3 FAM 4420
GENERAL PROVISIONS
(CT:PER-925; 09-24-2018)
(Office of Origin: HR/G)
3 FAM 4421 STATEMENT OF PURPOSE
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
These regulations establish procedures to provide U.S. citizen members and former members of the Service (and their survivors) a fair and
effective system for the resolution of individual grievances that will ensure
the fullest measure of due process. No regulation promulgated in this section
shall be interpreted or applied in any manner which would alter or abridge the
provision of due process as intended by the Congress in section 101(b) of the
Act.
3 FAM 4422 GRIEVANCE CONCERNING FORMER
MEMBERS
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
Within the time limitations of 3 FAM 4427,
paragraph a, a former member of the Service or the surviving spouse (or, if
none, another member of the family) of a deceased member or former member of
the Service may file a grievance under this subchapter only with respect to
alleged denial of an allowance, premium pay, or other financial benefit to
which a member claims entitlement under applicable laws or regulations.
3 FAM 4423 DISCUSSION OF COMPLAINTS
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. Every effort should be made to settle any members
complaint informally, promptly, and satisfactorily.
b. Supervisors and other responsible officers should
encourage members to discuss complaints with them and should respond in a
timely manner to resolve the complaints.
c. A member, initially, should discuss a complaint
with the members current supervisor or with the responsible officer who has
immediate jurisdiction over the complaint to give that person an opportunity to
resolve the matter before further steps are taken under these procedures.
d. Nothing in these procedures prevents a grievant from
seeking guidance from any official who might be helpful in respecting the
submission of a grievance or its resolution.
3 FAM 4424 FREEDOM OF ACTION
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. Anyone filing a grievance (herein after referred to
as the grievant) and any witness, labor organization, or other person
involved in a proceeding hereunder shall be free from any restraint,
interference, coercion, harassment, discrimination, or reprisal by virtue of
participation in those proceedings. The foreign affairs agencies recognize
their obligation to ensure compliance with this section. Any person subject to
or having immediate knowledge of any alleged breach of this section should call
it to the attention, through appropriate channels, of the pertinent foreign
affairs agency. The foreign affairs agency, upon receipt of this complaint,
will identify the case and make its substance known to the exclusive
representative, if any, without disclosing the identity of the source of the
complaint or the other individuals involved. Normally, such allegation should
be brought to the attention of the senior agency official at post; in Washington to:
State Director, Grievance Staff
USAID Chief, Labor Relations Staff
USAGM Chief,
Labor and Employee Relations Division
Commerce Chief, Office of Foreign Service Personnel
USDA FAS: Chief, Employee & Labor Relations
Branch
Farm Service Agency
APHIS: Director, Resource Management Support,
International Services,
Animal & Plant Health Inspection Services
b. The grievant has the right to a representative(s) of
his or her own choosing (not more than one of whom at any one time shall be
granted administrative leave if an employee of a foreign affairs agency) at
every stage of the proceedings under this subchapter.
c. The grievant and any representative of the grievant
who is a member of the Service or employee of a foreign affairs agency shall be
granted reasonable periods of administrative leave to prepare and present the
grievance and to attend proceedings under 3 FAM 4400. In order to prepare the
grievance for agency review, the member shall be granted a reasonable amount of
administrative leave to research pertinent laws or regulations, secure
documentation in support of the grievance, and interview witnesses. Scheduling
and use of administrative leave shall be arranged with the employees
supervisor.
d. Each party (including an exclusive representative
appearing in the proceedings) shall be entitled to examine and cross-examine
witnesses at the hearing or by deposition and to serve interrogatories upon
another party and have such interrogatories answered by the other party unless
the Board finds such interrogatory irrelevant, immaterial, or unduly
repetitive.
