LGBTQ PROTECTIONS ON THE WAY OUT?

It seems to us that there is a lot of money to be made betting that the new Supreme Court will obliterate the employment protections only recently won by the LGBTQ folks we all work alongside. A bunch of folks will leap with joy at the thought of returning to what they fondly call the “good old days” when it was OK to discriminate, harass, torment, and otherwise make work miserable for co-workers with a different sexual orientation. Moreover, once the new Court gives them the go-ahead at the job site, housing discrimination and the old Defense of Marriage Act proponents will fire up their efforts as well to also reap benefits from the President’s justice program. We are on the brink of an anti-LGBTQ feeding frenzy. Continue reading

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THINGS MARK CARTER DOESN’T GET

Mark Carter earns his living working for a law firm that brags about its ability to fight unions, not provide a balanced, low conflict, workplace. So, it should surprise no one that his gut reaction to anything a union wants is “Hell, no!”  Even though in his spare time, he comes to Washington, D.C. where he pretends to be a labor-management neutral as Chair of the Federal Service Impasse Panel there is not much of a chance that he thinks like a professional labor-management neutral. We thought it might be helpful to layout what goes totally over Mark’s head because of his bias.  Continue reading

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A RARELY USED EEOC REMEDY

The factual background section of this EEOC decision led with the following statement: “on April 14, 2015, the physician for the Primary Care Women’s Health Clinic (GYN) threatened Complainant when he gave her a hug, forcibly grabbed her neck, kissed her with his tongue, grabbed the belt loops of her pants, and told her she was turning him on and they needed to get together.” The facts went on to describe a campaign of harassment against the employee when she complained about physician before it found the Agency guilty of civil rights infractions.  Normally, the EEOC limits its penalty on the offending employee to ordering that s/he be trained in the law and “considered for” disciplinary action. But in this case, it was apparently so distressed by the physician’s behavior that it ordered an additional penalty on him, namely, … Continue reading

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FMLA QUIRKS QUIZ

Our fellow bloggers at Constangy, Brooks, Smith & Prophete, LLP do a good job of keeping up with FMLA developments.  This week they published a quiz for readers to test their own command of FMLA matters.  We thought you would enjoy it.  Here is the link.

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THE LONG LOST EEO REMEDY

A cardinal rule of filing an EEO complaint, whether as an employee or employee representative, is to request every potential remedy available. That raises the potential cost to the agency should it lose, and the bigger the liability the more likely an agency is to settle. A recent decision out of the EEOC highlighted an available remedy that is almost never pursued in employees’ complaints. In this case, the agency filled a 120 day temporary promotion slot without advertising the job. The employee alleged racial discrimination and won back pay as well as compensatory damages—the usual remedies.  However, … Continue reading

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BEING JAMES ABBOTT

Few people in this country have benefited from the democratic liberal agenda as much as James Abbott, the FLRA Member. We suspect his quality of life would be a tiny, tiny fraction of what it is today without the very hard-fought struggles of the leftwing political community. In return, he is brutally punishing liberals in the workplace, e.g., unions and the employees who believe in them. We will leave it to others to try to figure out why he is that kind of person.  We don’t do psychology at FEDSMILL.com. For now, we will settle for explaining why we say he is lashing out at the very people to whom he owes so much. Continue reading

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NEGOTIATORS TO THE RESCUE?

One of the most important jobs of a union negotiator is to try to fix things when the General Counsel or other litigators fail. A new Federal Circuit decision that an employee lost gives negotiators yet another opportunity to rescue employees.  FAA fired an employee because his urine sample showed evidence of cocaine usage.  The employee insisted he had never used cocaine and demanded FAA test the remaining half of his sample at a different lab.  The agency did and that lab also found evidence of cocaine use. Sounds bad for the employee, right? Continue reading

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HOW TO NEGOTIATE FOR PASS-FAIL EVALUATIONS

There is only one reason OPM demands that agencies use scored appraisals, e.g., scores ranging from one to five or from Outstanding to Unacceptable. Scores enable agencies to dilute the role of seniority and vets preference in calculating RIF retention lists. That’s the full extent of OPM’s interest. It has little to no interest in whether scores are used for promotion or awards, the other big money actions. All OPM requires in those actions is that the agencies give “due weight” to appraisal in promotion actions and that awards be limited to those rated Fully Successful or above. For all OPM cares, agencies can promote the lowest scoring applicant in the field and give her a whopper of an award so long as she is even hair above Minimally Successful. In fact, it has taken the position that it is a vital management right to select the least talented applicant and to award even those barely doing enough to avoid getting fired. Consequently, unions and agencies that want to use a pass-fail for everything other than RIF seem to have broad authority to do so. For example,… Continue reading

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HAS FLRA TAKEN SEMI-USEFUL POSITION ON ATTORNEY FEES?

Kiko and Abbott just ruled against a union in attorney fee matter that ironically might help other unions down the road.  To being with, they approved an arbitrator’s conclusion that the union was entitled to 140 hours of compensable fees for a hearing over a 14-day suspension.  Frankly, that seems to be reasonable for a hearing that lasted two days, especially given the obvious contempt Kiko and Abbott have for anything a union or an employee claims.  So, this might be a good benchmark for parties to focus on in futures fee settlement discussions or when assessing (or arguing for) their own fee requests. But, there is even more to the decision that might help unions. Continue reading

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IF YOU ARE COUNTING, …

today’s post is number 900 for Fedsmill. Can number 1,000 be that far away? Thanks to all the subscribers who keep us energized about this project.

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