LABOR AGREEMENTS VERSUS EEO RIGHTS

Because of her physical limitations, the employee was no longer qualified to perform her duties. According to EEOC, that obligates the agency to consider reassigning her to a position she can perform.  The agency refused to consider her for a vacant position she could perform because the job was in another bargaining unit.  It claimed there was no contractual method for moving her from one unit to another.  But EEOC corrected the agency when the employee filed a complaint alleging denial of a reasonable accommodation. It wrote that the employee was, “entitled to reassignment to a vacant funded position outside of her craft, regardless of the dictates of the Collective Bargaining Agreement (CBA) if she was a qualified individual with a disability. Anibal L. v. USPS, EEOC Appeal No. 0120151142 (December 15, 2016).” The commission awarded her the job and back pay for any leave she had taken.  For more details, check out Lisa C., v. Louis DeJoy, USPS, EEOC No. 2019005689 (2020)

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CAN AGENCIES REQUIRE EMPLOYEES TO VACCINATE?

This is going to be a hotly contested issue.  While we at Fedsmill do not have anything to say about it right now, we thought you might like to see what the folks at FMLA Insights  are passing on.  Check out their advice here.

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OH HOW LITTLE FSIP MEMBER CARTER KNOWS

One of the predictable things about anti-union zealots, like the current membership of the FSIP, is that they almost never consider the second and third level consequences of their wildly biased decisions.  This is usually because they do not know enough about the inner working of a collective bargaining relationship, fed sector labor law, or government personnel policies. Member Carter could be the poster boy for these unthinking zealots as evidenced by his recent decision that an agency will be allowed to change the evaluation plan and procedures each time it fills a vacancy.  The union wanted the agency to continue to use a single, standard evaluation plan no matter what the job. Carter probably swelled with pride at yet again ignoring the union’s time-tested view, but what a mess he created. (See Dep’t. of the Army and AFGE Local 15, 20 FSIP 047 (2020).          Continue reading

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HOW TO MEASURE MANAGEMENT UNFAIRNESS

Wouldn’t it be wonderful if there was a way to measure how unfair agency policies or practices are, especially if the measure was widely recognized as having evidentiary value? Of course, it would because union leaders would be able to go to the bargaining table to argue with authority for changes to unfair HR systems such as those involving performance awards, promotions, appraisals, training and sick leave restrictions. Well, there is such a measurement and FEDSMILL describes how to use it below. Continue reading

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ABOUT “SAME RACE” DISCRIMINATION

Although it rarely comes up in the media, we thought you might like to read a short piece from the law firm of Fox Rothschild.  It is about what happens when a supervisor uses racial slurs when addressing an employee and they are both members of the same racial minority. Check it out here and remember that the same legal reasoning would apply if a female supervisor uses gender slurs when addressing women she supervises.

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ARE UNION REPS JUST TOO THOUGHTLESS TO DO THIS?

For the umpteenth time we have yet another case where the union’s own incompetence destroyed their ability to win a grievance.  In this case, the agency changed some employees’ working conditions by contracting out their work without notifying the union in advance.  The union responded by filing a grievance alleging a violation of the contract’s Articles 33 and 36 obligations to notify the union before doing so.  When the grievance went before an arbitrator, the union won.  And there you have it, i.e., total unquestionable incompetence by yet another union.  If you do not see the blunder you could turn to this, or this, or this  where we reported similar screw-ups. But if you want a faster answer read on. Continue reading

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SHORT, SWEET, AND UNQUESTIONABLY ILLEGAL

When an VA employee asked for a reasonable accommodation, VA management moved the request very efficiently by providing a prompt denial and ending the discussion of the request. Short and sweet, but according to EEOC that was unquestionably illegal.  Law requires that if agency rejects a disabled employee’s initial request for a specific reasonable accommodation, it must interact with the employee to explore alternative accommodations.  As a result, EEOC ordered the agency to pay the employee nearly $37,000 in damages and gave her another $30,000. in attorney fees. If you are involved with a reasonable accommodation request and the agency merely dismisses the request without jointly exploring alternatives with the employee this is a good case to model your appeal upon.  See Diedre A., v. Robert Wilkie, Secretary, Dep’t of Veterans Affairs, EEOC No. 2019001567 (2020). Check out our post entitled, “What is the ‘Interactive Process’” for more details on  the elements of a legally sufficient process.

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WHAT IS A GRIEVANCE RECOVERY PERIOD?

The FLRA has said that it “specifically distinguished between contractual back pay recovery periods and contractual time periods for filing grievances.” Consequently, we practitioners had better know the difference, particularly negotiators when we sit down to write a labor agreement.  Here are a few comments that we think will help them the most. Continue reading

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CHIEF ALJ LIES AND EMPLOYEE DIES 

We will never know if the Chief ALJ’s actions hastened this employee’s death, but they sure did not help. A judge in SSA’s Office of Hearing Operations (OHO) in North Charleston, South Carolina had cancer and asked that he be allowed to work at homes on days he did not have hearings scheduled to facilitate his chemo treatment. When the agency denied his request despite a bundle of documentation from the employee’s physician that EEOC ultimately said was adequate, he filed an EEO complaint.  The charge was an improper denial of an ADA reasonable accommodation. 

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Posted in EEO/Discrimination, Reasonable Accommodations | Tagged | 1 Comment

EMPLOYEE FORCES AGENCY TO SEND HER TO TRAINING 

You read a lot about employees grieving or challenging removals and suspensions as well as leave and promotion denials.  But it is rare to see a case where the employee knew enough to file charges against an agency for its refusal to send her to training. So, we thought we would let you know about the NRC employee, who was the only woman in her work group, and who challenged the denial of her training requests quite successfully by proving disparate treatment.  Aside from EEOC ordering the agency to pay for her training it must also pay her compensatory damages. If you know of a similar situation where an employee is being denied training that others are getting, check out this case: Lashawna L., v. Kristine L. Svinicki, NRC, EEOC No. 2019002093 (2020). 

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