HOW AGENCY COUNSELS UNETHICALLY INFLUENCE EEO INVESTIGATIONS

Attorneys are supposed to aggressively represent their clients, but they are also required to avoid acting unethically.  The EEOC just issued a decision reminding agency attorneys of that.  It found that attorneys representing SSA management improperly interfered with the EEO investigation process by helping agency managers draft their affidavits, giving them “feedback” when they wrote things the agency attorney felt would hurt the agency. EEOC wrote that, “However, during the informal counseling stage and the investigation into the accepted issues of the complaint, the agency representative should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator.” That means agency attorneys may not review or assist agency witnesses in drafting testimony.  The Commission made clear that if the attorney’s interference impacts the ultimate decision it will impose sanctions, which could include sustaining the employee’s complaint for interference reasons alone. In fact, interference by anyone in management would be wrong.Seems like in every future case employee attorneys should be asking agency witnesses if the agency attorney played any role in preparing their affidavit, disclosing evidence, etc.  Check out Josefina L.  v. SSA EEOC No. 0120161760 (2018)

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TRUMP’S UNION-KILLING EXECUTIVE ORDERS OVERTURNED BY THE COURTS – REVISED

It is a 119-page decision, but here are the highlights in the Judge’s own words. “…the President’s policy choices as reflected in the challenged executive orders do not align with the policy preferences of Congress, and in this Court’s view, that contention is undoubtedly true as well. In short, there is no dispute that the principle mission of the FSLMRS is to protect the collective bargaining rights of federal workers, based on Congress’s clear and unequivocal finding that “labor organizations and collective bargaining in the civil service are in the public interest.” Continue reading

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EEOC RULES CUSTOMS & BORDER PROTECTION “UNWORTHY OF BELIEF” AGAIN

It is no secret that too many managers in CBP play it fast and loose with the merit selection rules. So, it warms our heart to see the EEOC confirming once again CBP managers are not to be believed even when testifying under oath.  As a law enforcement agency, you would think that CBP leaders would be intensely concerned about repeated government findings that its managers do not tell the truth, but there is little evidence of that so far. Continue reading

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AGENCY ATTORNEY FEE ASSAULT SHIFTS INTO OVERDRIVE

It is no secret that agencies are pushing harder than ever to reduce the costs of collective bargaining, and one of the most aggressive assaults is against a union rep’s right to get attorney fees when s/he wins a case yielding almost any kind of back pay. That effort has shifted into high gear with the circulation inside the management LR community of a 20-page PowerPoint outlining how to attack fees and a couple of cases now before the FLRA that will give it a chance to plunder precedent at the unions’ expense, which seems to be its current raison d’etre.  Among the management bargaining table likely demands are the following: Continue reading

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A PEEK AT TRUMP’S PERFORMANCE MANAGEMENT MESS

The President has issued Executive Orders that greatly discourage from treating similarly situated employees the same when taking action for poor performance. He wants the path clear for a manager to clobber one employee while coddling another even though they have the same performance deficiency.  That is his idea of fairness.  We will soon see whether the courts allow his Orders to take effect, but in the meantime let’s look ahead to what employees and their representatives will be able to do if they do become effective. Continue reading

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ON VACATION

We are taking a break until mid-August in order to drag the staff around the Mediterranean on the annual Fedsmill retreat to identify new ideas. See ya.

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NEW STUDY CONFIRMS AMERICAN WORKERS ARE GETTING RIPPED OFF

Here is a very interesting article from New York magazine that should prove interesting to anyone wondering about the actual facts about how employees are doing economically today.

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HOW AGENCIES BEAT THEMSELVES IN PROMOTION CASES

A GS-2210 IT employee (let’s call him William) got passed over for promotion in favor of a far younger employee even though William had  worked in a similar position for over 19 years, served in the Agency for over 25 years, and had veteran’s preference. So, he filed a complaint alleging the decision was based on sex and age discrimination. It was easy to show a prima facie case of sex and age discrimination. (1) He was over the age of 40 and the Selectee was not; (2) he was a different sex than the selectee; and (3) he was on the list of applicants deemed qualified that was forwarded to the Selecting Official.  But that is the easy part of winning  non-selection cases.  The real hard part for employees is proving that the agency’s legitimate, non-discriminatory explanation as to why he was not selected was not believable.  At least that is the hard part if the agency puts forth an explanation that meets the requirements of law. When it fails to, it loses– as EEOC just pointed out in a new case. Continue reading

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IS LYING THIS FLRA’S GREATEST POWER

A new decision from those twin Trumpian towers of truth-lite thinking  highlights the greatest power political appointees have to abuse electoral rivals.  Kiko and Abbott wrote in DoD, 70 FLRA 654 (2018) that, “…we find that, on May 3, 2010, the Agency expressly notified the Union that it could not, and would not, fully comply with the awards.  We also find that, on August 18, 2010, the Union expressly acknowledged that the Agency had not complied with the awards.” Consequently, when the union waited until October 6, 2015 to file a ULP it was too late. The case they described is unquestionably an open and shut case. The union loses. Continue reading

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SEXUAL HARASSMENT QUIZ: WHO STAYS AND WHO GOES?

If one employee alleges that another employee in the same office is sexually harassing him, does the Agency have to move one to another workplace while it investigates the matter?  If so, who gets moved? EEOC just answered both questions in a case out of the Federal Aviation Administration. Continue reading

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