Posted on November 28, 2016 by AdminUN

IS A LESS STRESSFUL WORKING ENVIRONMENT A REASONABLE ACCOMMODATION?

It seems that one local court in Florida does not think so, but what would you expect from a bunch of judges who can’t be fired, have no production deadlines, and are never evaluated. This decision reminds us of the FLRA decisions which held that sudden severe increases in employee workloads do not amount to changes in working conditions. A Florida employee suffering from epilepsy asked that his manager adopt a less domineering, overbearing stress-inducing style of managing. His doctor certified that high tension and stress triggered his seizures. Too bad, pronounced the court. Asking someone to manage in a mature, enlightened manner is asking too much. Although what we would not be surprised to find is a well-tanned judge felt stress-induced seizures are not worthy of accommodations, we hope that no one will be intimidated by this decision. In fact, we are keeping our fingers crossed this decision not only gets overturned but is ignored across the land. Check out a post from the Jackson/Lewis law firm entitled, “Employee Seeking Less Stressful Work Environment Denied ADA Protections” if you want more details.

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Posted on November 28, 2016 by AdminUN

NFFE SIGNS JEFF FRIDAY AS GENERAL COUNSEL

There is a small group, in fact, let’s call it a tiny group, of attorneys in Washington who have experience in virtually every area in which a union would want its GC skilled. NFEE just snatched up one of them.  Sport fans might call it the free agent signing of the year.  Arbitrations hearings, ULP proceedings, appropriate unit disputes, FMCS/FSIP dispute proceedings, election challenges, internal union politics, managing union conventions, building membership, leading organizing drives, networking, union local training & development, EEOC & MSPB work, etc. are areas in which he has practiced and excelled elsewhere in the labor movement. Most importantly, he brings a 30-year, soul-deep commitment to union work that we are sure will benefit NFFE members. We could not be happier for NFFE and for Jeff.

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Posted on November 28, 2016 by AdminUN

LIMITS ON CASH AWARDS TO FEDERAL EMPLOYEES LOOSENED

Hope you did not miss Eric Yoder’s piece in a recent Washington Post about how the outgoing White House Administration just told agencies that they can and should increase the funding of their employee award programs.  This should fire up some bargaining table conversations as unions seek to find out what changes may result and LR Specialists move to fend off any bargaining demands. It will be interesting to watch how agencies distribute this extra cash, assuming their appropriations are not already so low that they are running bake sale to keep the lights on. Does this mean a bigger addition to the bonuses for managers than the unit employees who produce the work for them–or even to some segments of the bargaining unit and not others? Of course, it will be even more interesting to see whether this financial authority is canceled late in the day on January 20th, 2017 as part of making American Great Again. Imagine how “GREAT” that will be.  (That is a bit of sarcasm incase anyone is confused.  Given that feds are already paid about 34% less than their similarly situated private sector counter-parts, boosting performance awards money seems like a perfect way to close that gap given political realities.)

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Posted on November 28, 2016 by AdminUN

WHEN AGENCIES DRAG OUT DISCIPLINE INVESTIGATIONS

Throughout our career we benefitted from making a note of an excerpt, footnote or even snippet of a case, regulatory comment or policy transmittal. They proved invaluable at bargaining tables when the other side was blindly denying some fact, precedent or concept. We just ran across a good one in a new MSPB case where the Board had to deal with an agency that took discipline against an employee even though it let the investigation drag out for eons. That Board smacked the agency down and here is the critical passage that practitioner son either side of the table might find useful. Continue reading →

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Posted on November 21, 2016 by AdminUN

ISSA, CHAFFETZ TARGET VETS FOR TERMINATION

House leaders just announced that they are coming after veterans, including those with injuries, by making it easier to fire them and deny them other rights.  Yup! God’s honest truth.  Today’s e-media carried a story about how eager House leaders like Chaffetz of Utah are to make it easier to fire federal employees.  Chaffetz, apparently ignorant of the MSPB statistics showing that more than 70% of the time a federal agency fires an employee the firing is upheld even upon an appeal and the fact that employees terminated in their probationary period are almost never reinstated—a 100% success termination rate for agencies, told the media, “It is almost impossible to fire somebody,” in the federal government. Continue reading →

