Our blogging colleagues over at FMLA Insights just posted a wonderful story about an employer who refused to let an employee’s son call in for him or her to explain a sudden absence. When the employee did not call, it fired her. The story ends well with the employee getting reinstated with a lot of money, but is also useful because it (and the actual court decision it is based on) explain when an employer must accept someone calling in for an absent employee.
An employee filed an EEO charge in 1998 claiming she was being harassed because of her race, national origin, color, disability, age, and prior EEO activity. Just last month after years of deliberate efforts by the agency to drag the case out, EEOC threw up its hands and imposed a default judgment on the agency for failing to cooperate in the appeal. The employee also filed another complaint around the same time over a denied promotion from a GS-9 to GS-11. Four years later the agency removed the employee in 2002. EEOC ordered the agency to not only reinstate her with backpay beginning in 2002, but also to promote her retroactive to 1998. Toss in interest and the continuing investigation into paying her damage on top of the back pay and this agency is looking at a check for about $1 million. (EEOC left the agency a chance to prove that the 2002 removal was not for discriminatory reasons which would substantially reduce the money owed.) Nonetheless, this is yet another case demonstrating the power of the right of an employee to back pay going back decades if need be. Agencies need to keep that liability in mind when delaying resolution of a dispute. Employees and unions need to keep this and similar decisions imposing back pay long into the past when agencies try to bluff that decade-old violations cannot be legally remedied. Check out this brand new decision titled Amina W., V. Rick Perry, Secretary, Department of Energy, Appeal No. 0120113823.
We can’t say enough about employees (and unions) who stay in a fight with their agencies for years and years to force the agencies to pay every dime owed. No deals, no settlements, no compromises. The latest bundle of decisions out of the EEOC contains just such a case where the FBI forced a disabled employee to quit her Security Specialist job by denying a reasonable accommodation. The employee’s doggedness through the EEOC charge and complaint stages paid off big time with an EEOC order that she be paid $481,878 in back pay, another $53,000 in interest, and $30,000 on top of that for compensatory damages. While it is satisfying to win even a partial victory, it is an entirely higher level of joy to get everything you had coming to you. So, here is a very sincere, “Congrats” to Kesha who just took Attorney General Jeff Sessions to the cleaners in Kesha Y v. Jeff Sessions, Attorney General, DOJ (FBI) EEOC No. 0120121339 (2017)
On August 25, 2016 we posted a story about a D. C Circuit court decision holding that an employee may not file an EEO complaint over a lateral reassignment because the court did not consider that kind of personnel action to be an enough of an “adverse action.” The Civil Rights laws and regulations require employees suffer a certain level of harm before they can file a complaint in order to prevent cases over frivolous slights, personality conflicts, and ego eruptions. We expressed our disappointment at the time over the court’s narrow view of the law and insensitivity to how harmful a lateral reassignment can be. However, the court has come to its senses and reversed itself, which opens the door for federal employees to challenge lateral reassignments or the denial of them as violations of the civil rights laws. Here are the details on how to do it. Continue reading
More than a few federal employees have been in this situation. They got an increase in their pay check for what they thought was a long overdue raise, an award, a grievance settlement, or even a simple area pay adjustment. It felt good and they started thinking about how to spend the extra cash. When they told a co-worker about the additional income and s/he said it did not sound right, the employee even checked with HR who assured her the extra money was correctly calculated. So, she spent it on a vacation, new car, college tuition, or whatever–only to learn a year or more later that the federal government decided it made a mistake sending her the money it did and it wanted it back—with interest. When the employee went to see the same HR folks who assured her the payments were legitimate and correct, the HR staffer merely shrugged his shoulders and said, “Sorry, I guess I was wrong. The only opinion that matters on alleged overpayments to the employee is the federal government’s.” The employee appealed, but lost and when she asked the agency to waive her obligation to repay the money it refused. When the employee said she did not have the money to repay, the feds said “Not to worry” because it was going to take some money out of every pay check until the debt was repaid—including her annuity checks if she retired before repaying it. Continue reading
Biff said it best on behalf of all those whose words are too often ignored when he uttered this line in “Back to the Future.” It was only last April when we explained the need for unions to think more creatively about remedies for ULPs and grievances with the posting entitled, “Aggghhhhhh! This Mistake Hurts!” That was about the fifth time in the six years we have been posting. Yet, there is a decision coming out the full FLRA soon where once again the union (and FLRA’s General Counsel’s (GC) staff) failed to pursue all the remedies available to them. Continue reading
Even if you heavily favor unions over management you have to admit that “Congrats” are in order for the Federal Bureau of Prisons based on 64 FLRA 775. One of the most aggressive and talented unions in the country, AFGE’s Council of Prison Locals, filed a grievance against the Bureau claiming that overtime had been improperly assigned over the course of a year and asked for full back pay. An arbitrator found that the agency violated the contract, but could not determine the specific employees entitled to a piece of a very big back pay pot or how much each was owed. So, he told the agency to calculate the value of all the overtime improperly assigned and to divide that money equally among everyone who was even eligible for working the overtime. AND THAT IS WHERE THE BUREAU OF PRISONS KNEW THAT IT HAD CAUGHT THE ARBITRATOR, AND UNION THAT SUPPORTED THAT REMEDY, IN A VERY BIG BLUNDER. Continue reading
We love blog posts that briefly list and describe arguments we can make on behalf of employees in one situation or another. They are great tools for structuring employee grievance interviews about the facts or for building up the agency rep’s anxiety with an extensive list of legal hurdles s/he will have to clear if the agency does not settle the case. The Boston Employment Attorney Blog has a wonderful one listing a dozen ways to prove an agency’s explanation for why it made a personal decision is “pretext,” which is legalese for pure BS. It is entitled, “Inferring Pretext in Employment Discrimination Cases: A Baker’s Dozen.” It is something we recommend you bookmark or print and tuck in your EEO file for the next time a member walks in with a discrimination complaint. For those LR/ER/HR specialists looking to avoid problems and mistakes before they occur, this can be a powerful aid. For example, the next timea manager makes a personnel decision that just does not seem right, triggering your spidey sense, run the decision and any offered explanation for it through this list to identify the obvious weak spots or outright lies.