Customs and Border Protection (CBP) established a push-up requirement for its law enforcement officers.  It is unclear whether they pulled the number of push-ups required out of thin air or from professionally developed study establishing a verifiable job-related connection between the number required and success in the job.  Well, over time a significantly greater number of women failed to meet the push-up standard than men.  That resulted in women losing out on the job more often than men due to this requirement.  At some point, an employee or two decided to push back against CBP and found a law firm that would represent her and all women who were similarly denied the job during the probationary period. That firm has decided this case is significant enough that it is posting on its web site all the important documents in the case so that these women can keep up with developments. Check out EEOC’s preliminary decision approving the firm’s ability to deal with this as a class action.

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We have kept an eye on what the EEOC and courts are doing with the right of a disabled employee to demand a reassignment to an open position as a reasonable accommodation. EEOC has not waived from its insistence that they do have some level of right to the open job if otherwise qualified. Four years ago we reported on a case out of one federal circuit court that agreed with EEOC. See “Another Right to be Reassigned.” Now another circuit court has taken the opposite position. See the Jackson-Lewis article entitled, “Appellate Court Holds that ADA Does Not Require Reassignment Without Competition.” Stay close to competent legal counsel if you get involved in a disabled employee’s request for a reassignment. 

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What’s a “FUBAR?” It is shorthand for pronouncing something “Fouled Up Beyond All Repair,” although there are more verbally assertive versions. We use it to label those MSPB and FLRA cases that screw up the lives of LR practitioners by making day-to-day operations more complicated and risky rather than less. On the brink of the holiday season peak the FLRA appears to have gifted us with another one in AFGE, Local 1698 and Naval Supply Systems Command, Pennsylvania, 70 FLRA 96 (2016). Continue reading

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While we hope that no one on either side of the table has to deal with too many adverse actions, we know at least a few of you do a dozen or more oral replies and full hearings a year involving them. By this time you probably know a lot about the process, but then again maybe there are a few things you missed. So, you might want to check out MSPB’s “Primer.” Among our favorite sections are the following:


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Some people put religious objects in their cubicle or office. Maybe it is a crucifix, mezuzah, kirpan, inverted pentacle, mandala, or rune. But we have to admit that we had never heard of someone putting an actual crown of thorns in her cubicle.  When one employee did in the notoriously conservative Christian community of Colorado Springs it apparently freaked out some of her co-workers who kept religious objects of their own on the desk.  They allegedly complained to the management that the crown said something about the woman’s mental stability and they were worried it could be used as a weapon. In any event her managers asked her to remove the crown and the employee filed an EEO charge alleging religious and disability discrimination. Continue reading

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FLRA popped out an interesting case just before time ran out in 2016 that addressed an agency’s ability to change how it deals with union staff who are not now (and maybe never were) federal employees. Does the agency have to serve notice on the union and complete bargaining before it can change, for example, the security procedures the non-fed union staffer must follow to enter the agency’s building? After all, non-fed union staffers aren’t any different than any vendor or repair technician seeking to enter the building. Right?

No, Wrong! The Authority held yet again that it changes the conditions of employment for unit employment when the agency changes the procedures or rights of the union staff those employees rely upon. See VA, Richmond, VA and AFGE, Local 2145, 70 FLRA 119 (2016).   See also Philadelphia Naval Shipyard and MTC, 4 FLRA 255 (1980), and Bureau of Indian Affairs, Isleta Elementary School, Pueblo of Isleta, NM and AFT, Indian Educators Federation, 54 FLRA 1428 (1998).

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A hospital granted some employees a waiver from its mandatory flu vaccine program based on religious objections. But apparently it decided to get into whether a person’s particular religious beliefs are worthy of being considered religious. EEOC pulled the hospital up short and also pulled $300,000.00 out of the hospital treasury for six harmed employees denied a waiver. We thought it did a good job in its press release explaining what managers cannot do when faced with a request for a religious accommodation, “The decree also requires that when considering requests for religious accommodation, the Health Center must adhere to the definition of ‘religion’ established by Title VII and controlling federal court decisions, a definition that forbids employers from rejecting accommodation requests based on their disagreement with an employee’s belief; their opinion that the belief is unfounded, illogical, or inconsistent in some way; or their conclusion that an employee’s belief is not an official tenet or endorsed teaching of any particular religion or denomination.”

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It is hard to imagine that a diabetic employee can still be treated this badly in the 21st century, but maybe the Miami IRS office stopped tracking time somewhere in the 1930s. In any event, a GS-11 IRS Revenue Officer opted to file a complainant with the EEOC rather than use the grievance-arbitration process.  That gave her control over who represented her, whether her case went to a hearing, and what kind of settlement she would accept, if any.  IRS management put her through a four-year slog there before it agreed to follow an EEOC order to give her a private area to check her blood sugar, tune her insulin pump, and eat whenever her instruments said she must. Up until that EEOC order, her manager insisted that she wait until normal break times and use the women’s room for any private needs. We recommend you get a copy of Denese G. V. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Appeal No. 0120141118 (2016) if you are involved with a diabetic employee whose requests for reasonable accommodation are being given only generalized consideration.  The Commission went out of its way in the decision to make it clear that agencies are obligated to respond to each reasonable accommodation request on an individualized basis.  In other words, not all diabetics are the same or need the same assistance. EEOC also ordered the agency to conduct an investigation to determine how much she is owed in compensatory damages.  We are betting it is north of $100,000.00 based on the public embarrassment her manager made her endure, e.g., she had to hold her insulin pump up in a group meeting to show everyone she was not texting while the manager spoke.  And then her attorney should be able to justify about the same amount in fees given how long and hard he had to push the IRS to respond properly.

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 If the Washington Post story is accurate, and we highly suspect it is, the Dept. Of Homeland Security just agreed to pay about 100 employees an average of $240,000.00 each in back pay to make up for promotions unjustly denied them as long ago as 1990.   Our compliments to these employees for hanging in there so long and to the law firm that made it all happen. 

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Understanding the Family Medical Leave Act (FMLA) is a requirement for representatives on both sides of the table. We have spent some time touching on it in Fedsmill, but there is a good series coming out of the firm of Jackson Lewis that we recommend, especially if you are the local union or ER/LR expert in FMLA matters. Check out, “What Am I Doing Wrong? Common FMLA Mistakes” a four-part series so far that we hope continues for a while. We are linking you to the fourth in the series but you can catch up by using the links at the end of the post. Want even more, checkout, “Top Five FMLA Mistakes.”

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