President Trump has installed his two operatives on the FLRA and they have set about deciding what they consider to be “fake law.” Among their first moves was to make it easier to overturn arbitration awards—unless arbitrators write them a certain way. Here are the legal background, the simplified facts of the case (70 FLRA 398), the new FLRA rules, and the workaround. Continue reading
Back on January 2014 we wrote about an employee’s potential right to work at home if s/he otherwise qualifies for a reasonable accommodation. The post was entitled, “Want to Telework as a Reasonable Accommodation?” and provided a guide for union reps to make solid arguments in support of an employee’s request and for ER/LR specialists who have to make decisions on such requests. But there is a brand new decision out of the Sixth Circuit U.S. Court of Appeals that adds even more clarity to how one determines whether to grant the accommodation or not. Continue reading
The federal election season is already underway and that means it is time to brush up on what the Hatch Act allows feds to do and prohibits them from doing. The Office of Special Counsel has just put out a helpful guide to what is OK and not OK on social media. It might be helpful to share it among the union members. Given that the OSC just notified President Trump that Kellyanne Conway has violated the Act twice and that he needs to consider disciplining her, that should be taken as a sign that all feds need to know what they can and can’t do.
Processing FMLA claims is an important part of the services provided by unions as well as agency ER shops. While the basics of the law are well-known, the odd situations and exceptions of the core rules are not. You can ignore them until they fall into your lap and hope that you then recognize that something is out of the ordinary here and that you need help from an expert. Or you can page through a summary of what the American Bar Association considers to be the latest unusual court cases and do that long before a need for your help pops up. We prefer the second approach and if you do as well we recommend you soon page through the ABA’s Summary of 2017 FMLA Court Decisions provided by our fellow bloggers at FMLAInsights.com. Here is a list of the most interesting chapters in the report. Continue reading
As expected, our management guys on the FLRA (Kiko and Abbott) have started to come through for us managers. For years the Authority has insisted that once an agency enters into and approves a labor agreement it must live up to the promises it made therein unless the contract clause all but shuts down the agency’s ability to exercise a management right. It was terrible having to abide by promises we made employees—and maybe even a little insulting. But that all changed this week with the issuance of United States Department of Justice, Federal Bureau of Prisons (Agency) and American Federation of Government Employees, Local 817, Council of Prison Locals #33 (Union) 70 FLRA 398 (2018). Now we can sign contracts and ignore them with almost total immunity. Continue reading
For over two decades FLRA has been issuing decisions outlining how an agency wishing to raise a “covered-by” defense to a union’s demand to bargain must meet the following test: ”If the agreement does not expressly contain the matter, then, under the doctrine’s second prong, the Authority will determine whether the subject is inseparably bound up with, and thus plainly an aspect of, a subject covered by the agreement.” DHS, CBP and AFGE, 69 FLRA 261 (2016). A quick computer search turned up over 100 decisions where FLRA has reaffirmed the “expressly contained in” and “inseparably bound up with” criteria. However, a federal judge looking to leave a personal legacy behind in precedent has refused to accept those criteria. He suggests, against FLRA’s advice, that a matter is “covered by” if it is within the “scope” or “compass” of an existing agreement—two hugely vague words that will generate generations of litigation. We expect that FLRA will continue to stay with the two-part criteria it has established enabling practitioners to benchmark off the facts of its dozens and dozens of covered by decision. But the FSIP just tastelessly stated that it would rather follow the judge’s advice than its parent agency’s precedent. Continue reading
One of our continuing beefs with the Panel is that it regularly fails to consider the long-term fallout of its decisions. For example, it recently rejected a union proposal that assignments to long-term travel TDY be given to the least senior employee when ”… there are two or more employees equally qualified for the assignment and there are no volunteers.” The Panel employee chose instead this agency proposal, “the decision to assign an employee to long-term TDY will not be based on criteria unrelated to mission.” The Panel chose the agency’s offer because the union failed to demonstrate a need for its rule and because it thought that management should have the discretion to select an employee with specialized skills and experience. Let’s put aside the fact that the union’s proposal allowed management to consider specialized skills and experience when determining qualifications, and focus on what can happen next when management tries to implement this clause. Continue reading