WHEN PAST PRACTICE TRUMPS CONTRACT LANGUAGE
What do you do if management suddenly announces that despite following a certain past practice for years, which obviously conflicted with the contract language, it is now pronouncing the past practice dead and insisting the parties immediately follow the clear and unambiguous contract language in the future? The first thing you would do is figure out whether you want to object, and if you do the second thing would be to read the newly issued decision AFGE, 66 FLRA 963 to refresh your recollection of how the law treats those situations. Continue reading
PAYROLL DEBT FOLLOWS FED TO THE GRAVE & BEYOND
The U.S. Court of Appeals recently issued a decision that should serve as a warning to any federal employee who thinks s/he might be getting too much money in a paycheck. Union leaders should also take notice because illegally structured grievance settlements distributing money improperly to members can also create employee debts that their survivors might have to pay off, with interest, after the fed dies. Continue reading
HOW TO USE FEDSMILL FOR MAX VALUE
What do you do with the FEDSMILL posts you get? If you read them, that’s good because we started this blog in order to boost everyone’s awareness of what rights employees have and how they can be enforced. However, we are hoping for a little more than you reading the posts. Ideally, you make sure that your colleagues involved in labor-management representation work also know about us and, if they do not subscribe, at least get an occasional post forwarded to them by you. But even better than that would be to pass some posts along to bargaining unit employees. Lots of union locals have a hard time keeping their web site current which is why we long-ago gave them permission to post our stuff on their site to get information to the average employee who, frankly, knows very little about his/her rights. Union locals that know the value of pushing information out to members, rather waiting for them to come to the union web site, also have out permission to e-mail copies of our posts to unit and/or union members. All too often, employees do not join a union because they have no idea of what a union representative can do for them. FEDSMILL has literally hundreds of examples of how big employees can win if they stand up for themselves. CSRA, FMLA, FLSA, USERRA, ADEA, ADAAA, PDA, WPA, CRA, 5 CFR, 5 USC, Collective Bargaining Agreements, etc. are loaded with rights and protections that the American education system neatly keeps hidden from its young as they prepare for decades of work. To be blunt, kids come out of 12 years of American schooling knowing more about the War of the Roses and the chief export of Zambia than they do about their rights as employees.
“FMLA-PLUS” LEAVE” WHAT IS IT?
Over the last decade or so the idea has slowly taken hold that an employee can be entitled to even more time off the job beyond what FMLA might give him/her. The basic theory is that even though FMLA leave runs out, the various disability protections statutes still entitle a disabled employee to more time off the job if it is a reasonable accommodation given the circumstances. But the spreading acceptance of the idea has not stopped some folks from pushing back against any more time-off beyond FMLA. Two recent court decisions found in favor of those trying to limit disabled employee rights. We thought you might like to see how those folks are making their case and what you should anticipate having to deal with in order to cut off their chances of success. So, we are passing along a posting from FMLA Insights that cover the issue well.
UNION MEMBERSHIP CONTINUES TO GROW DESPITE YOU KNOW WHAT
Given that we found it reassuring to read a recent Washington Post report about unions adding more and more new members despite the Washington political climate they have had to live within since last January, we thought you might too. So we are passing along a link to the story and let’s hope all unions achieve a similar membership increase to what AFGE and NFFE report to the Post writers it is on target to reach this first year of the new Administration.
JUST 10 DAYS OF HARASSMENT MERITS $75,000 IN DAMAGES & MORE
An employee of the Federal Bureau of Prisons filed a formal EEO complaint in which he alleged that from April 15 through April 24, 2013, several senior management officials subjected him to a hostile work environment because of his race (Caucasian), sex (male), and disability (hearing loss). Specifically, the employee alleged that he was subjected to harassment in the form of jokes, comments, and ridicule with regard to his hearing impairment. The Judge agreed with the employee and ordered the agency to pay the employee $75,000 in compensatory damages. The agency was stunned that just ten days of illegal harassment merited so much money and asked EEOC to review the judge’s decision. Here is why the EEOC not only agreed with the Judge but also ordered the agency to restore 180 hours of leave to the employee. Continue reading
A FMLA SMACKDOWN
Our blogging colleagues over at FMLA Insights just posted a wonderful story about an employer who refused to let an employee’s son call in for him or her to explain a sudden absence. When the employee did not call, it fired her. The story ends well with the employee getting reinstated with a lot of money, but is also useful because it (and the actual court decision it is based on) explain when an employer must accept someone calling in for an absent employee.
