [(5) Employees] (7) (a) Employers shall provide and employees shall participate in the
95     training described in Subsections [(3) and (4)] (5) and (6) at the time the employee is hired or
96     within a reasonable time after the employee commences employment and in alternating years
97     thereafter.
98          (b) The requirement in Subsection (7)(a) includes notification to all employees at the
99     time of hiring or within a reasonable time after the employee commences employment and in
100     alternating years thereafter of the abusive conduct complaint procedures and the grievance
101     procedures provided in Title 67, Chapter 19a, Grievance Procedures.
102          [(6)] (8) The department may use money appropriated to the department or access
103     support from outside resources to:
104          (a) develop policies against workplace abusive conduct; and
105          (b) enhance professional development training on topics such as:
106          (i) building trust;
107          (ii) effective motivation;
108          (iii) communication;
109          (iv) conflict resolution;
110          (v) accountability;
111          (vi) coaching;
112          (vii) leadership; or
113          (viii) ethics.
114          [(7)] (9) This section does not:
115          (a) exempt or relieve a person from a liability, duty, or penalty provided by another
116     federal or state law;
117          (b) create a private right of action;
118          (c) expand or diminish rights or remedies available to a person before July 1, 2015; or
119          (d) expand or diminish grounds for discipline that existed before July 1, 2015.
120          [(8)] (10) The department shall annually report to the Economic Development and
121     Workforce Services Interim Committee by no later than the November [2015] interim meeting
122     regarding:
123          (a) the implementation of this section;
124          (b) recommendations, if any, to appropriately address and reduce workplace abusive
125     conduct or to change definitions or training required by this section; and
126          [(c) if the department finds a change in a definition or training is needed, the
127     department's efforts to work with stakeholders to make recommendations for change.]
128          (c) an annual report of the total number and outcomes of abusive conduct complaints
129     that employees filed and the department investigated.
130          Section 2. Section 67-19a-101 is amended to read:
131          67-19a-101. Definitions.
132          As used in this chapter:
133          (1) "Abusive conduct" means the same as that term is defined in Section 67-19-44.
134          [(1)] (2) "Administrator" means the person appointed under Section 67-19a-201 to
135     head the Career Service Review Office.
136          [(2)] (3) "Career service employee" means a person employed in career service as
137     defined in Section 67-19-3.
138          (4) "Department" means the Department of Human Resource Management.
139          [(3)] (5) "Employer" means the state of Utah and all supervisory personnel vested with
140     the authority to implement and administer the policies of an agency.
141          (6) "Excusable neglect" means harmless error, mistake, inadvertence, surprise, a failure
142     to discover evidence that, through due diligence, could not have been discovered in time to
143     meet the applicable time period, misrepresentation or misconduct by the employer, or any other
144     reason justifying equitable relief.
145          [(4)] (7) "Grievance" means:
146          (a) a complaint by a career service employee concerning any matter touching upon the
147     relationship between the employee and the employer;
148          (b) any dispute between a career service employee and the employer; [and]
149          (c) a complaint by a reporting employee that a public entity has engaged in retaliatory
150     action against the reporting employee[.] ; and
151          (d) a complaint that the employer subjected the employee to conditions that a
152     reasonable person would consider intolerable, including abusive conduct.
153          [(5)] (8) "Office" means the Career Service Review Office created under Section
154     67-19a-201.
155          [(6)] (9) "Public entity" [is as] means the same as that term is defined in Section
156     67-21-2.
157          [(7)] (10) "Reporting employee" means an employee of a public entity who alleges that
158     the public entity engaged in retaliatory action against the employee.
159          [(8)] (11) "Retaliatory action" means to do any of the following to an employee in
160     violation of Section 67-21-3:
161          (a) dismiss the employee;
162          (b) reduce the employee's compensation;
163          (c) fail to increase the employee's compensation by an amount that the employee is
164     otherwise entitled to or was promised;
165          (d) fail to promote the employee if the employee would have otherwise been promoted;
166     or
167          [(e) cause the employee to resign by subjecting the employee to conditions that a
168     reasonable person would consider intolerable ; or]
169          [(f)] (e) threaten to take an action described in Subsections [(8)] (11)(a) through [(e)]
170     (d).
