Posted on May 15, 2016 by AdminUN

ABA LABOR LAW UPDATE & THE CBP MUSHROOM CLOUD

For those of you out in our blogosphere who like to stay up with the latest twists and turns in federal sector labor law we recommend reading through the American Bar Association’s, “Update on Significant FLRA and Labor and Employment Decisions, 2015-16.” One of the more interesting cases it is following is NTEU’S fight with CBP. Several arbitrators have already ruled the agency owes employees tens, if not hundreds, of millions in back pay for overtime hours they never worked but should have been allowed to work, even though often no one was assigned to work for the times the union claims back pay. The agency appealed to FLRA but lost. Then it took most of those decisions to the U. S. Court of Appeals, only to be turned away. Most recently, NTEU has asked the arbitrators who issued the original decisions to rule on whether the agency is in compliance with their decisions, which brings all of us fed sector practitioners to the brink of some interesting potential case law developments. For example, Continue reading →

Posted in Arbitration, ULPs | Tagged | 1 Comment

Posted on May 14, 2016 by AdminUN

NTEU TRIPS ITSELF UP ON CBP DISPUTE

When Customs and Border Protection management decided to install new work stations for officers inspecting travelers, NTEU asked to bargain, and one of its demands was that officers be allowed to sit while reviewing travelers’ documents. The agency declared that non-negotiable on the grounds that it excessively interfered with its management rights to determine internal security. NTEU filed a negotiability petition. At about the same time the agency decided to remove any doubt about officer’s rights to sit or suggestion there might be a past practice of allowing that.  So, it issued a memo announcing that effective immediately officers were to stand while inspecting folks. NTEU filed a ULP with FLRA over that. Once FLRA heard about the ULP, it dismissed the union’s negotiability petition on the issue. Any idea why? Continue reading →

Posted in Attorney Fees, ULPs | Tagged | 2 Comments

Posted on May 14, 2016 by AdminUN

WHO REALLY DESERVES THE BLAME? AFGE KNOWS

It looks like the media is going to spend more than a little time this summer on the story about the horribly long security lines in airports. Congress, as it always does, has moved quickly to cast the blame on the agency for the delays by calling hearings where it gets to stage the process to look as if our elected representatives are fighting for us. But don’t be fooled by the stagecraft because the ONLY people to blame are those in Congress. AFGE highlighted some facts about the TSA delays recently that make it crystal clear who is to blame, “The Transportation Security Administration currently has about 42,000 officers on the job, down from 47,000 in 2013. At the same time, the volume of passengers has risen 15 percent, from 643 million to 740 million.” That, folks, is due to the failure of Congress to fund government. Don’t let neighbors complain about TSA. It is not the “TSA Problem.” It is the “Congressional Problem.” It strikes us that Congress is like an abusive husband who refuses to give his partner (aka wife) enough money to buy food, but then berates her (or worse) for not feeding the family well. Congress has done it to IRS, the VA, TSA and others as part of a PR campaign to hide its long- string of cowardly judgments.

Posted in Lobbying, Whistleblowing | Tagged | 1 Comment

Posted on May 12, 2016 by AdminUN

FSIP CHOOSES EMPLOYEES’ OPINIONS OVER NTEU’S

NTEU took a bargaining dispute over salaries to the Panel recently arguing that the performance appraisal system driving pay decisions “… is broken beyond repair in its current form which, in turn, leads to employee dissatisfaction over pay.” However, the agency put some hard evidence on the table arguing that employees disagreed with the union. It pointed to the annual employee survey (FEVS) showing that “nearly 72% of the surveyed employees believe that ‘considering everything,’ they are satisfied with their pay,” and that 73% of them agreed that their performance appraisal accurately reflected their performance.” Faced with the union employees saying one thing and their negotiators another the Panel decided to go with the statistical evidence. This case is yet another in a growing line where … Continue reading →

Posted in EEO/Discrimination | Tagged | Leave a comment

Posted on May 12, 2016 by AdminUN

WHEN YOUR RELIGIOUS EXPRESSIONS OFFEND CO-WORKERS

Federal employees’ rights to practice their faith is broadly protected, but in an era where more and more employees feel free, if not compelled to proclaim and preach their religious views to other employees questions are arising about just how far the right to express one’s religion goes. There is a great piece in the blogosphere about this from the folks at LAW.COM that we advise you to read. Here is a key passage. “Take this hypothetical: Richard works in a regional office of a large, multinational corporation with thousands of employees worldwide. He’s worked there over 20 years with a solid record. He would call himself a ‘devout Christian’ and believes that homosexual behavior is a sin because the Bible says so. One day, Richard comes to work and sees several new posters around the office as part of a company-wide diversity initiative. Each poster depicts a fellow employee with the slogan ‘Diversity is Our Strength.’ One also had the caption ‘Gay.’ In protest, Richard posts two passages from the Bible that condemn homosexual behavior right above his cubicle.”

