# Title 4 — Management and Budget, Office of

## Article 4-07 — Organization of Human Resource Management Services

## Chapter 4-07-20.1 — Appeals of Employer Actions

Services
### § 4-07-20.1-01. Scope of chapter.

This chapter applies to regular employees.
History: Effective November 1, 1996.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.1-02. Definitions.

The terms used throughout this chapter have the same meaning as in North Dakota Century Code
chapter 54-44.3, except:
1. "Date of service" means the date the notice was mailed or transmitted by electronic means.
2. "Employer action" means an action taken by an appointing authority that affects a regular
employee through a demotion, dismissal, suspension without pay, forced relocation,
reduction-in-force, or reprisal.
3. "Forced relocation" means the involuntary transfer or reassignment of a regular employee
from one work location in the state to another work location in the state that requires the
employee to move to a different place of residence. Telecommuting and other alternative work
location agreements are not considered forced relocations.
4. "Reduction-in-force" means the loss of employment by a regular employee as a result of a
reduction in funding, lack of work, curtailment of work, or reorganization.
5. "Regular employee" means a person who has completed the probationary period and who is
or was in a position classified by human resource management services at the time the
employer action occurred.
6. "Reprisal" means an unfavorable employment-related action taken against an applicant or
employee by an appointing authority for appealing to human resource management services
or the state personnel board; for exercising the employee's rights under the Public Employees
Relations Act of 1985, North Dakota Century Code chapter 34-11.1; for testifying before a
legislative committee; or for employees who request timely assistance under the employee
assistance program.
7. "Waiver" means a written agreement between a regular employee and the appointing authority
not to proceed with the agency grievance procedure and to permit an appeal to be made
directly to human resource management services.
8. "Working days" means Monday through Friday exclusive of holidays.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010; January 1, 2024.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 34-11.1-04(5), 54-44.3-12.2
### § 4-07-20.1-03. A regular employee may file a grievance regarding an employer action.

A regular employee may, in accordance with the respective agency's grievance procedure, file a
grievance regarding demotion, dismissal, suspension without pay, forced relocation, reduction-in-force,
or reprisal. A grievance must be processed through the agency grievance procedure prior to submitting
an appeal to human resource management services, unless a waiver is agreed upon as provided for in
section 4-07-20.1-05.
History: Effective November 1, 1996; amended effective July 1, 2004.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.1-04. Commencement of agency grievance procedure - Time limitations.

The employee shall begin the agency grievance procedure within fifteen working days from the
date of notice of the employer action, except in the case of reprisal. The date of service of the notice
shall be considered to be the date the notice was mailed or the date transmitted by electronic means,
or absent proof of the date of mailing or delivery through electronic means, the date of actual delivery.
The agency shall prepare a certificate of service, or provide reliable means, to show proof of the date of
mailing, transmittal by electronic means, or hand delivery. The employee grieving reprisal action shall
begin the agency grievance procedure within fifteen working days from the date of the reprisal action.
Failure to begin the procedure within time limitations may cause the employee to lose the right to
appeal to human resource management services. The agency appointing authority or designee, for
good cause shown, may waive the time limitations for filing a grievance. Good cause means those
circumstances that reasonably and without any fault on the part of the grievant prevented the filing of a
grievance in a timely fashion. In no event may a grievance be deemed timely after sixty days have
elapsed from the date of the employer action.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.1-05. Waiver of agency grievance procedure.

A waiver of the agency grievance procedure is allowed by mutual agreement of the employee and
appointing authority. The waiver must be signed by both parties within fifteen working days of the
employer action. Upon obtaining the waiver, the employee may appeal directly to human resource
management services in accordance with section 4-07-20.1-08. An additional fifteen working days is
not available if the requested waiver is denied.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.1-06. A regular employee may appeal to human resource management services.

