On August 25, 2016 we posted a story about a D. C Circuit court decision holding that an employee may not file an EEO complaint over a lateral reassignment because the court did not consider that kind of personnel action to be an enough of an “adverse action.”  The Civil Rights laws and regulations require employees suffer a certain level of harm before they can file a complaint in order to prevent cases over frivolous slights, personality conflicts, and ego eruptions.  We expressed our disappointment at the time over the court’s narrow view of the law and insensitivity to how harmful a lateral reassignment can be.  However, the court has come to its senses and reversed itself, which opens the door for federal employees to challenge lateral reassignments or the denial of them as violations of the civil rights laws.  Here are the details on how to do it. Continue reading

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More than a few federal employees have been in this situation.  They got an increase in their pay check for what they thought was a long overdue raise, an award, a grievance settlement, or even a simple area pay adjustment.  It felt good and they started thinking about how to spend the extra cash. When they told a co-worker about the additional income and s/he said it did not sound right, the employee even checked with HR who assured her the extra money was correctly calculated. So, she spent it on a vacation, new car, college tuition, or whatever–only to learn a year or more later that the federal government decided it made a mistake sending her the money it did and it wanted it back—with interest.  When the employee went to see the same HR folks who assured her the payments were legitimate and correct, the HR staffer merely shrugged his shoulders and said, “Sorry, I guess I was wrong.  The only opinion that matters on alleged overpayments to the employee is the federal government’s.”  The employee appealed, but lost and when she asked the agency to waive her obligation to repay the money it refused.   When the employee said she did not have the money to repay, the feds said “Not to worry” because it was going to take some money out of every pay check until the debt was repaid—including her annuity checks if she retired before repaying it.  Continue reading

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Biff said it best on behalf of all those whose words are too often ignored when he uttered this line in “Back to the Future.” It was only last April when we explained the need for unions to think more creatively about remedies for ULPs and grievances with the posting entitled, “Aggghhhhhh! This Mistake Hurts!” That was about the fifth time in the six years we have been posting.  Yet, there is a decision coming out the full FLRA soon where once again the union (and FLRA’s General Counsel’s (GC) staff) failed to pursue all the remedies available to them. Continue reading

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Even if you heavily favor unions over management you have to admit that “Congrats” are in order for the Federal Bureau of Prisons based on 64 FLRA 775.  One of the most aggressive and talented unions in the country, AFGE’s Council of Prison Locals, filed a grievance against the Bureau claiming that overtime had been improperly assigned over the course of a year and asked for full back pay.  An arbitrator found that the agency violated the contract, but could not determine the specific employees entitled to a piece of a very big back pay pot or how much each was owed.  So, he told the agency to calculate the value of all the overtime improperly assigned and to divide that money equally among everyone who was even eligible for working the overtime. AND THAT IS WHERE THE BUREAU OF PRISONS KNEW THAT IT HAD CAUGHT THE ARBITRATOR, AND UNION THAT SUPPORTED THAT REMEDY, IN A VERY BIG BLUNDER. Continue reading

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We love blog posts that briefly list and describe arguments we can make on behalf of employees in one situation or another. They are great tools for structuring employee grievance interviews about the facts or for building up the agency rep’s anxiety with an extensive list of legal hurdles s/he will have to clear if the agency does not settle the case. The Boston Employment Attorney Blog has a wonderful one listing a dozen ways to prove an agency’s explanation for why it made a personal decision is “pretext,” which is legalese for pure BS. It is entitled, “Inferring Pretext in Employment Discrimination Cases: A Baker’s Dozen.”  It is something we recommend you bookmark or print and tuck in your EEO file for the next time a member walks in with a discrimination complaint. For those LR/ER/HR specialists looking to avoid problems and mistakes before they occur, this can be a powerful aid. For example, the next timea manager makes a personnel decision that just does not seem right, triggering your spidey sense, run the decision and any offered explanation for it through this list to identify the obvious weak spots or outright lies.

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Don’t let anyone ever tell you that a good labor relations fight is not worth the time and effort.  We just saw a case where someone applied for a job in 1996, was rejected and challenged the agency alleging its promotion procedures were illegal, among other things.  While the case took nearly two decades to work its way through all the motions and appeals, in the end the EEOC ordered the agency to retroactively give him the job retroactive to 1996 with back pay, interest, all the step increases and promotions he would have normally received, annual and sick leave earnings and retirement credit. Moreover, since he is one of a group or class of applicants who were similarly treated illegally this decision should lead to big back pay bucks for them. If you want details on how the applicant was able to go back more than two decades read. Congrats to the employee and his representative for insisting on every dime the agency owes t he employee. Brenton v. Dept. of Transportation, EEOC No. 01201630554 (June, 2017)

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We have posted more than a few stories on this blog about how employees can get compensatory damages when they are victims of discrimination.  That money is not only on top of any back pay and interest, but it can go as high as $300,000.00 extra.   All an employee need do to get this extra money from EEOC or an arbitrator is meet the criteria—and EEOC just issued a decision highlighting a little known way to meet the eligibility criteria.  It ordered an agency to pay an employee $10,000.00 in compensatory damages based solely on being “shocked” over not getting a job.  See Bernetta v. Betsy DeVos, Secretary of Education, EEOC No. 0120161513 (August, 2017).  The Commission does not take the shock effect on an employee lightly and in another recent case awarded $192,000 in compensatory damages to an employee shocked over being put on emergency suspension for reasons ultimately found to violate law. Erwin B., v. Megan J. Brennan, Postmaster, EEOC No. 0720150029 (March 2016)

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AFGE recently terminated its second highest elected official, which makes this a good time to think through how agencies might react and unions can counter those reactions. Continue reading

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Although we are not the kind of folks who believe something just because an Ivy League Institution says it is true, it is almost always worth it to at least listen to what they have to say. The Harvard Business Review just posted a piece on this topic. If nothing else union leaders should read through it to focus for a few minutes on whether their members are happy and what the union can do about it to improve their lot one way or the other.

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One of the reasons an agency will raise to dismiss an employee’s EEO complaint is that the action s/he complained of was not adverse enough to be actionable.  While EEO law does require that employee can only file complaints over actions that are adverse, there is a lot of debate about what makes an action adverse enough to meet that test.  Consequently, practitioners on both side of the table should keep an eye on significant case decisions addressing that question, and the Second Circuit of the U. S. Court of Appeals just issued one of them.  Check out the blog from Goldberg-Segalla entitled, “Second Circuit: Notice of Termination is an Adverse Action Even if Rescinded.”  The court held that an employee can file an EEO charge over a proposed termination letter even if the proposal is withdrawn before it is acted upon. The court’s reasoning is what an employee’s representative would need to follow to make a good case when there is a question of whether an action is adverse enough. If you want to read the case yourself, it is known as Alana Schutz v. the Congregation Sherith Israel.

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