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Posted on May 12, 2016 by AdminUN

NEW RULES ON LEAVE AS A REASONABLE ACCOMMODATION

EEOC has just published some very helpful to advice for those of us on either side of the bargaining or litigation tables who wrestle with the question of when employees must be given leave to accommodate a disability. Most of us should know by now disabled employees, whether permanently or temporarily, can be entitled to more leave than the FMLA gives them. The folks at FMLA Insights did a very good job of summarizing the key parts of the EEOC advice. We recommended you make this information widely known to colleagues. (See “EEOC Issues New Resource Document Addressing Leave as a Reasonable Accommodation under the ADA. What’s the Impact on Employers?”)

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Posted on May 9, 2016 by AdminUN

MSPB PANDERS A TINY BIT LESS TO AGENCIES

One of the most disappointing precedents to ever roll out of the Board established that agencies need not meet the tough standard of proof required to fire an employee for falsification, namely, that the employee intentionally gave false information or intended to deceive. It told agencies that all they need do to avoid that long-established standard is change the wording of the charge from “falsification” to “lack of candor.”   That, the Board said, “is a broader and more flexible concept whose contours and elements depend on the particular context and conduct involved.” In other words, even an unintentional false statement in an interview or on a form was enough to fire an employee. That triggered the adverse action equivalent of a third world blood bath across government. According to Cyberfeds.com, Continue reading →

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Posted on May 9, 2016 by AdminUN

CONGRATS TO CAROL AND ERNIE!

There is another very good piece of good news coming out of the FLRA these days, and it is thanks to Carol Pope and Ernie Dubester. (Sorry for the “Dis” Patrick, but we are pretty sure you would zero out the budget and turn out the lights if Koch Headquarters so signaled.) For years the FLRA had one of the least productive ALJ corps imaginable—precisely the kind of mess the Heritage folks wail about. But thanks to some quiet changes from the Authority’s top leadership, it has had an almost 400% increase in productivity. Here are some hard numbers. Continue reading →

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Posted on May 9, 2016 by AdminUN

EEOC PAYS EMPLOYEE FOR DAMAGED RELATIONSHIP WITH DAUGHTER

Employees victimized by illegal retaliation, harassment or other violations of the Civil Rights laws unrelated to compensation often do not have back pay claims. That could lead the victim to decide that fighting the matter is not worth the effort. But, as we have said before, “compensatory damages” can be awarded up to $300,000 on top of any back pay or even without a back pay order. We won’t cover all the grounds for claiming these damages. Even though we have touched on examples in other posts, any employee considering a claim for damages needs someone to thoroughly research all possibilities. Nonetheless, we believe it is worth passing along some of the more surprising precedents in any field of employment law because the memory just might ring a bell in someone’s future. This week’s EEOC releases contained a case where a woman claimed damages from her discriminatory treatment by management for the harm done her relationship with her daughter. We thought that was one of those cases unusual enough that it should be stored in a few memories around the blogosphere. The following is an excerpt from the decision that gave the employee $35,000 in damages. Continue reading →

Posted in EEO/Discrimination | Tagged | Leave a comment

Posted on May 3, 2016 by AdminUN

WHEN AN ORDER TO TELEWORK VIOLATES LAW

While the Telework Act clearly prohibits agencies from ordering employees to participate in telework, that is not the only liability an agency has if it orders an employee to work from home. EEOC pointed that out in Levi S. v. Dep’t of the Navy, EEOC Appeal No. 0120151301 (November 25, 2015).  In that case management ordered an employee to work from home because of its concerns about his repeated physical seizures which it said scared others and made them uneasy. When the agency argued that an order to telework was not an adverse employment action, the EEOC wrote, “We find that the change in Complainant’s work location described in his complaint constitutes a viable allegation of harm to a term, condition or privilege of Complainant’s employment.” Unlike an alleged violation of the Telework Act prohibition against forcing employees to telework, a violation of the civil rights laws would make the employee eligible for tens of thousands in damages, not to mention back pay and attorney fees.  

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