TIME TO RECONSIDER THE “SEVERE & PERVASIVE” SEXUAL HARASSMENT STANDARD

If you have ever represented an employee complaining about sexual harassment you know that case law requires a very high degree of proof, i.e., you must prove the improper behavior was “severe and pervasive.” A good article out of a D.C law firm spells out how absurd that is and highlights the need for union reps to challenge that standard when they get into one of these cases.  It may turn out that the law remains as is, but that does not mean we should stop confronting the courts with the unreasonableness of that high bar.

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WHEN NOT TO GRIEVE WIGI DENIALS

 In virtually every other situation, the rule of thumb is that the deadline for filing a grievance begins to run when the agency issues its written decision. But not when a WIGI is involved–and not knowing the WIGI rule cost one employee a lot of back pay. Continue reading

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DALE CABANISS: RESTOCKING THE SWAMP

Our Commander-in-Chief (aka The Swamp Master) is about to release another invasive, slithering marauder into his swamp.  The mere mention of her name calls to mind such environmentally destructive forces as Dutch Elm disease, feral pigs, and the Northern snakehead. She is Dale Cabaniss, and Trump wants to put her in charge of the federal merit, retirement and insurance systems atop OPM Continue reading

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FMLA LEGAL UPDATE

The American Bar Association annually publishes a review of all the significant court cases around the country dealing with FMLA.  It is a great source of information for those folks—union and management alike—who do a lot of FMLA work. You will be surprised at some of the rights employees have under this statute.

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“ENGLISH! ENGLISH!”

That is what a manager shouted at two employees he found speaking Spanish while casually asking about each other’s families. When the employees filed a complaint alleging that was discrimination, the agency responded that surely a one-time incident criticizing employees for not speaking English did not tangibly harm the employee enough to rise to a formal violation of law. Well, EEOC said “Incorrecto!” It followed that up with an order that the agency compensate the employee for damage done them. Continue reading

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RIGHTS TO A SIGN LANGUAGE INTERPRETER

EEOC has just ruled on yet another case where an agency tried to skirt a employee’s right to a sign language interpreter. We thought it would be helpful to highlight the Commission’s simple statement about when an employee is entitled to an interpreter. Continue reading

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SHOULD FLRA REWRITE ATTORNEY FEE CASE LAW?

While abuses are not rampant, they are there. One lawyer will charge five times what another does to win the same kind of case. Hourly fees are based on seniority rather than the level of skill needed to do the work. Bills are padded easily by adding several time-consuming arguments to a case that needs only one. Arbitrators order back pay in group-wide grievances for all work—even the work done on behalf of those grievants who did not get back pay. Unions are allowed to keep secret from members and the public how they spend their attorney fee profits, which makes them all potential slush funds. We said it before and we will say it again, a few greedy attorneys are going to kill this goose that lays golden eggs for federal employee. But is it FLRA’s role to correct the situation? Continue reading

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EEOC RULES METHODIST NEED NOT WORK SUNDAYS

An interesting ruling came out recently in a case known as Stanton v. Brennan, USPS, EEOC No. 0120172696 (2019). The employee, a Methodist, claimed that his religion prohibited him from working on a Sunday. While his employer found someone to work his Sunday assignments, it required him to attend three training sessions on a Sunday.  When he refused to attend, it fired him.  EEOC reversed the firing finding the employee made a legitimate religious accommodation claim. Here is how it analyzed the facts and applied the law in its own words–with some highlighting of critical passages by us. Continue reading

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WHAT UNIONS CAN DO WHEN AGENCIES END NON-DISCRETIONARY BONUS PROGRAMS

Given the anti-employee bias, if not contempt, built into the DNA of the current FSIP many employers are taking the opportunity to terminate negotiated performance award programs, e.g., annual awards based on performance scores or gainsharing programs. There is not much unions can do to stop that, but there is something they can do to make employers regret it. Continue reading

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NFFE COULD FILE FALSIFICATION CHARGES AGAINST ABERDEEN MANAGEMENT

We would. An arbitrator found that an agency failed to follow the contract obligation about the background of those on a promotion “rating panel” and gave two grievants priority consideration.  It did not take a genius to make that call because the agency admitted in its written grievance response that did not follow the contract requirement. Moreover, the “rating panel” members did all those things rating panels do.  They interviewed candidates, they evaluated their response to pre-determined questions, and they gave the candidates scores. Those scores where used to determine who was highly qualified versus best qualified. It was going to be an “easy-peasy” decision against the agency if the agency reps did not do something. So, as best we can tell, the agency reps decided to tell a big fat lie. Apparently, the horrors of having to give two employees priority consideration and the threat to government, if not the free world, priority consideration creates, justified in their mind making up stuff. Continue reading

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