Posted in Discipline/Adverse Action | Tagged | 6 Comments

Posted on November 21, 2016 by AdminUN

AN MSPB HOLIDAY SURPRISE

Would you have predicted this?  An employee was fired. When she filed an appeal with MSPB she not only denied the agency’s charges, but also claimed discrimination based on sex and disability.  Not long after, the agency rescinded the action, purged her record of any reference to the action, and retroactively reinstated her to the non-pay status position she was in when she was terminated.  When the MSPB judge heard about the reinstatement, she closed the employee’s appeal as moot.  But, Continue reading →

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Posted on November 20, 2016 by AdminUN

EEOC REJECTS “LIP SERVICE” FOR THE DEAF/HOH

There is not any breaking news here or newly-established legal precedent—and that is sad. This post is about yet another fed who requested a sign language interpreter for a last minute meeting a manager called with employees. Rather than postpone the meeting to get an interpreter, management decided it was important to have it immediately. It told the employee it would hold the same meeting the next day when it could get an interpreter. But, it never did, and the employee filed charges. Shocked? We kind of are because too many employees seem to think there must be a long-running pattern of discrimination before they have a legitimate complaint. This employee proved once again that is not the case. A single incident can result in a discrimination judgment and money for the employee. Here is how EEOC held the law applied. Continue reading →

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Posted on November 14, 2016 by AdminUN

BARGAINING WITH AN ANTI-UNION GOVERNMENT

Since the Trump empire of hotels, resorts, golf courses and other developments will remain heavily dependent on good service from its employees and relationships with their unions, for this posting we are going to assume that the Breitbart folks in the new Administration do not succeed in making federal employee unions illegal or even totally powerless. This post assumes that labor gets the same treatment from the Trump White house that the self-proclaimed “compassionate conservative” George W. gave it, namely, that it turns the federal agencies in charge of labor relations over to the Heritage Foundation to play with. If that is the way things go, then federal unions will need to tap some very sophisticated bargaining strategies developed during the Reagan and W reigns of terror. We are not going to share them here or anywhere else in writing, but over the next few weeks we are going to point the interested readers in a few directions that might prove enlightening to learning all the tricks that those who endured Reagan and W. had to create on the run. Continue reading →

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Posted on November 9, 2016 by AdminUN

WHAT HAPPENS NOW?

Having lived through a few White House changes, we thought we would share what we know about what will happen next in the federal sector labor relations arena. In the next week or so the President-elect’s team will designate someone to take charge of all the labor relations-related appointments. While DOL and NLRB slots will garner more attention than the fed sector ones, expect that the entire FSIP will be asked to resign—or fired. George W’s folks handed it over to the Heritage Foundation to run during his tenure and there is no reason to expect anything different now, especially since Trump has already committed to letting those folks pick the next Supreme Court nominee. Unions lost about 90% of the times a bargaining dispute went before that FSIP. Continue reading →

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Posted on November 2, 2016 by AdminUN

HR SPECIALISTS ALERT: DISABILITY LAW IS EVOLVING FOR YOU

Suppose a manager calls HR one morning to report that one of her probationary employees has refused to perform a certain function of the job by the established due date and the manager wants to fire the guy. When you ask why the employee refused to do it, the manager claims the employee’s doctor has ordered her not to do the kind of work required to complete the task while he recovers from surgery. She also made it very clear that the employee has not asked for a reasonable accommodation. What is your next move? If it is to start drafting the termination letter, you have not been following developments in the ADAAA disability law. There is at least one federal circuit court of appeals opinion that suggests employees do not have to specifically ask for an accommodation if the employer knows enough about a situation to see that a performance problem is likely related to a disability. One decision does not make it the law of the land, but it does substantially increase the risk that you might be making a big mistake. We will hear more about this evolving HR obligation, but for now check out a new blog posting from OgletreeDeakins law firm entitled, “The Eighth Circuit & the ADA, Part II: Must a Request for Accommodation be Explicit?” and its predecessor. As for those folks on the union side of the table this case might mean that if a member has been disciplined or adversely impacted by an inability to do something and that inability was based even in part on a disability management knew about you might have a decent ADA claim to file.

Posted in Disability, Reasonable Accommodations | Tagged | 2 Comments