EEO CHEAT SHEET
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.
EMPLOYEE WINS BACK PAY RETROACTIVE TO 1996
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)
Posted in Back Pay
Tagged back pay
BECAUSE MANAGEMENT’S DECISION SHOCKED HER IT NOW OWES HER $$$$
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)
WHAT AGENCIES THINK WHEN UNIONS TERMINATE THEIR OWN LEADERS
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
HARVARD SAYS, “RESEARCH SHOWS UNIONIZED WORKERS ARE LESS HAPPY”
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.
WHEN IS AN ACTION ADVERSE ENOUGH FOR EEOC?
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.
AGENCY OPTIONS WHEN UNION LAWYERS LIE
This is a hypothetical; any connection to facts you may know of is purely coincidental. We have a great deal of respect for most union leaders and generally wish them the best. But every once in a while an unethical one slips through and behaves in a way that hurts employees and damages the image of all unions. Management can ignore them or they can act. We are rooting for them to act and want to outline how they might do it. Continue reading
CONGRATS TO NFFE, NWSEO & POPA
Not long ago we spotlighted AFGE not only for its monstrous increase in net membership last year, but for over 15 consecutive years of net growth. If you believe that membership growth is the surest sign that employees believe the union’s leaders are taking it in the right direction, AFGE could not have a more flattering piece of feedback. In that same piece we complimented NATCA for its continued net membership increases as well. Now that all unions have filed their Dept. of Labor report for FY 16 we checked in to see if any other unions continued to grow during a time when staffing numbers are decreasing. The news was good with NFFE, NWSEO and POPA all having had net increases. Although we can’t prove it, based on experience we strongly suspect that membership increases today are the result of wise, forward-looking, risk-taking decisions made five or more years ago to install a strategic approach to membership building. It is so much more than passing out a few flyers, small incentive checks, and a flashy PR material. So, Bravo and Encore to all of them who proved that membership growth is clearly possible at a time when staffing is decreasing.
A MODEST PROPOSAL FOR COLLECTIVE BARGAINING REFORM
Collective bargaining law, particularly 5 U.S.C. 7114(a)(1), should be changed to deny those unions that have chronically low membership the right to delay the implementation of agency proposed mid-term changes in the conditions of employment covered by 5 U.S.C. 7106(a) and (b)(1).
Although collective bargaining can generate many benefits for employees, agency managers and the public as recognized in 5 U.S.C. 7101, there is one part of it that all too often undermines efficient and effective government. It is not the need to negotiate a master collective bargaining agreement establishing policy on over 250 HR issues. The agency needs a policy on those issues anyway. Nor is it that employees can serve as union reps helping co-workers enforce their rights. If employees’ co-workers were not there to represent them, many employees would hire lawyers, greatly complicating matters for the agency. It is not even that agencies have to devote limited budgeted funds to pay the salary and benefit costs of employees working as union representatives during the workday. If the agency did not fund this, it would have to meet with union reps after hours or on weekends, substantially delaying many meetings and decisions. Continue reading
Posted in FLRA
Tagged csra rEFORM
ANOTHER PRESIDENTIAL BLUNDER HANDCUFFS AGENCY MANAGERS
A basic law of physics is that for every action there is an equal and opposite reaction. The President just reconfirmed his—let’s call it unfamiliarity–of that law by appointing the most anti-union group of alleged neutrals to the FSIP in the history of the Act. The uninitiated of the world unquestionably see that as a great thing for agency managers who will now win perhaps even more than the 90% of disputes that Becky Norton Dunlop’s Bunch delivered for agencies during President W’s term. However, those with actual experience and sophistication in labor relations know that appointing a union-hostile Panel undoubtedly will produce a union reaction that creates more problems for agencies seeking to make midterm changes. Let’s call them the unintended consequences of a poorly thought out decision. Continue reading
Posted in Bargaining, FSIP