e. No record of:
(1) A determination by the head of the foreign affairs
agency to reject a recommendation of the Foreign Service Grievance Board;
(2) A finding by the Grievance Board against the
grievant; or
(3) The fact that a grievance proceeding is pending or
has been held, shall be entered in the personnel records of the grievant
(except by order of the Grievance Board as a remedy for the grievance) or those
of any other individual employee connected with the grievance.
f. Nothing in this subsection shall prevent a grievant
from placing a rebuttal to accompany a record of disciplinary action in such
grievants personnel records, nor prevent the foreign affairs agency from
including in such file a response to such rebuttal, including documenting those
cases in which the Board has reviewed and upheld the discipline. The agency shall
make available to the grievant a copy of its response prior to placing it in
the grievants file.
g. The agencies and the exclusive representatives shall
have access to the grievance records under appropriate safeguards to preserve
confidentiality.
h. The Board may enforce compliance with paragraphs d
and e above.
3 FAM 4425 RESTRICTED COMMUNICATION
CHANNELS
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
There are hereby established communications channels
restricted for use in grievance matters. The channels shall be safeguarded as
specified.
3 FAM 4425.1 Between Employee and
Exclusive Representative
3 FAM 4425.1-1 At Post
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
An employee may use the posts communications facilities
to seek the advice of the exclusive representative regarding the filing or
processing of that employees grievance, or to designate the exclusive
representative as the employees representative to process the grievance.
3 FAM 4425.1-2 At Washington
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only
The exclusive representative may use the agencys
communications facilities to respond to messages from an employee at post
regarding matters referred to in 3 FAM 4425.1-1.
3 FAM 4425.2 Between Employee and
Agency Grievance Staff
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
The employee and the agency grievance staff may use the
appropriate communications facilities to communicate on matters of a grievance
filed with the agency. These facilities may not be used to file, amend, or
supplement a grievance against specific authorization.
3 FAM 4425.3 Between Employee and
the Foreign Service Grievance Board
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
After an employee has filed a grievance with the Foreign
Service Grievance Board, communications may be directed to the Board. The
representative and the agency may use the grievance channel.
3 FAM 4425.4 Captions
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
The following captions should be used:
(1) ERG ChannelFor communications between the
employee
and the exclusive representative;
(2) AGS ChannelFor communications between the
employee
and the agency grievance staff; and
(3) Grievance ChannelFor communications between the
Channel
employee and the Foreign Service Grievance Board.
3 FAM 4425.5 Communications
Safeguards
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
In the exercise of the right to communications outlined in
3 FAM 4425.1
through 3 FAM
4425.3, the parties must be assured the maximum confidentiality consistent
with 3 FAM 4424
and 5 FAM. Telegrams shall be approved by the authorizing official designated
by the appropriate agency or post. The authorizing official shall not retain a
copy of the communication after approving it for transmission, nor provide
copies to any other person or office. The communications center shall
distribute copies of the telegram only to the addressee.
3 FAM 4425.6 Preparation of Restricted
Communications Channels
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. Parties preparing and submitting telegrams for
transmission by the restricted communications channels under these regulations
shall observe the requirements of 5 FAM and 5 FAH-1, the Correspondence
Handbook. The sending party shall:
(1) Properly caption the telegram;
(2) Clearly identify the sender; and
(3) Designate the precedence as routine and the
classification as Unclassified unless otherwise authorized.
b. These communications shall normally be subordinate
in priority to traffic involving the agency mission.