A regular employee may appeal an employer action to human resource management services if:
1. The employee has processed a grievance through the agency grievance procedure and is
dissatisfied with the result;
2. The employee and the appointing authority have agreed to a waiver of the agency grievance
procedure; or

3. The agency has not established a grievance procedure or has failed to respond to a grievance
in a timely manner.
No other employer actions except as defined in this chapter or otherwise specifically provided by
administrative rule are appealable to human resource management services.
History: Effective November 1, 1996; amended effective July 1, 2004.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.1-07. Limitations for reduction-in-force appeal.

A regular employee may appeal a reduction-in-force only on the basis that the agency did not utilize
a uniform comparative analysis as required by section 4-07-11-03 or that the reduction-in-force was
conducted in a discriminatory manner that would violate the state's policy against discrimination as
stated in North Dakota Century Code section 14-02.4-01. A former regular employee who was reduced
in force may appeal a denial of reemployment only on the basis that the agency did not follow section
violate the state's policy against discrimination as stated in North Dakota Century Code section
14-02.4-01. The assessment of whether an individual meets the qualifications necessary for successful
performance shall remain with the agency.
History: Effective November 1, 1996; amended effective July 1, 2004.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
### § 4-07-20.1-08. Procedure for appeals of employer actions to human resource management

services.
1. The employee shall file the properly completed prescribed appeal form with the director,
human resource management services. The appeal form must be mailed or transmitted by
electronic means and must be received in the human resource management services office by
five p.m. within fifteen working days of service of the notice of results of the agency grievance
procedure or within fifteen working days from the date of the waiver. An additional fifteen
working days is not available if the requested waiver is denied. The date of service of the
notice shall be considered to be the date transmitted or delivered by electronic means. The
agency shall prepare a certificate of service or provide reliable means, to show proof of the
date transmitted or delivered by electronic means.
2. The director, human resource management services, shall within two working days submit a
written request by electronic means to the director, office of administrative hearings, to
conduct a hearing on behalf of the division and shall forward a copy of the appeal form to the
appointing authority.
3. The administrative law judge shall initially consider whether the appeal was filed within
required time limitations. If the administrative law judge determines the time limitations have
not been met, the administrative law judge shall prepare an appropriate order dismissing the
appeal, which shall be final, and provide a copy of it to the parties. The administrative law
judge may, for good cause shown, waive the time limitations for filing an appeal. Good cause
means those circumstances that reasonably and without any fault on the part of the appellant
prevented the filing of an appeal in a timely fashion. In no event may an appeal be deemed
timely after sixty days have elapsed from the date of the employer action.
4. The administrative law judge shall consider whether human resource management services
has jurisdiction over the subject matter of the appeal and whether all rules and regulations
were followed in the internal agency grievance process. If the administrative law judge is

unable to establish whether human resource management services has jurisdiction over the
subject matter of the appeal or whether the appropriate rules were followed, a hearing may be
conducted to ascertain the facts related to those issues.
5. If the administrative law judge determines that human resource management services does
not have jurisdiction in the matter of the appeal, the administrative law judge shall prepare
findings of fact and conclusions of law, if appropriate; issue a final decision dismissing the
appeal; and provide a copy of them to the parties.
6. If it is determined that human resource management services has jurisdiction over the appeal,
the administrative law judge shall schedule a hearing. The administrative law judge shall
conduct the hearing and related proceedings, receive evidence related to the issues, prepare
findings of fact and conclusions of law, and issue a final decision.
7. The administrative law judge shall notify the employee and the appointing authority of the final
decision by sending each of them a copy of the findings of fact, conclusions of law, and final
decision. Notification shall be accomplished in the same manner as for notification of final
orders required by subsection 3 of North Dakota Century Code section 28-32-39. The parties
shall implement the final decision within any time periods specified by the administrative law
judge.
8. The administrative law judge shall return the completed appeal file to human resource
management services by electronic means.
9. Any party to the appeal may review the recordings of the hearing by making a request to
human resource management services by electronic means.
History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008; July 1, 2010;
January 1, 2024.
General Authority: NDCC 54-44.3-12(1)
Law Implemented: NDCC 54-44.3-12.2