171          [(9)] (12) "Supervisor" means the person:
172          (a) to whom an employee reports; or
173          (b) who assigns and oversees an employee's work.
174          Section 3. Section 67-19a-102 is enacted to read:
175          67-19a-102. Work environment policy.
176          As recognized and provided in Section 67-19-44, it is the policy of the state of Utah to
177     provide and maintain a work environment free from abusive conduct.
178          Section 4. Section 67-19a-202 is amended to read:
179          67-19a-202. Powers -- Scope of authority.
180          (1) [(a)] The office shall serve as the final administrative body to review a grievance
181     from a career service employee and an agency of a decision regarding:
182          [(i)] (a) a dismissal;
183          [(ii)] (b) a demotion;
184          [(iii)] (c) a suspension;
185          [(iv)] (d) a reduction in force;
186          [(v)] (e) a dispute concerning abandonment of position;
187          [(vi)] (f) a wage grievance if an employee is not placed within the salary range of the
188     employee's current position;
189          [(vii)] (g) a violation of a rule adopted under Chapter 19, Utah State Personnel
190     Management Act; or
191          [(viii)] (h) except as provided by Subsection (1)(c)(iii), equitable administration of the
192     following benefits:
193          [(A)] (i) long-term disability insurance;
194          [(B)] (ii) medical insurance;
195          [(C)] (iii) dental insurance;
196          [(D)] (iv) post-retirement health insurance;
197          [(E)] (v) post-retirement life insurance;
198          [(F)] (vi) life insurance;
199          [(G)] (vii) defined contribution retirement;
200          [(H)] (viii) defined benefit retirement; and
201          [(I)] (ix) a leave benefit.
202          [(b)] (2) The office shall serve as the final administrative body to review a grievance by
203     a reporting employee alleging retaliatory action.
204          (3) The office shall serve as the final administrative body to review the findings of an
205     abusive conduct investigation without an evidentiary hearing.
206          [(c)] (4) The office may not review or take action on:
207          [(i)] (a) a personnel matter not listed in [Subsection (1)(a) or (b)] Subsections (1)
208     through (3);
209          [(ii)] (b) a [grievance] personnel matter listed in [Subsection (1)(a) or (b)] Subsections
210     (1) through (3) that alleges discrimination or retaliation related to a claim of discrimination that
211     is a violation of a state or federal law for which review and action by the office is preempted by
212     state or federal law; or
213          [(iii)] (c) a [grievance] personnel matter related to a claim for which an administrative
214     review process is provided by statute and administered by:
215          [(A)] (i) the Utah State Retirement Systems under Title 49, Utah State Retirement and
216     Insurance Benefit Act;
217          [(B)] (ii) the Public Employees' Benefit and Insurance Program under Title 49, Chapter
218     20, Public Employees' Benefit and Insurance Program Act; or
219          [(C)] (iii) the Public Employees' Long-Term Disability Program under Title 49,
220     Chapter 21, Public Employees' Long-Term Disability Act.
221          [(2)] (5) The time limits established in this chapter supersede the procedural time limits
222     established in Title 63G, Chapter 4, Administrative Procedures Act.
223          Section 5. Section 67-19a-205 is enacted to read:
224          67-19a-205. Employment transfer.
225          At any point during the grievance process, the employer and the employee may
226     mutually agree to a transfer of the employee to another equivalent position, if and to the extent
227     that such a position is available, in accordance with department rules for transfer and
228     reassignment.
229          Section 6. Section 67-19a-301 is amended to read:
230          67-19a-301. Charges submissible under grievance procedure.
231          (1) This grievance procedure may only be used by career service employees who are
232     not:
233          (a) public applicants for a position with the state's work force;
234          (b) public employees of the state's political subdivisions;
235          (c) public employees covered by other grievance procedures; or
236          (d) employees of state institutions of higher education.
237          (2) (a) Whenever a question or dispute exists as to whether an employee is qualified to
238     use this grievance procedure, the administrator shall resolve the question or dispute.
239          (b) The administrator's decision under Subsection (2)(a) is reviewable only by the
240     Court of Appeals.
241          (3) Any career service employee may submit a grievance based upon a claim or charge
242     of injustice or oppression, including dismissal from employment, resulting from an act,
243     occurrence, omission, or condition for solution through the grievance procedures set forth in
244     this chapter.
