Often an employer must adjust an employee’s performance standards once it approves the employee’s FMLA leave request.  Not long ago a Federal Circuit Court spelled it out for LR practitioners on both sides of the table. 

An employee had been approved for FMLA leave, but was subsequently terminated for performance problems. (Pagel v. TIN, (7th Cir 2012))  When the employee’s challenge got to the appellate level, that court summarized the relationship between FMLA leave and performance standard adjustments as follows::

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave. In Lewis v. School District #70, 523 F.3d 730, 743 (7th Cir. 2008), for example, we reversed the district court’s grant of summary judgment for the employer on an FMLA claim. There, the employee offered evidence that her employer had expected her to complete all the duties of a full-time bookkeeper while she was taking intermittent FMLA leave, and then fired her for failing to meet that full-time standard. Id. at 736-37. We concluded that the performance problems that supposedly justified the termination were a direct result of her FMLA leave so that termination for those reasons would have made her FMLA leave “illusory.”

The Court went on to explain how it will look behind a simple management conclusion that the employee had failed to meet standards and actually examine the reasonableness of the standard under the employee’s FMLA circumstances. In this case, it wrote the following:

The record suggests that account managers need time to set up a sales call—perhaps as much as one week. Because Pagel was only given one day to set up sales calls in a city he did not previously intend to visit, it is no wonder that everyone agreed that he could have done a better job. Certainly, a reasonable jury could interpret this evidence as Kremer setting up Pagel for failure.

Consequently, when union members take leave the union might want to remind them that they should be on the lookout for performance issues arising and if so to come see the union rep for help.

(Originally posted December 2, 2012)

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AFGE seems to be the only federal sector union that values all its paid staff members (BU & NBU) enough to protect them from arbitrary and abusive treatment.  Consequently, union staffers themselves need to take action to install those protections over their ENTIRE careers, not just when in the bargaining unit, and a very effective way is through the staff’s union.  This post is about helping those unions-within-a-union do precisely that. It is time to restrain those union leaders who allegedly commit their lives proudly and bombastically to worker rights, but who hypocritically hoard the right to mistreat a handful of union employees just to flex their own ego, salve another bout of paranoia, advance some illegal or unethical activity, lash out when their delicate feelings are hurt, cover-up a serious mistake, etc. Continue reading

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None of us in the business of representing employees knows it all.  So, whenever we have an opportunity to learn something that got by us in the past (or maybe we have just forgotten about) we owe it to the members to seize that. has developed almost two dozen  quick quizzes you can give yourself to keep up with the big-and-not-so-big rights federal employees have.  More are in development. When you have the time, you might want to try one or a few. Or if you have regular steward meetings go through one at each meeting with the group.

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There are lots of good reasons to be a union rep, whether you get involved in grievances, negotiations, arbitrations, employee meetings, or information gathering & analysis.  Here are ten that we hope lead you to think about getting involved. Continue reading

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I was born into a family of union activists and devoted over 40 years of my own life to working for unions, but there are a few things about them that truly “get my goat”—to say it politely.  I have touched on them in some of the roughly 1,400 FEDSMILL posts I have issued since 2011, but thought it might remove any doubt about my biases if I put them together in one piece. Continue reading

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Why?  Because for years the agency discriminated against them when performance awards were handed out. If your union is not doing a simple statistical analysis of how awards are distributed among the various protected classes of employees each year, it is not doing its job. Why do we call it simple?  Because it is. All one need do is plug as few as four numbers into a free, on-line calculator and click “Calculate.” (Check out the Fedsmill post entitled, “How to Measure Management Unfairness” for a step-by-step guide.)  Seconds later the app will spit out a multi-page report.  If its conclusion is that there is evidence of discrimination, then the union should bring in some experts to help it move the case to the next stage.  They could be folks on the union staff or your union might have to contact a law firm like the one that handled this case for AFGE. Check out the FEDSMILL post entitled, “When Agency Awards Discriminate


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It is something the pro-employee White House is urging federal agencies to adopt—and that means your union should be pursuing implementation of the President’s order ASAP lest.  The best explanation of this concept was issued by FEDweek in a recent post entitled, “OPM Instructs Agencies on Granting ‘Safe Leave’ for Victims of Violence or Harassment.” Check out the link and get your union moving.

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When employees are the victim of discrimination, they often have some unusual rights that a union rep might not think of when working out a remedy for a grievant.  For example, EEOC issued a recent decision in which it found an agency at fault for reassigning an employee victim away from a discriminating manager and her normal work location as a way to remedy a violation of her rights.  The Commission wrote, “An employer does not act responsibly in response to a hostile work environment allegation when it reassigns the alleged victim. “ In another new decision EEOC actually ordered the agency to reassign the offending supervisor away from the employee—not the other way around. The decisions are cited below.   Continue reading

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In our experience, gag orders or anything like that used to stop someone from talking about “bad stuff” that may be happening at the job are terrible.  FEDSWEEK just wrote a short piece on how gag orders imposed on federal employees can violate the law.  If your co-workers are under a formal order—or even an unwritten practice/expectation in a single work unit—barring them from discussing problems with anyone other than their supervisor, then the union should think seriously about going after it by teaming up with the office of Special Counsel.  The FEDSWEK piece is entitled, “OSC Stresses Restrictions on ‘Gag Orders’ against Federal Employees.”

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One thing we try to do at Fedsmill is to make union reps aware of new issues developing in the employee and labor rights areas.  For now, we will just call your attention to this article from Forbes entitled, “What Employers Should Know About Menopause Discrimination.” While written for employers, it provides a good initial overview of what this issue involves. Think about bringing this to the attention of all your members because providing useful information to BU employees is one of the most valued services a union can perform. If your national union is not yet talking about the issue, ask why.

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