Elaine Kaplan is a very well-known and respected person around the federal sector.  Aside from a long tenure as a lawyer for a major federal union, she was the U. S. Special Counsel and later the OPM General Counsel. These days she is a judge on the U.S. Court of Federal Claims and on a recent St. Patrick’s Day she issued a decision that could devastate union efforts to enforce a particular federal law.

The statute is 5 USC 6101(a)(3).  It provides that the agency head, with minor exception…

shall provide, with respect to each employee in his organization, that—

(A)  assignments to tours of duty are scheduled in advance over periods of not less than 1 week;

(B)  the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;

(C)  the working hours in each day in the basic workweek are the same;

(D)  the basic non-overtime workday may not exceed 8 hours;

(E)  the occurrence of holidays may not affect the designation of the basic workweek; and

(F)  breaks in working hours of more than 1 hour may not be scheduled in a basic workday.

Citing this law, unions have won back pay when managers have not given employees two consecutive days off a week or changed their starting time for one or two days a week from the normal time.

Judge Kaplan, however, has ruled that 5 USC 6101 is not a “money-mandating statute.”  In other words, it cannot “…fairly be interpreted as mandating compensation for damages sustained as a result of the breach of the duties [it] impose[s].”  She went on to quote the Federal Circuit court which held that money damages may not be awarded for a violation of section 6101(a)(3)(B) because “[n]either [5 U.S.C. § 6101] nor the regulations promulgated thereunder prescribes any penalty for failure by the government to comply with the scheduling requirements governing the number of consecutive days worked.

It will be interesting to see what happens at arbitration tables, inside FLRA, and elsewhere once this decision is put before them.  We cannot find any record of the FLRA addressing it in the more than 100 decisions it has issued dealing with this statutory provision.  Will the Authority reverse its decisions upholding the right to back pay when 6101 is violated? Will OPM/OMB bar the payment of 6101 back pay orders?  Will unions find a way around this huge hurdle from one of their own?  If this decision ends the right to enforce 6101 violations with back pay awards, lots of federal employees will see a sharp drop in the quality of their work and home lives.

You can read Kaplan’s decision at   Dewayne F. Adams v. U.S.,  USCFC No. 15-69C (March 17, 2016)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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