245          (4) A reporting employee who desires to bring an administrative claim of retaliatory
246     action shall use the grievance procedure described in Section 67-19a-402.5.
247          (5) A career service employee who desires to bring a grievance described in Subsection
248     67-19a-202(1) shall use and follow the grievance procedure described in Part 3, Grievance
249     Procedures, and Part 4, Procedural Steps to Be Followed by Aggrieved Employee.
250          (6) An employee who desires to initiate an administrative review challenging the
251     findings of an abusive conduct investigation shall use and follow the procedure described in
252     Section 67-19a-501.
253          Section 7. Section 67-19a-302 is repealed and reenacted to read:
254          67-19a-302. Levels of procedure.
255          (1) The administration of all grievances under Subsection 67-19a-202(1) occurs on the
256     following four levels:
257          (a) Level 1 - the supervisor;
258          (b) Level 2 - the division director or the director's designee;
259          (c) Level 3 - the agency director or the director's designee; and
260          (d) Level 4 - the office.
261          (2) (a) Except as provided in Subsection (2)(b) and Section 67-19a-501, an employee
262     shall file a grievance or complaint at Level 1 and proceed through the levels of procedure
263     within the applicable time limits provided in this chapter.
264          (b) If a supervisor or division director is a subject of a grievance or complaint, the
265     employee may proceed directly to Level 2 or Level 3, respectively.
266          (3) A career service employee may advance all grievances to Level 3.
267          (4) In accordance with Section 67-19a-402.5 and subject to Section 67-21-4, a
268     reporting employee may file a grievance alleging retaliatory action directly at Level 4.
269          Section 8. Section 67-19a-303 is amended to read:
270          67-19a-303. Employees' rights in grievance procedure.
271          (1) For the purpose of submitting and advancing a grievance, a career service
272     employee, or a reporting employee alleging retaliatory action, may:
273          (a) obtain assistance by a representative of the employee's choice to act as an advocate
274     at any level of the grievance procedure;
275          (b) request a reasonable amount of time during work hours to confer with the
276     representative and prepare the grievance; and
277          (c) call other employees as witnesses at a grievance hearing.
278          (2) The state shall allow employees to attend and testify at the grievance hearing as
279     witnesses if the employee has given reasonable advance notice to the employee's immediate
280     supervisor.
281          (3) No person may take any reprisals against a career service employee or a reporting
282     employee for:
283          (a) use of or participation in a grievance procedure described in this chapter[.]; or
284          (b) representing and providing assistance to a career service employee as an advocate
285     in accordance with Subsection (1)(a).
286          (4) If the individual acting as an advocate for a career service employee under
287     Subsection (1)(a) is a state employee, the individual may not receive state compensation for the
288     time the employee spends in the course of that representation unless the individual uses
289     approved leave during that time.
290          [(4)] (5) (a) The employing agency of an employee who files a grievance may not place
291     grievance forms, grievance materials, correspondence about the grievance, agency and
292     department replies to the grievance, or other documents relating to the grievance in the
293     employee's personnel file.
294          (b) The employing agency of an employee who files a grievance may place records of
295     disciplinary action in the employee's personnel file.
296          (c) If any disciplinary action against an employee is rescinded through the grievance
297     procedures described in this chapter, the agency and the Department of Human Resource
298     Management shall remove the record of the disciplinary action from the employee's agency
299     personnel file and central personnel file.
300          (d) An agency may maintain a separate grievance file relating to an employee's
301     grievance, but shall discard the file after three years.
302          Section 9. Section 67-19a-401 is amended to read:
303          67-19a-401. Time limits for submission and advancement of grievance by
304     aggrieved employee -- Voluntary termination of employment -- Group grievances.
305          (1) [Subject to the provisions of Part 3, Grievance Procedures, and the restrictions
306     contained in this part,] When a career service employee [may have] files a grievance [addressed
307     by following the procedures] at Level 1, as described in Section 67-19a-302, the employee
308     shall advance the grievance through the proper levels of procedure specified in this [part]
309     chapter.
