Posted on February 8, 2018 by AdminUN

EEOC REAFFIRMS RIGHT TO ACCOMMODATION REASSIGNMENTS

It seems like every day we check this Administration has taken away one employee right after another.  So it was comforting to see the new EEOC decision reconfirming a disabled employee’s reasonable accommodation right to a reassignment if s/he can no longer perform the duties of his permanent position. The Commission outright stated, “As Complainant could not be accommodated in his current position, we find that the Agency, absent undue hardship, was obligated to consider reassigning him to a different position, consistent with the Commission’s regulations noted above.” When the agency did not so in this case,… Continue reading →

Posted in Disability, Reassignments | Tagged | 1 Comment

Posted on February 3, 2018 by AdminUN

DOES FSIP’S OFFICIAL TIME ORDER VIOLATE THE LAW?

FLRA has ruled a number of FSIP decisions illegal and unenforceable. Usually, it is because the Panel-imposed language violates management 7106(a) rights. (See Note 1 below). But that is not the only example of how the Panel can act illegally, and it appears we just saw another with the issuance of U.S. Dept. of Agriculture, Rural Development, and AFSCME, Local 3870, 2017 FSIP 06 (2018). The impasse issue the parties brought to the Panel was how much official time the union rep should receive each week. The union wanted three days a week while the agency was only offering two, which was what the last contract provided. Consistent with the Panel appointees’ lack of any qualifications as neutrals, the Panel decided to give the union rep only one day a week. But is that legal? It seems to us that it is not for a few reasons. Continue reading →

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Posted on February 3, 2018 by AdminUN

LABOR RELATIONS AND GUN CONTROL

Does an agency have the right to decide when its law enforcement personnel can carry their weapons while off duty?  For example, can the Dept. of Army deny its law enforcement personnel who are armed while on the job, the right to carry off the job until they have been in the job for five years? Nope, or at least that is what the Office of the Special Counsel got DOD to accept. Continue reading →

Posted in Law Enforcement | Tagged | 1 Comment

Posted on January 22, 2018 by AdminUN

PRESIDENT PUNISHES NONUNION EMPLOYEES

One of the great benefits that unionized federal employees have is that they can appeal any disciplinary action to a neutral arbitrator–from a written reprimand to a removal. In addition, unionized employees can get a decision as fast as the parties want their arbitration process to move, usually between 6 and 12 months beginning to end. The law gives unionized employees the arbitration option on top of the right to appeal the more serious disciplinary actions, such as suspensions of more than 14 days, demotions, involuntary reassignments, coerced retirements and removals, to the Merit System Protection Board (MSPB). Almost all federal employees can appeal to MSPB. For decades federal employees relied on their access to MSPB when deciding whether they needed to unionize and undoubtedly some voted against unionizing because they had that protection.  Well, the President just rewarded those feds who have not unionized by essentially voiding their right to appeal any adverse action. Here is how he did it. Continue reading →

Posted in MSPB | 2 Comments

Posted on January 22, 2018 by AdminUN

WHEN IS UNILATERAL IMPLEMENTATION LEGAL?

If you are a union rep and think the only time an agency can unilaterally implement a mid-term change is when there is an emergency, you are woefully unprepared to lead a bargaining team and your members are in great jeopardy.  If you are an LR Specialist and think the same thing, you are missing many, many opportunities to legally unilaterally implement a change and very poorly serving your agency. We recently saw all 15 situations in which an agency can unilaterally implement a midterm change explained in one training class by LearningEverywhere. Like all their collective bargaining training, it was a class designed for practicing bargainers.  It pulled together the many unrelated legal decisions of the courts and FLRA into an easy to use list identifying each situation and providing the legal criteria necessary to invoke each.  It also addressed what unions can and are likely to do to respond.   Continue reading →

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Posted on January 22, 2018 by AdminUN

OMG! WHAT IS THE FLRA GC DOING?

Suppose that just as the FLRA is turned over to the control of two Presidential appointees with long records of anti-employee decisions and the FSIP populated with notorious anti-union (and apparently anti-government, too) decision-makers, agencies were given the right to demand in bargaining that employees and unions be obligated to repay benefits they got through existing agreements. For example, imagine a union negotiated a $200.00 a month public transit subsidy as part of a term agreement signed in 2012. In fact, let’s assume that the FSIP imposed the contract clause as part of a final and binding order. Agencies today have the right to propose that they can stop paying the benefit in the future, but soon they might be able to also demand that employees repay all the transit money they got in the 2102 agreement. Or they could demand that union reps repay the agency for some of the official time hours the current contract gave them the last few years. Or they could demand that prior arbitration victories be undone and employees repay the money they were awarded. Continue reading →

Posted in FSIP | Tagged | 2 Comments

Posted on January 18, 2018 by AdminUN

SICK LEAVE ABUSE DURING THE PROBATIONARY PERIOD

What can an employee do who is fired for alleged sick leave abuse during her probationary period? One employee recently showed that she can get reinstated with full back pay, compensatory damages, and an order that the agency consider disciplining the manager who fired her. Here is a quick review of her alleged abusive sick leave usage and the arguments she used to win. Continue reading →

Posted in Leave | Tagged | 1 Comment

Posted on December 16, 2017 by AdminUN

RELIGIOUS ACCOMMODATION, OVERTIME, AND SATURDAYS OFF FOR PROBATIONER

EEOC just decided a case in an employee’s favor because the agency made a technical mistake in how it considered overtime costs in deciding whether the employee’s request for Saturdays off would create an undue hardship. Practitioners on both sides of the table should remember that when overtime or similar costs of a requested accommodation are being considered there is a right way and a wrong way to do that. Technical errors lead to just as big a back pay check as substantive ones. Another interesting take away from this case is the fact that the employee waited a while after he was hired to declare he felt compelled by religious beliefs to take every Saturday off.  EEOC does not require the employee to have always held the same religious commitment. (The remainder of this post is taken almost verbatim from the very well-written EEOC decision.) Continue reading →

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Posted on December 16, 2017 by AdminUN

EEOC ORDERS DOJ TO GIVE EMPLOYEE MAXIFLEX SCHEDULE

All one need do to prove an illegal denial of a reasonable accommodation is show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. For example a DOJ employee had a sleeping disorder as a result of Major Depressive Disorder.  When the employee requested a reasonable accommodation, the Agency implemented a gliding schedule for Complainant. However, this was not an effective accommodation because Complainant still had to report to work between 8 am and 9:30 am. She could not do so 21 times in a 90 day period. So, the agency terminated her.  It did not want to allow her any flexibility after 9:30 am.  DOJ might have won this case because coming to work at a reasonably predictable time and during hours when co-workers are available is a pretty essential part of most jobs.  This employee was a Management & Program Analyst. But…, Continue reading →

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Posted on December 16, 2017 by AdminUN

FEMA EMPLOYEES MAY HAVE TO PAY BACK SOME OVERTIME PAY

Given our recent posting about federal employees having to repay compensation they received in violation of some statute or regulation—even if the error is only identified some six years later, we are passing along a story about a huge current liability some FEMA feds face through no fault of their own. While extra money is nice, it always pays to make sure it legal.

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