UNION REP TEST #14- FMLA, DISABILITIES, AND LIGHT DUTY

An employee, Jessie Crutch, had a long-time reasonable accommodation of being allowed to rest his hip for a few minutes every few hours while working as a warehouse custodian.  As the injury got worse and management less tolerant of his need to sit for a few times a day, he started to take time off using his FMLA rights to rest his hip.   When he returned after two days of FMLA leave, he submitted the same medical documentation he always did, namely that he could perform all his duties but needed intermittent periods to sit. However, his supervisor informed him that he would not be permitted to work again until he either submitted new medical documentation certifying that he no longer needed to rest his hip during the work day or he submitted a formal request for light duty.  So, Crutch went home.  While a sad situation for Crutch, are there any violations of law and regulation here? Continue reading

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OPPOSED TO VAX ON RELIGIOUS GROUNDS? PREP TO ANSWER THESE QUESTIONS

Unions are going to be hit with a wave of members asking for them to defend the member’s resistance to mandatory vaccinations based on religious grounds. Even if they push the member off into the EEO process to avoid the heavy cost of arbitrating each case individually, they can help the member by ensuring that s/he is ready to answer the questions that employers are getting ready to test the validity of their religious objection.  The folks behind the blog ”Employment and Labor Insider,” which is aimed at getting employers ready to deal with employee and union problems, put together a post entitled, “Vaccination Accommodation: Is That Religious Request Sincere?”  It outlines the steps and questions the typical employer is going to demand the employee answer before it grants a religious objection. Check it out and walk the employee through them before s/he gets deeply into the dispute.

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OFFICER CANDIDATE SCHOOL (OCS) FOR UNION REPS

On the way to my 2nd Lt. bars, OCS put me in a series of high stress mock combat situations to assess the quality of the decision I would make as the commander. One of them had me in charge of small squad behind enemy lines that had just stolen some highly valuable enemy intelligence.  We were racing to get back to our command post because the information would save the lives of dozens of soldiers. However, we had a severely injured soldier who was slowing us down with enemy troops closing on us.  If we left him and ran, the enemy might find out we had the intelligence and render what we had useless.  But we could not outrun them if we carried him.  Once the situation was set, the field judges asked me, “What are you going to do now lieutenant?” Actually, they shouted it and demanded an answer in 30 seconds with my squad members and designated severely wounded guy staring at me. I want to put you in a similar situation and ask you what you would do as the Executive VP of the local. Continue reading

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IS YOUR AGENCY IG OUTMANEUVERING YOUR UNION?

Late in the last century, AFGE started to launch EEOC class action claims against agencies on behalf of minority groups who were denied promotions and other benefits.  Then in the early years of this century unions were winning millions in grievance-arbitration proceedings showing that award and merit pay systems discriminated against women and minorities. We started FEDSMILL.com in 2011, in part, to drive home the point that if unions wanted to increase their effectiveness in the near future they had to very aggressively advocate civil rights issues like these rather than leave them to the EEOC process and private lawyers.  Well, from where we sit union activity in that direction has been less than exciting and now it looks as if the agency Inspector Generals are going to pull the rug out from any potential efforts unions might want to undertake.  For example, the Federal Manager’s Daily Report just circulated a story entitled, “SEC Lacks Data to Evaluate Evenness of Discipline, IG Says.” It outlines how it is ordering the agency managers to collect and act on the data needed to assess discrimination. It is a good guide for what data unions should be demanding at the bargaining table that the agency collect and make available to it.  Civil rights data collection, as well as data action, should be a union-led effort. Leave it to the agency and that is another reason employees do not need the union.

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EEOC SUES TO ESTABLISH COVID TELEWORK ADA RIGHT

Here we go. EEOC has gone to federal court to begin fleshing out a statutory right to telework under the ADA for those who qualify as disabled under the ADA and for whom telework would be a reasonable accommodation. Given how many Americans are resisting vaccinations or prefer a treatment of horse de-wormer and Clorox Chewables, this virus is likely to be with us for a long time. So, union reps should follow this case, as reported in Bloomberg News, closely to see what precedents are set for them to follow.  Below is a list of those physical conditions most likely to be recognized to qualify as disabling in a COVID rich workplace. Continue reading

Posted in Disability, Telework | Tagged | 2 Comments

WHEN THE GERMANS BOMBED PEARL HARBOR

One of the great lines from film is the Animal House passage where one of the frat boys declares that nothing is over until the frat declares it over—just like it wasn’t over for America when the “Germans bombed Pearl Harbor.”  Despite a minor historical flaw, it is a good piece of wisdom to keep in mind when negotiating over the arbitration procedure in a new contract. Continue reading

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BOSS’ ‘PARAMOUR PREFERENCE’ NOT DISCRIMINATION

Check out the story from Reuters outlining how managers can favor their in-office lovers (or just flings) over other employees without violating discrimination laws. But do not forget that even if this does not violate civil rights laws, it probably would violate a negotiated contract provision requiring fair and equitable treatment of employees.

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QUESTION: WHEN IS A PIP A ULP? ANSWER: ALMOST ALWAYS

The law requires that employee performance standards be written so as “. . . to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria.”  (5 USC 4302(b)(1))  That was put in the law to protect and benefit employees in the new system that made it easier to fire them for poor performance. “In requiring the use of objective criteria in performance standards and communication of the standards to employees, Congress also intended to ensure that employees were made aware in advance of what was expected of their performance.”  Siegelman v. Dept. of HUD,14 MSPR 326 (1983). Continue reading

Posted in Performance, Unacceptable Performance | Tagged | 1 Comment

OOPS, THEY DID IT AGAIN. SELECTING OFFICIALS WHO CAN’T EXPLAIN THEIR ACTIONS

Like Brittany Spears’ song, some selecting officials are still getting “lost in the game,”  and in the process hurting those around them.  In this case, an over 40 year-old employee applied for a promotion to a supervisory position and made the BQ list, only to be passed over for a 36 year old.  It was the 31st time since 2006 that he had been passed over for promotion, which also happened to be the last year the agency selected anyone older than 37 for promotion. When the employee filed an age discrimination complaint, the selecting official (SO) explained that he chose the younger employee because he was the “best qualified” for the job of the 20 candidates on the BQ list. The SO outlined how he had talked to several managers about the BQ candidates, but provided no notes or details from those conversations to back up his conclusion. Here is how the case went to a very quick victory, retroactive promotion and back pay for the employee. Continue reading

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REASONABLE WORK SCHEDULE ACCOMMODATIONS FOR THE MUSLIM SABBATH

A Muslim DHS Supervisory Immigration Services Officer wanted to take every Friday off so he could fully observe his Sabbath. He was initially allowed to do this with the following schedule: working 6:00 a.m. to 3:30 p.m. Monday through Thursday; and 6:00 a.m. to 2:30 p.m. on the first Friday, with the second Friday off each pay period, plus working 45 minutes of credit time before 6 a.m. He used the credit hours to take Friday off.  This went on with the first-line supervisor’s approval for two months before the second line supervisor ordered it stopped. The employee offered to work Saturdays and holidays, but when that option was also rejected without an explanation, he filed an EEO complaint. Continue reading

Posted in Religion | Tagged | 3 Comments