310          (2) The employee and the person to whom the grievance is directed may agree in
311     writing to waive or extend grievance steps specified under Subsection 67-19a-402(1), (2), or
312     (3) or the time limits specified for those grievance steps, as outlined in Section 67-19a-402.
313          (3) Any writing made under Subsection (2) shall be submitted to the administrator.
314          (4) Except as provided under [Subsection (6)] Subsections (6) and (7), if the employee
315     fails to advance the grievance to the next procedural step within the time limits established in
316     this part:
317          (a) the employee waives the right to advance the grievance or to obtain judicial review
318     of the grievance; and
319          (b) the grievance is considered to be settled based on the decision made at the last
320     procedural step.
321          (5) [(a)] An employee may [submit] file a grievance for review under this chapter
322     [only], except as provided in Subsections (6) and (7), if the employee submits the grievance
323     within 30 working days after:
324          [(i) within 20 working days after] (a) the most recent event giving rise to the
325     grievance; or
326          [(ii)] (b) [within 20 working days after] the employee has knowledge of the most
327     recent event giving rise to the grievance.
328          [(b) Notwithstanding Subsection (5)(a), an employee may not submit a grievance more
329     than one year after the event giving rise to the grievance.]
330          (6) (a) An employee may file with the office a motion for an enlargement of a time
331     limit described in Subsection (5).
332          (b) In determining whether to grant a motion described in Subsection (6)(a), the office
333     shall consider, giving reasonable deference to the employee, whether:
334          (i) the employee filed the motion before the time limit the employee seeks to enlarge;
335     or
336          (ii) the enlargement is necessary to remedy the employee's excusable neglect.
337          [(6)] (7) The provisions of Subsections (4) and (5)[(a)] do not apply if the employee
338     meets the requirements for excusable neglect [established by rule] as that term is defined in
339     Section 67-19a-101.
340          [(7) A person who has voluntarily terminated the person's employment with the state
341     may not submit a grievance after the person has terminated the employment.]
342          (8) (a) If several employees allege the same grievance, the employees may submit a
343     group grievance by following the procedures and requirements of this chapter.
344          (b) In submitting a group grievance, each aggrieved employee shall sign the grievance.
345          (c) The administrator may not treat a group grievance as a class action, but may select
346     one aggrieved employee's grievance and address that grievance as a test case.
347          Section 10. Section 67-19a-402 is amended to read:
348          67-19a-402. Procedural steps to be followed by aggrieved employee.
349          (1) (a) [A] Subject to the provisions and levels of procedure provided in Section
350     67-19a-302, a career service employee who has a grievance shall submit the grievance in
351     writing to:
352          (i) the employee's supervisor; and
353          (ii) the administrator.
354          (b) Within five working days after receiving a written grievance, the employee's
355     supervisor may issue a written decision on the grievance.
356          (2) (a) If the employee's supervisor fails to respond to the grievance within five
357     working days or if the aggrieved employee is dissatisfied with the supervisor's written decision,
358     the employee may advance the written grievance to the employee's agency or division director
359     within 10 working days after the expiration of the period for response or receipt of the written
360     decision, whichever is first.
361          (b) Within five working days after receiving the written grievance, the employee's
362     agency or division director may issue a written response to the grievance stating the decision
363     and the reasons for the decision.
364          (3) (a) If the employee's agency or division director fails to respond to the grievance
365     within five working days after its submission, or if the aggrieved employee is dissatisfied with
366     the agency or division director's written decision, the employee may advance the written
367     grievance to the employee's department head within 10 working days after the expiration of the
368     period for decision or receipt of the written decision, whichever is first.
369          (b) Within 10 working days after the employee's written grievance is submitted, the
370     department head may issue a written response to the grievance stating the decision and the
371     reasons for the decision.
372          (c) The decision of the department head is final in all matters except those matters that
373     the office may review under the authority of Part 3, Grievance Procedures.
374          (4) If the written grievance submitted to the employee's department head meets the
375     subject matter requirements of Section 67-19a-202 and if the employee's department head fails
376     to respond to the grievance within 10 working days after submission, or if the aggrieved
377     employee is dissatisfied with the department head's written decision, the employee may
378     advance the written grievance to the administrator within 10 working days after the expiration
379     of the period for decision or receipt of the written decision, whichever is first.