3 FAM 4426 ACCESS TO RECORDS AND
WITNESSES
3 FAM 4426.1 Agency Records
(Agency Level)
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. A grievant or grievants representative shall be
given access to the grievants own grievance file within 15 calendar days of a
written request to the appropriate agency grievance staff.
b. Other records normally available shall be supplied
by the agency, with copies on request within 15 days. Such records include all
records collected in the course of a disciplinary investigation, whether or not
relied upon to effect a disciplinary or security action. The agency may deny
such records under the exemption provisions of the Freedom of Information Act
(FOIA) or Privacy Act. Those relevant and material to the grievance but not in
immediate possession of the agency shall be supplied normally within 21
calendar days. If the records cannot be produced within that time period, the
grievant will be informed immediately of the delay and advised as to when
access to copies may be expected but in no case will access be granted later
than 42 days after the date of the initial request. This would also apply in
obtaining records from non-foreign affairs agencies.
c. A grievant who has formally requested records of
another foreign affairs agency for use in a grievance may notify the agency
grievance staff of the request. The appropriate grievance staff shall assist
the grievant in obtaining an expeditious response by notifying the requested
office that the records are required for administrative purposes.
d. All requests for assistance in obtaining records
under 3 FAM
4426.1, paragraphs b and c, shall specify the date of the request and the
office to which the request was addressed as well as the identity of the
records being requested.
3 FAM 4426.2 Agency Records (Board
Level)
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. If a grievant is denied access to any agency record
before or during the consideration of the grievance by the agency, the grievant
may raise such denial before the Board in connection with the grievance.
b. In considering a grievance, the Board shall have
access to any agency record as follows:
(1) The Board shall request access to agency records
which the grievant requests to substantiate the grievance if the Board
determines that such record may be relevant and material to the grievance; and
(2) The Board may request access to other records of
that agency, or the records of any other foreign affairs agency, which the
Board determines may be relevant and material to the grievance. The Board
shall be given access to records of the foreign affairs agencies involved
subject to the provisions of 3 FAM 4426.2,
paragraph c.
c. An agency shall make available to the Board an
agency record requested under 3 FAM 4426.2,
subparagraph b(1), unless the head or deputy head of such agency personally
certifies in writing to the Board that such disclosure of the record to the
Board and the grievant would adversely affect the foreign policy or the
national security of the United States, or that such disclosure is prohibited
by law. In addition, if the agency has denied a request for records under the
Freedom of Information Act (FOIA) or Privacy Act, the agency representative
shall specify the legal grounds of denying the request. If such a
certification is made or exemption invoked about any record, the agency shall
supply to the Board a summary or extract of such record unless the reasons
specified in the preceding sentences preclude such summary or extract.
d. If the Board determines that an agency record, or
summary or extract of a record, made available to the Board under 3 FAM 4426.2,
paragraph b, is relevant and material to the grievance, the agency concerned
shall make such record, summary, or extract (as the case may be) available to
the grievant.
e. In considering a grievance, the Board may take into
account the fact that the grievant or the Board was denied access to an agency
record which the Board determines is or may be relevant to the grievance.
3 FAM 4426.3 Access to Witnesses
(Agency Level)
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
The agency shall make available on administrative leave to
meet or respond, as appropriate, for questioning by the grievant or grievants
representative, any individual under the agencys control having knowledge of
facts giving rise to the grievance.
3 FAM 4426.4 Board Records
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
The parties and the grievant's representative shall have
access to the record of proceedings, including the decision of the Board.
3 FAM 4427 TIME LIMITS FOR GRIEVANCE
FILING
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. A grievance under these regulations is forever
barred unless it is presented to the grievants agency within 2 years of the
occurrence(s) giving rise to it, except that:
(1) In the case of a grievance which challenges
portions of a performance appraisal prepared by an employees rater, and only
insofar as those portions are concerned, the 2-year period may be extended by
up to 1 year from the date on which the rater ceased to supervise the employee;
(2) In the case of a grievance which challenges
portions of a performance appraisal prepared by an employees reviewer, and
only insofar as those portions are concerned, the 2-year period may be extended
by up to 1 year from the date on which the reviewer ceased to review the work
of the employee;
(3) In the case of a grievance which challenges
portions of a performance appraisal by both an employees rater and reviewer,
the 2-year period may be extended by up to 1 year from the date on which the
rater ceased to supervise, or from the date on which the reviewer ceased to
review the work of, the employee; and
(4) The maximum time for filing a grievance of a type
described in 3
FAM 4427 paragraph a, subparagraphs (1), (2) or (3), may not exceed 3 years
from the date of the issuance of the appraisal.