Posted in FMLA
EEOC ORDERS 19 YEARS OF BACK PAY
An employee filed an EEO charge in 1998 claiming she was being harassed because of her race, national origin, color, disability, age, and prior EEO activity. Just last month after years of deliberate efforts by the agency to drag the case out, EEOC threw up its hands and imposed a default judgment on the agency for failing to cooperate in the appeal. The employee also filed another complaint around the same time over a denied promotion from a GS-9 to GS-11. Four years later the agency removed the employee in 2002. EEOC ordered the agency to not only reinstate her with backpay beginning in 2002, but also to promote her retroactive to 1998. Toss in interest and the continuing investigation into paying her damage on top of the back pay and this agency is looking at a check for about $1 million. (EEOC left the agency a chance to prove that the 2002 removal was not for discriminatory reasons which would substantially reduce the money owed.) Nonetheless, this is yet another case demonstrating the power of the right of an employee to back pay going back decades if need be. Agencies need to keep that liability in mind when delaying resolution of a dispute. Employees and unions need to keep this and similar decisions imposing back pay long into the past when agencies try to bluff that decade-old violations cannot be legally remedied. Check out this brand new decision titled Amina W., V. Rick Perry, Secretary, Department of Energy, Appeal No. 0120113823.
NEGOTIATIONS TRAINING BY MASTER NEGOTIATORS
Ask the average LR Specialist or union rep to list the various stages of the mid-term bargaining process and you are likely to hear a list of five or six, e.g., change is proposed, the union submits proposals, face-to-face bargain, mediation, impasse, agreement. While each is a recognized stage in the process, the truly experienced negotiators (or what might be called Master Negotiators) think of it as having many more. Listed below are the 20 discrete parts they typically plan around. The value of looking at many distinct pieces is that each has its own legal and other subtleties that Master Negotiators on either side of the bargaining table can exploit to gain an advantage or simply use to help both parties get over a hurdle. For example, there is significant FLRA case law spelling out rules and/or options at each stage as well. Leading a bargaining team without knowing the tricks, traps, techniques, and tactics of each stage is not a wise move. In fact, it is reckless. That is why we are so enthusiastic about the training Learning Everywhere® offers on federal sector mid-term bargaining. Their trainers are actual chief negotiators who have sat on both sides of the table, not merely neutrals or academics who have observed, read about, or studied what the best Chief Negotiators do. They know the FLRA precedents and FSIP tendencies to rely upon and the ways to squeeze out an advantage over the other side of the table. Continue reading
EEOC ENFORCES 9 YEARS OF BACK PAY
We can’t say enough about employees (and unions) who stay in a fight with their agencies for years and years to force the agencies to pay every dime owed. No deals, no settlements, no compromises. The latest bundle of decisions out of the EEOC contains just such a case where the FBI forced a disabled employee to quit her Security Specialist job by denying a reasonable accommodation. The employee’s doggedness through the EEOC charge and complaint stages paid off big time with an EEOC order that she be paid $481,878 in back pay, another $53,000 in interest, and $30,000 on top of that for compensatory damages. While it is satisfying to win even a partial victory, it is an entirely higher level of joy to get everything you had coming to you. So, here is a very sincere, “Congrats” to Kesha who just took Attorney General Jeff Sessions to the cleaners in Kesha Y v. Jeff Sessions, Attorney General, DOJ (FBI) EEOC No. 0120121339 (2017)