Posted on September 1, 2021 by AdminUN

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

Posted on September 1, 2021 by AdminUN

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 →

Posted in Age, Grievance/Arbitration, Promotion/Hiring | Tagged | Leave a comment

Posted on August 24, 2021 by AdminUN

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

Posted on August 24, 2021 by AdminUN

GRIEVANCE STRATEGY ISSUES – Part 4

Every contract we have ever seen requires the grievance to describe the alleged violation. Again, that sounds like an easy thing to do, but there are some traps to watch for.  Let’s go back to the example we used in Part 1, i.e., Imagine that a big promotion decision was announced yesterday and this morning one of the union’s members, Joe Hill, asked you to file a grievance on his behalf.  He points out that he knows he was on the seven-person Best Qualified list #21-09, but was never interviewed despite the contract provision (Article 13, Section 5 ‘Ranking and Selection Obligations’ Subsection (B)(3)(d)), requiring that all those on the BQ list be treated uniformly.” Here are some options for describing the grievance. Pick what you think is the best one. Continue reading →

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Posted on August 12, 2021 by AdminUN

LONG COVID PROBLEMS COVERED AS ADA DISABILITIES, NOT JUST FMLA

Members afflicted with long COVID problems are likely to run out of FMLA benefits as they struggle with the disease and need more leave or other accommodations. The Departments of Justice and HHS, ignoring continued claims that COVID is a fake disease or political plot, have just issued guidance certifying that those suffering from long COVID problems can be considered disabled and ask for reasonable accommodations.  Check out the guidance here.

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Posted on August 9, 2021 by AdminUN

GRIEVANCE STRATEGY ISSUES – Part 3

The third typical requirement of every grievance is that the union note the date of the alleged violation or the date it became aware of the violation. Not only can that be more complicated than it seems, but agencies insist on a date for a very important reason.  Forcing a union to file a grievance within 15 or 20 workdays of an objectionable incident creates the potential for the agency that the employee or union rep will dawdle to the point that they miss the deadline and relieve the agency of any liability. In most cases it also means that even where the agency has been violating a contract provision for months or years the union can only get back pay starting 15 or 20 days before the day it filed the grievance. There are ways around both of those obstacles and that is what this post is about.   Continue reading →

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Posted on August 9, 2021 by AdminUN

AFGE’S GUTSY MOVE PAYS OFF FOR EVERYONE

There are a few things that separate an average union representational effort from a super one, and one of them is whether its reps are creative, e.g., they do things, even risky things, the agency did not anticipate.  A new decision out of the Federal Circuit Court of Appeals highlights a very gutsy move AFGE’s Social Security Council took to defend a fired employee. Other unions can learn from it and ER/LR reps can see another reason not to jump to conclusions based on surface evidence. Continue reading →

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Posted on August 3, 2021 by AdminUN

REASONABLE ACCOMMODATION: HERE IS SOMETHING WE HAVE NOT SEEN BEFORE

EEOC just blessed the idea that while an employee who has requested a reasonable accommodation waits for that accommodation to be provided it is equally reasonable for the employee to request that his/her performance standards be suspended until the formal accommodation is in place.  In Kristopher v. Mnuchin, EEOC No. 2019001911 (2021) the employee and agency agreed to provide the employee additional software to accommodate and disability, but acquiring it would take a while. Consequently, EEO suggested the parties agree to suspend the employee’s performance standards in the meantime. Sounds like something union reps should keep in mind. In fact, we wonder why the employee would not request the standards have been suspended from the time the disability impacted his/her performance. The employee was awarded $75,000 in compensatory damages for the agency’s delay.

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Posted on August 3, 2021 by AdminUN

WHAT UNIONS ALMOST ALWAYS MISS TARGETING WITH FRIENDLY WHITE HOUSES

History has shown that when there is a union-friendly President in the White House federal sector unions usually want on three things, i.e., 1- new appointees to the FLRA, 2- new appointees to the FSIP, and 3- an order requiring agencies to bargain over 7106(b)(1) subjects.  The first two are inevitable, although they seem to take an unexplainably long period of time. The third one is almost never achieved with unions settling for some sort of vaporous, feel-good, we-will-do-better relationship pact. President Biden, to his credit, has finally ordered bargaining over those topics, although by delaying his appointments to FLRA and FSIP stunted any union permissive topic bargaining clout. But for some reason unions never seem to target a fourth area for change that has as much potential as all the others to improve things, i.e., government-wide regulations, particularly OPM’s. Below is comment on five such regs that union should be working overtime to get OPM to modify. Continue reading →

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Posted on July 27, 2021 by AdminUN

HERE IS HOW TOUGH EEOC (& UNIONS) CAN BE ON AGENCY PROMOTION RATING SYSTEMS

A State Department employee failed to achieve a passing score on the agency’s promotion rating system. In fact, he failed by a lot, getting only a 67 when 80 points were needed. But EEOC did such a through job of punching holes in the agency’s promotion rating systems that it ordered the employee retroactively promoted. The EEOC analysis is a model for what any union/employee can do to attack a nonsensical agency promotion decision where there are hints of possible discrimination. Continue reading →

Posted in Promotion/Hiring | Tagged | Leave a comment