Who May File an Appeal?
This is offered as general information on the appeal process. All appeals of employer actions, as listed below, are subject to the North Dakota Administrative Rules, Chapters 4-07-20.1 and 4-07-20.2. If information in this guide conflicts with any rules or statutes, the rules and statutes shall take precedence.
Employees
Appeals are limited to employees who are in positions classified by Human Resource Management Services and who have successfully completed a probationary period. The following employer actions may be appealed to Human Resource Management Services:
- demotion
- dismissal
- suspension without pay
- forced relocation
- reduction-in-force
- reprisal
- discrimination
Employees must submit their appeals within 15 working days of notice of the results of the agency grievance procedure or within 15 working days from the date of a waiver of the agency grievance procedure.
Job Applicants
Job applicants for positions in the classified service may file an appeal to Human Resource Management Services based upon discrimination in employment.
State policy prohibits discrimination based on:
- race
- color
- religion
- sex
- national origin
- age
- mental or physical disability
- marital status
- status of receiving public assistance
- participation in lawful activity, off the employer’s premises, during non-working hours that is not in direct conflict with essential, business-related interests of the employer
- political opinions or affiliations
Veteran’s Preference
Job applicants claiming violation of veteran’s preference law NDCC 37-19 must file their claims through the North Dakota Department of Veterans Affairs, PO Box 9003, Fargo, North Dakota 58106-9003; phone 239-7165.
Employee Appeal Procedures
Waiver
An employee who has been subjected to an employer action may request a waiver of the requirement to complete the agency grievance procedure. The employee and the employer must both sign a written agreement to waive the agency grievance procedure within fifteen (15) working days of the date of the employer action. Once the employee has the written waiver, the employee must file a written appeal to Human Resource Management Services using the Employee Request for Waiver of Internal Agency Grievance Procedure form. The written appeal must be postmarked or delivered to Human Resource Management Services no later than fifteen (15) working days from the date of the waiver.
Appeal Process
Step 1. In the absence of a waiver, an employee who intends to file an appeal must begin the agency grievance procedure within established time limits. Failure to do so may result in loss of right to appeal to Human Resource Management Services. If an agency has no grievance procedure or has failed to respond to a grievance in a timely manner, an employee can appeal directly to Human Resource Management Services.
Step 2. Within fifteen (15) working days of the notice of the results of the final step of the agency grievance procedure, the employee must submit an appeal to:
Director, Human Resource Management Services
600 East Boulevard Avenue
Bismarck, ND 58505-0120
A properly completed appeal must be submitted on the Appeal to ND Human Resource Management Services form. For assistance, please reference the Guide for Administrative Appeals to Human Resource Management Services.
Step 3. Human Resource Management Services requests an administrative law judge from the Office of Administrative Hearings be appointed to hear the appeal. The administrative law judge conducts evidentiary hearings on behalf of Human Resource Management Services.
The administrative law judge considers whether the appeal was filed within required time limitations and whether the appeal meets the requirements of rules and statutes governing appeals. If it is determined the time limitations or other requirements have not been met, the administrative law judge will issue the appropriate findings and a final order dismissing the appeal.
If it is determined that the appeal is timely and meets all other requirements, the administrative law judge will schedule and conduct an evidentiary hearing.
Step 4. Following the hearing, the administrative law judge issues findings of fact and conclusions of law and a final order and provides them to the parties and Human Resource Management Services.
Administrative Hearing
The purpose of the hearing is to gather the facts and evidence to determine whether the appellant’s rights were observed in the process and to analyze the evidence and apply the law to make a final decision as to the matter under appeal.
The administrative hearing is not a court hearing; however, it is a quasi-judicial proceeding. State agencies are represented by an assistant attorney general; county agencies are represented by an assistant state’s attorney. Appellants may represent themselves at the hearing or they may hire an attorney to represent them.
Documentation and Evidence
The burden of presenting evidence to support a fact or position rests with the party claiming the fact or position. Relevant documentation and other evidence may be presented by both the employer and the appellant. The administrative law judge determines whether the documentation or other evidence is admissible. The original or a copy of all documents must be provided to the administrative law judge, with an additional copy for the opposing party.
Witnesses and Subpoenas
Either party may call witnesses to present relevant testimony in support of their case. Witnesses are sworn to ensure the testimony they give is true upon penalty of perjury. Both parties have the right to cross-examine witnesses.
Either party may request a subpoena to call a witness to testify or for production of documents. An attorney representing a party may issue a subpoena. A party not represented by an attorney must send a written request to the administrative law judge. The party requesting the subpoena is responsible for its timely service, as well as payment of all fees, including witness fees and mileage, associated with its service.
Final Argument
When all evidence has been presented, both parties will have an opportunity to present final argument.
Final argument may be in the form of memoranda, briefs, or oral argument, at the discretion of the administrative law judge.
Brief
A "brief" is a written argument focused on legal points and authorities. It is used to outline the essential facts of the case and the questions of law involved.
Memorandum
A "memorandum" is a written argument in support of a position, much like a brief but in less formal style.
Oral Argument
"Oral argument" is verbal legal argument, its purpose being to persuade the administrative law judge to decide in favor of the party giving the argument.Oral argument is usually given at the conclusion of the hearing. Memoranda or briefs are submitted later, at a time specified by the administrative law judge. Final arguments may not contain new information that was not presented at the hearing.
Post-Hearing Process
Transcripts
Either party may request a typed transcript of the hearing. The party who makes the request is required to pay the cost of preparing the transcript. If neither party requests transcript preparation before the administrative law judge's final order, but the matter is later appealed, the party appealing is required to pay the costs of preparing the record, including the transcript.
Requests for transcripts must be made to Human Resource Management Services.
Appeal File
Human Resource Management Services maintains the original record of the proceedings.
The agency record of the proceedings contains the documents set forth in NDCC 28-32-17(4).
Petition for Reconsideration
Any party who is aggrieved by the administrative law judge's final order may file a petition for reconsideration within 15 days after notice has been given as provided in NDCC 28-32-40.
Appeals to Court
Appeal to District Court - An appeal of the administrative law judge's final order must be made to District Court within thirty days after notice of the order was given.
Appeal to Supreme Court - An appeal to the Supreme Court must be made within sixty days after the service of the notice of entry of judgment in the District Court. (9/04)