380          Section 11. Section 67-19a-402.5 is amended to read:
381          67-19a-402.5. Procedural steps to be followed by reporting employee alleging
382     retaliatory action.
383          (1) A reporting employee who desires to assert an administrative grievance of
384     retaliatory action:
385          (a) shall submit the grievance in writing within [20] 30 days after the day on which the
386     retaliatory action occurs;
387          (b) is not required to comply with Section 63G-7-402 to file the grievance; and
388          (c) is subject to the provisions of Section 67-21-4.
389          (2) (a) When a reporting employee files a grievance with the administrator under
390     Subsection (1), the administrator shall initially determine:
391          (i) whether the reporting employee is entitled, under this chapter and Chapter 21, Utah
392     Protection of Public Employees Act, to bring the grievance and use the grievance procedure;
393          (ii) whether the office has authority to review the grievance;
394          (iii) whether, if the alleged grievance were found to be true, the reporting employee
395     would be entitled to relief under Subsection 67-21-3.5(2); and
396          (iv) whether the reporting employee has been directly harmed.
397          (b) To make the determinations described in Subsection (2)(a), the administrator may:
398          (i) hold an initial hearing, where the parties may present oral arguments, written
399     arguments, or both; or
400          (ii) conduct an administrative review of the grievance.
401          (3) (a) If the administrator holds an initial hearing, the administrator shall issue a
402     written decision within 15 days after the day on which the hearing is adjourned.
403          (b) If the administrator chooses to conduct an administrative review of the grievance,
404     the administrator shall issue the written decision within 15 days after the day on which the
405     administrator receives the grievance.
406          (4) (a) If the administrator determines the office has authority to review the grievance,
407     the administrator shall provide for an evidentiary hearing in accordance with Section
408     67-19a-404.
409          (b) The administrator may dismiss the grievance, without holding a hearing or taking
410     evidence, if the administrator:
411          (i) finds that, even if the alleged grievance were found to be true, the reporting
412     employee would not be entitled to relief under Subsection 67-21-3.5(2); and
413          (ii) provides the administrator's findings, in writing, to the reporting employee.
414          (c) The office shall comply with Chapter 21, Utah Protection of Public Employees Act,
415     in taking action under this section.
416          (5) A decision reached by the office in reviewing a retaliatory action grievance from a
417     reporting employee may be appealed directly to the Utah Court of Appeals.
418          (6) (a) Except as provided in Subsection (6)(b), an appellate court may award costs and
419     attorney fees, accrued at the appellate court level, to a prevailing employee.
420          (b) A court may not order the office to pay costs or attorney fees under this section.
421          Section 12. Section 67-19a-406 is amended to read:
422          67-19a-406. Procedural steps to be followed by aggrieved employee -- Hearing
423     before hearing officer -- Evidentiary and procedural rules.
424          (1) (a) The administrator shall employ a certified court reporter to record the hearing
425     and prepare an official transcript of the hearing.
426          (b) The official transcript of the proceedings and all exhibits, briefs, motions, and
427     pleadings received by the hearing officer are the official record of the proceeding.
428          (2) (a) The agency has the burden of proof in all grievances.
429          (b) The agency must prove the agency's case by substantial evidence.
430          (3) (a) The hearing officer shall issue a written decision within 20 working days after
431     the hearing is adjourned.
432          (b) If the hearing officer does not issue a decision within 20 working days, the agency
433     that is a party to the grievance is not liable for any claimed back wages or benefits after the date
434     the decision is due.
435          (4) The hearing officer may:
436          (a) not award attorney fees or costs to either party;
437          (b) close a hearing by complying with the procedures and requirements of Title 52,
438     Chapter 4, Open and Public Meetings Act;
439          (c) seal the file and the evidence produced at the hearing if the evidence raises
440     questions about an employee's character, professional competence, or physical or mental
441     health;
442          (d) grant continuances according to rule; and
443          (e) decide a motion, an issue regarding discovery, or another issue in accordance with
444     this chapter.
445          (5) (a) A hearing officer shall affirm, rescind, or modify agency action.
446          (b) (i) If a hearing officer does not affirm agency action, the hearing officer shall order
447     back pay and back benefits that the grievant would have received without the agency action.
