Posted on May 28, 2018 by AdminUN

AGENCY OBLIGATIONS AT THE END OF THE 12 WEEK FMLA PERIOD

The folks at JacksonLewis law firm have put out a series of posts to alert primarily managers to mistakes they can commit when administering FMLA.  Their 15th post highlights what the employer must do when the employee is approaching the end of his/her 12 week FMLA leave period. We recommend you check it out, especially if involved with an employee who took more than 12 weeks of leave. Union reps just might managers making technical blunders that they can turn to the employee’s advantage.

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Posted on May 15, 2018 by AdminUN

FINGERS, THUMBS, NEGOTIABILITY AND IMPASSE

Both labor-management parties are regularly guilty of missing the very significant distinction between a proposal being “non-negotiable” versus the agency having “no obligation to bargain” over it.  The pre-impasse bargaining process permits parties to use them interchangeably without any penalty. However, the union suffers the bargaining equivalent of capital punishment when it ignores the distinction once impasse is reached. In short, it forfeits the right to delay an agency-proposed change from being implemented even if it missed the distinction on one out of 20 of the disputed issues. Continue reading →

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Posted on May 15, 2018 by AdminUN

HOW EEOC PROTECTS FORMER EMPLOYEES

A former employee has 45 days after s/he leaves an agency to file a complaint over some discriminatory treatment.  That can be extended if the employee only learned of the discrimination after the 45th day.  But what about the employee who left six months or a year ago? Does the EEOC filing deadline rules bar them from filing?  The Commission issued a decision last December that spells out the circumstance under which a former fed can file an EEO complaint against a previous agency employer. Bryan v. Berryhill, SSA, EEOC No. 0120172731. In this case, the agency failed to comply with an EEO settlement requiring it to correct certain information in his personnel file.  Continue reading →

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Posted on May 15, 2018 by AdminUN

THE OPTION OF WORK WHILE ON FMLA LEAVE

We recommend that advocates on both sides of the table check out this post from the folks at JacksonLewis, who get paid to advise managers. It raises the idea that unions could demand that agencies provide employee on FMLA leave with work, including telework tasks, so that the employee can stay away from the agency worksite for a longer period of calendar time by stretching their 12 weeks.

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Posted on May 9, 2018 by AdminUN

YO-YO KA IS NO YO YO MA

While the world of music is blessed with the genius of Yo Yo Ma,  the Federal LMR community is stuck with the screeching of Yo-Yo KA.  Kiko and Abbott (aka The KA), our two little TRUMP-ettes, have decided once again to yank us LMR practitioners like a yo-yo from the stability and comfort of long-time legal precedent. They just announced that the bargaining obligation only covers changes in “conditions of employment,” not changes in “working conditions.”  As they see it, one of the canons of statutory construction, which they never specifically cite, requires that the two terms must mean something different since they are not identical. That is the equivalent of denying the existence of synonyms in the English language, such as a donkey and an ass.  Apparently, The KA believes management is suffering such a huge injustice now that an entirely new exception to the bargaining obligation is needed.  It matters little to them that this will lead to years of litigation, during which management reliance on the rule could cost the government millions in back pay and attorney fee damages. The current publicly known cost to an agency of a single blunder is $900 million, but nothing says it can’t go higher. Continue reading →

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Posted on May 8, 2018 by AdminUN

BORDER PATROL CAUGHT VIOLATING CIVIL RIGHTS OF ITS OWN

A Border Patrol supervisor initiated an investigation of a subordinate claiming that Complainant exhibited “lack of candor.” But EEOC found it was done solely because the employee had named the supervisor as a responsible management official in a pending EEO complaint. About the same time, the employee was denied a career-building reassignment.  EEOC found that decision also was done to retaliate against the employee. As relief, the Commission ordered the Agency to take the following remedial actions within 120 days: Continue reading →

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Posted on May 8, 2018 by AdminUN

WHEN AGENCY AWARDS DISCRIMINATE

Unless the union has negotiated a criteria for granting awards or other safeguards agencies are largely free to do what they want with awards—unless the employee can find that s/he was treated differently than someone in a different protected class, e.g., race, gender, national origin, age, disability status, etc.  EEOC drove that point home in a 2017 Agriculture Department decision and in the process provided a road map for others that want to get similar relief to that DOA employee.  She got a retroactive cash award, a right to be paid compensatory damages, and an order that the agency consider disciplining the responsible manager.  Here is how she did it. Continue reading →

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Posted on May 1, 2018 by AdminUN

EEOC PAYS LOSERS TOO

Suppose an employee files an EEO charge or grievance over a denied promotion and the judge finds that there was discrimination in how the employee and other candidates were treated. But also assume that the judge also concludes that the complaining employee would not have been the one selected even if there was no discrimination. The job would have gone to someone who did not even challenge his non-selection. The grieving employee will probably feel likes/he lost. S/he is not getting the promotion or any back pay.  But there is a substantial consolation prize. Continue reading →

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Posted on May 1, 2018 by AdminUN

NFFE, NON-DISCRIMINATION AND THE NLRB

Way back in 1986 NFFE demanded an agency give it data on employees so that it could pursue civil rights claims on their behalf, and FLRA upheld the union’s ground breaking logic then as well as two years later. See NFFE Local 29, 22 FLRA 667 (1986) and NFFE Local 589, 32 FLRA 133 (1988).  Not long after those precedent-setting cases, AFGE joined the struggle in 32 FLRA 133, 44 FLRA 1405, firmly establishing that unions are entitled to information about how various personnel actions such as awards, promotions, training, etc. are doled out among the various civil rights protected groups. Then, a week ago the NLRB issued a decision adding its weight to FLRA precedent on this issue.  That decision will likely play a role shortly in the federal sector because FLRA precedents cited above all pre-dated the imposition of the particularized need (PN) standard.  The PN standard now requires that any union requesting that kind of data  needs to make a more sophisticated argument, especially to President Trump’s appointees. So, we thought we would walk through what that would look like so that advocates on both sides of the table argue and/or administer this thoroughly. Continue reading →

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Posted on April 24, 2018 by AdminUN

ATTORNEY FEE TURMOIL AHEAD?

In NAGE and DOD, DLA, 69 FLRA 572 (2016) the Authority signaled that it is willing to reconsider the criteria for approving employee attorney fee petitions. Given the pre-disposition of the two Trump appointees, Kiko and Abbott, unions and the private bar would be wise to think, plan and coordinate ahead about the possible directions these two could go in adjusting how fees are set.  Nor should they ignore the fact that the current FSIP is likely to be very, very receptive to agency bargaining demands for language that limit attorney fee recoveries.  So, now is as good a time as any to speculate on how this might play out. Continue reading →

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