b. Notwithstanding 3 FAM 4427
paragraph a. above, a grievance concerning a performance appraisal or other
document in an employees performance file may be filed beyond the applicable
two- or three-year limit, provided:
(1) In the case of material of any age in an employees
performance file, the material is cited by a Performance Standards Board as a
basis for a determination that the employee should be separated for having
failed to meet the standards of performance for the employees class; or
(2) In the case of material no more than 5 years old
in an employees performance file, the material is cited by a Selection Board
as a basis for low-ranking the employee, and is alleged to be false and
prejudicial.
c. In applying 3 FAM 4427,
paragraphs a and b, to a grievance which alleges discrimination in violation of
any law, rule, regulations, or policy directive referred to in 3 FAM 4412, subparagraph
c(9), the references to 2 years shall be deemed to read 180 days subject to
paragraph d of this section.
d. If the occurrence(s) giving rise to a grievance
occurred while the grievant was assigned to a post abroad, the 180-day period
provided under paragraph c of this section shall not commence until the date on
which the assignment ends and the grievant departs post, or 18 months after the
last alleged violation, whichever is earlier.
e. There shall be excluded from the time limits
mentioned above any time during which the grievant was unaware of the grounds
of the grievance and could not have discovered such grounds through reasonable
diligence.
f. A grievance transmitted by a means which indicates
the date of transmission shall be deemed presented to the responsible official
(3 FAM 4432),
transmitted to a post or bureau (3 FAM 4433), or
submitted for agency review (3 FAM 4434), on
the date of its transmission; any other grievance shall be deemed as filed on
the date of its receipt.
g. If a grievance is not resolved under agency
procedures within 90 days after receipt by the agency, the grievant or the
exclusive representative (on behalf of the grievant) shall be entitled to file
it with the Foreign Service Grievance Board.
3 FAM 4428 RELATIONSHIP TO OTHER
REMEDIES
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. A grievant may not file a grievance with the Board
if the grievant has formally requested, before filing a grievance, that the
matter or matters which are the basis of the grievance be considered or
resolved and relief be provided, under another provision of law, regulation, or
Executive Order, and the matter has been carried to final decision under such
provision on its merits or is still under consideration. This provision shall
not apply to grievants who have filed a prohibited personnel practice charge
before the Special Counsel for the Merit Systems Protection Board.
b. If a grievant is not prohibited from filing a
grievance under paragraph a of this section, the grievant may file with the
Board a grievance which is also eligible for consideration, resolution, and
relief as a prohibited personnel practice complaint under the provisions of law
relating to the Merit Systems Protection Board or Special Counsel, or under a
regulation or Executive Order. An election of remedies under this section
shall be final upon the acceptance of jurisdiction by the Board.
c. 3 FAM 4428, paragraphs
a and b, shall not apply to any grievance with respect to which 3 FAM 4428,
paragraphs d and e, apply.
d. With respect to a grievance based on an alleged
violation of a law, rule, regulation or policy directive referred to in 3 FAM 4412, subparagraph
c(9), a grievant may either:
(1) File a grievance under this subchapter; or
(2) Initiate in writing a proceeding under another
provision of law, regulation, or Executive Order that authorizes relief, but
not both.
e. A grievant shall be considered to have exercised the
option under 3
FAM 4428 d. as soon as the grievant timely either:
(1) Files a grievance under this subchapter; or
(2) Initiates in writing a proceeding under such other
provision of law, regulation, or Executive Order.
3 FAM 4429 SECURITY CLEARANCES
(CT:PER-925; 09-24-2018)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
The agency will use its best endeavors to expedite
security clearance procedures whenever necessary to assure a fair and prompt
resolution of a grievance.