448          (ii) An order under Subsection (5)(b)(i) shall include:
449          (A) reimbursement to the grievant for premiums that the grievant paid for benefits
450     allowed under the Consolidated Omnibus Reconciliation Act of 1985; and
451          (B) an offset for any state paid benefits the grievant receives because of the agency
452     action, including unemployment compensation benefits.
453          (c) In an order under Subsection (5)(b)(i), a hearing officer may not reduce the amount
454     of back pay and benefits awarded a grievant because of income that the grievant earns during
455     the grievance process.
456          (6) An employee who files a grievance in accordance with this chapter may appeal a
457     decision of the office directly to the Utah Court of Appeals in accordance with Title 63G,
458     Chapter 4, Administrative Procedures Act.
459          Section 13. Section 67-19a-501 is enacted to read:
460     
Part 5. Abusive Conduct Administrative Review

461          67-19a-501. Procedural steps to be followed in an administrative review of an
462     abusive conduct investigation.
463          (1) An employee may initiate an administrative review of the findings of an abusive
464     conduct investigation within 10 days after the day on which the employee receives notification
465     of the investigative findings.
466          (2) (a) An employee bringing an administrative review of the findings described in
467     Subsection (1) may file the request for the administrative review directly with the office.
468          (b) The request for administrative review may set forth the reasons for the appeal and
469     include any submissions the employee desires to submit.
470          (3) (a) When an employee initiates the review described in Subsection (2) with the
471     office:
472          (i) the role of the administrative review is to review and rule upon the department's
473     findings and decision; and
474          (ii) an evidentiary hearing is not required.
475          (b) The department shall make the abusive conduct investigative file available for the
476     administrator's in camera review.
477          (c) The administrator may:
478          (i) request additional relevant documents from the department or the affected
479     employee; and
480          (ii) interview the department's investigators who conducted the investigation.
481          (4) (a) If the administrator determines that the investigator's findings are not
482     reasonable, rational, and sufficiently supported by the record, the administrator may overturn
483     the findings and remand to the agency for appropriate action.
484          (b) The administrator may uphold the department's investigative findings if, based on
485     the administrative review, the administrator determines that the investigator's findings are
486     reasonable, rational, and sufficiently supported by the record.
487          (5) (a) Within 30 days after the day on which an employee initiates an administrative
488     review under this section, the administrator shall issue a notice stating whether the
489     administrator upheld or overturned the investigative findings.
490          (b) The office's determination upon administrative review of the findings resulting
491     from an abusive conduct investigation is final and not subject to appeal.
492          (c) The following are classified as protected under Title 63G, Chapter 2, Government
493     Records Access and Management Act, and any other applicable confidentiality provisions:
494          (i) the request for administrative review and any accompanying documents;
495          (ii) documents that any party provides;
496          (iii) the contents of the administrative review file; and
497          (iv) the office's determination.
498          Section 14. Section 67-21-3.5 is amended to read:
499          67-21-3.5. Administrative review of adverse action against a public entity
500     employee.
501          (1) A public entity employee who believes that the employee's employer has taken
502     retaliatory action against the employee in violation of this chapter may file a grievance with the
503     Career Service Review Office in accordance with Section 67-19a-402.5 and subject to Section
504     67-21-4.
505          (2) If the Career Service Review Office determines that retaliatory action is taken in
506     violation of this chapter against the public entity employee, the Career Service Review Office
507     may order:
508          (a) reinstatement of the public entity employee at the same level held by the public
509     entity employee before the retaliatory action;
510          (b) the payment of back wages, in accordance with Subsection 67-19a-406(5)(b);
511          (c) full reinstatement of benefits;
512          (d) full reinstatement of other employment rights; or
513          (e) if the retaliatory action includes failure to promote, as described in Subsection
514     67-19a-101[(8)](11)(d), a pay raise that results in the employee receiving the pay that the
515     employee would have received if the person had been promoted.
516          (3) A public entity employer has the burden to prove by substantial evidence that the
517     public entity employer's action was justified.
518          (4) A public entity employee or public entity employer may appeal a determination of
519     the Career Service Review Office as provided in Section 67-19a-402.5.