Posted on July 31, 2017 by AdminUN

HOW TREASURY SUBVERTS MERIT

The Office of Special Counsel (OSC) recently smacked down the Dept. of Treasury FinCEN operations for screwing around with the merit system. The agency wanted to hire an attorney into a supervisory spot, but Treasury would not let them classify it as an attorney job. As a result, it was decided to advertise it at the GS-1801 job it always was, but to do things behind the scenes so that only an attorney with federal sector experience could get the job. Here’s how they did it and how we suspect a few other appointing officers manipulate the merit system. Continue reading →

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Posted on July 31, 2017 by AdminUN

PROVING FMLA RETALIATION

Imagine that an employee asks for a week of annual leave in late August after using 3 weeks of FMLA in February to care for an ailing parent and the supervisor denies the leave.  The supervisor told her that she has already been gone far too long this year given her workload.  Has the supervisor retaliated against the employee for using FMLA? One of the issues a union or ER/LR rep must consider in answering that question is what the legal standard of proof is for retaliation cases.  Does the employee have to show that “but for” her use of FMLA the leave would have been approved or need she only show that her use of FMLA was viewed as a negative factor by the supervisor when s/he made the leave denial decision.  The good folks at OgletreeDeakins just posted an article providing an update on which of those two legal standards applies.  It is entitled, “Second Circuit Lowers Bar for Causation in FMLA Retaliation Claims.” While the courts are not unanimous on the answer to that question, their arguments are well-made and should consider when arguing for one or the other of these standards.

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Posted on July 26, 2017 by AdminUN

HOMELAND SECURITY PAYS MILLIONS FOR DECADES OLD EMPLOYEE COMPLAINT

 If the Washington Post story is accurate, and we highly suspect it is, the Dept. Of Homeland Security just agreed to pay about 100 employees an average of $240,000.00 each in back pay to make up for promotions unjustly denied them as long ago as 1990.   Our compliments to these employees for hanging in there so long and to the law firm that made it all happen.  [Reposted from January 2017]

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Posted on July 26, 2017 by AdminUN

“LEARNING EVERYWHERE” OFFERS GREAT  COLLECTIVE BARGAINING TRAINING PROGRAM

The one thing we look for from any consulting firm offering to train negotiators on either side of the labor management table is whether the instructors actually were chief negotiators.  While we think the world of career neutrals who never worked for labor or management, they rarely can offer the insights and tips a seasoned negotiator can after decades of actually being the chief bargaining advocate. That is why we are excited to see the “Learning Everywhere” collective bargaining program.  It is delivered by folks who sat in the chief’s chair on the union as well as the agency side of the table for decades. We do not know any other firm offering that. Continue reading →

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Posted on July 26, 2017 by AdminUN

FMLA FAQ: Can a Chiropractor Certify FMLA Leave for the Chronic Bad Back?

This is another one of those short articles to read over and log into your long-term memory.  As our population ages, it is going to experience more bad back problems.  This post from a fellow blogger just might help you avoid a quick, but wrong answer to a question down the road. Union reps might want to send a link to it to members who might be dealing with the issue right now.

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Posted on June 27, 2017 by AdminUN

A FEDS’ RIGHT TO BE REASSIGNED

Federal employees do not have many rights in law or regulation to demand a reassignment, which means that unions can do a lot of good at the bargaining table boosting those rights through collective bargaining.  While they do that, we thought we would share a recent EEOC comment on the right to be reassigned when needed to accommodate a disability.  In this case, the employee’s workplace produced an allergic reaction known as contact dermatitis. Here are a couple of key passages from the decision in which it found the agency violated the law by not even looking for a reassignment opportunity.  We have underlined some of the more significant portions and put in bold print those passages we think might surprise most readers. Continue reading →

Posted in EEO/Disabilities, Reasonable Accommodations | Tagged | 1 Comment

Posted on June 27, 2017 by AdminUN

CAN YOU RECORD MANAGEMENT MEETINGS WITH AUDIO AND/OR VIDEO?

FLRA sure has not decided whether feds can do this, but at least one federal circuit court has just decided that private sector employees can pursuant to their labor law rights as bargaining unit employees.  We are passing this news along not with any advice that federal employees of union leaders try it, but to just plant the idea that it might be possible.  Of course, feds operate in a different world than private sector employees thanks to privacy laws and classified material in a workplace, but it just might be possible to get by all that. One place to start would be to read about the new court decision in the FranczekRadelet blog posting entitled, “Second Circuit Upholds NLRB Whole Foods Decision Allowing Employee Recording in the Workplace.”

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Posted on June 27, 2017 by AdminUN

AFGE PULVERIZES PERFORMANCE STANDARDS

No one on the union side of the table should ever argue that it is easy to evaluate employee performance.  It is not.  But at the same time, AFGE just showed that OPM, a wholly-owned subsidiary of OMB, makes it far harder than it need be. (This post first appeared in December 2012 and is reproduced with minor edits here. It also happens to be our 800th posting over almost six years.  Enjoy the 4th if we do not blog before then.) Continue reading →

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Posted on June 20, 2017 by AdminUN

FLRA BOOSTS TELEWORK REMEDIES 

Few things are as frustrating as winning a grievance, arbitration or ULP only to find that the sole remedy imposed is an order that management not violate the law or contract again.  FLRA claims that remedies should “restore, so far as possible, the status quo that would have obtained but for the wrongful act,” and that they should be chosen in part as a “deterrence of future violative conduct.”  Even the courts have talked tough about remedies, “An approach to remedies that systematically fails to deter non-compliance, or dilatory compliance, with the Statute’s directives is fundamentally at odds with the Authority’s responsibilities. . .”  Continue reading →

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Posted on June 20, 2017 by AdminUN

CHALLENGING PROMOTION NONSELECTION DECISIONS

If you have followed us over the years you know that we believe that one of the most effective ways to challenge a promotion decision is through the EEO charge process. If the selectee is in a different protected class than you, e.g., gender, race, age, national origin, disability status, etc. and you think you were better qualified for the job, FILE, FILE, FILE.  At worst, you still won’t get the job. At best, you will get it with some retroactive pay and a few thousand dollars of compensable damages.  Even if you wind up somewhere in between those two results there are a lot of very good options there too.  A very recent EEOC decision out of Homeland Security highlights one way to win these cases. Continue reading →

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