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 →

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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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Posted on May 2, 2016 by AdminUN

UNONS WATCH AS IRS REPORTS UNPAID ANNUAL TAXES RISE TO $458 BILLION

The title of this posts comes from a simple but powerful New York Times story that recently explained why the federal government is understaffed, its employees often underpaid, its work largely undone, and its reputation less than stellar. The money that law says should be paid into the US Treasury is not being deposited thanks for a very healthy dose of tax cheats living among us. (This figure does not even include all the companies doing business in the US who rent lofts or just mailboxes in off-shore tax havens to “legitimately” avoid paying what they would owe if they operated as US companies.) If even half this was collected each year there would be far, far fewer worries about Medicare shortfalls, the cost of universal health insurance, crumbling bridges, unsafe drinking water, and zika-like plagues. On the other hand, the tax cheats would be very unhappy, and cut their political contributions to Congressional front men drastically. If an ISIS-connected syndicate was stealing this money from Americans each year, ships would be launched, drones fired up, and boots put all over the ground. But thanks to a few Congressional hitmen who almost daily blame the underfunded IRS for this, Americans move along unaware that this theft cheats every man, woman and child out of about $1,500 a year in federal benefits. So, what can unions do about this? Continue reading →

Posted in Lobbying | Tagged | 1 Comment

Posted on April 29, 2016 by AdminUN

A NEGOTIATOR’S WAKE UP CALL

Every once in a while a case comes along that is just loaded with teaching moments for both sides and the Authority’s newest decision is one of them for negotiators on either side of the table.  In this case the parties had to go to the FSIP to resolve their bargaining dispute, which the Panel did on May 9 via a final and binding order. The union then refused to sign or implement the agreement alleging that the following ground rule language entitled it to delay signing for at least 14 days, ”At the completion of negotiations, the Employer will assemble a legible form of the completed Agreement within five (5) working days for both parties to review.  Execution will take place no later than fourteen (14) days after completion of negotiations.” On May 14th the union also announced that it was going to submit the contract for ratification after that review. The agency tried to convince the union to sign immediately, but gave up on July 9, when it submitted the contract for agency head review. The agency head disapproved the agreement on July 11.  The bargaining agency then filed a ULP charge against the union for a refusal to sign the agreement. Continue reading →

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Posted on April 27, 2016 by AdminUN

WHEN THE DENIAL OF TELEWORK COULD VIOLATE LAW

Just a few weeks ago, Judge Rosemary Collyer, the judge who declared the proposed DHS collective bargaining rules illegal, issued an interesting decision that gives employees suspended or removed from telework a chance to overturn the decision and earn some compensation for the discomfort that caused. The agency had argued that the court’s precedent was that, “[T]he denial of an employee’s request to work from home on a few occasions, without more, does not constitute an adverse employment action under Title VII, even under the seemingly broader standard applicable to retaliation claims.” Typically, employees need to suffer some significant loss or harm to have a basis for filing an EEO complaint; it is called an “adverse employment action.” Collyer acknowledge that, but then recognized an exception.  She said the cases the agency pointed to, “…involved the denial of an initial telework request, as opposed to the suspension of an existing telework arrangement. The suspension of an existing privilege or condition of employment (i.e., telework arrangement) could dissuade a reasonable worker from filing or supporting a charge of discrimination against the employer because the worker could feel that the charge will result in further adverse actions and retaliation. The fact that the suspension was temporary and that Ms. Saunders could still telework on an ad hoc basis does not change the analysis. SBA fails to dispute this point substantively. At the very least, there is a genuine issue of material fact as to whether the suspension was materially adverse.” See Karla Saunders, Plaintiff, v. Karen G. Mills, Administrator, Small Business Administration, Defendant , D.C.D.C. No. 11-486 (RMC) (March 24, 2016)

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Posted on April 25, 2016 by AdminUN

WHEN IS OBESITY A DISABILITY?

A new U.S. Circuit Court decision outlines the criteria an obese employees must meet in order to request an accommodation.  The law firm of Ogletree Deakins wrote a good piece about what the case means that we recommend. It is entitled, Is Obesity a “Disability” Under the ADA? Not Without Physical Impairment, Eighth Circuit Rules. This court’s opinion of one of several varying viewsof what the law requires, as outlined in a HR Executive Online posting. Checkout the HR Daily Advisor for suggestions on accommodations employers should consider for the obese.

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Posted on April 22, 2016 by AdminUN

WHY DOESN’T FSIP GET IT ABOUT DECISION FALLOUT?

One of our continuing beefs with the Panel is that it regularly fails to consider the long-term fallout of its decisions. For example, it recently rejected a union proposal that assignments to long-term travel TDY be given to the least senior employee when ”… there are two or more employees equally qualified for the assignment and there are no volunteers.” The Panel employee chose instead this agency proposal, “the decision to assign an employee to long-term TDY will not be based on criteria unrelated to mission.” The Panel chose the agency’s offer because the union failed to demonstrate a need for its rule and because it thought that management should have the discretion to select an employee with specialized skills and experience. Let’s put aside the fact that the union’s proposal allowed management to consider specialized skills and experience when determining qualifications, and focus on what can happen next when management tries to implement this clause. Continue reading →

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Posted on April 22, 2016 by AdminUN

OMG!!!! REALLY? AFTER 40 YEARS OF CASE LAW.

Not long ago at all we ran across a case that left us confused about whether to be angrier with the agency or the union. We are not going to identify the parties or the case so that we can say what we really think. (Besides one of the two parties is really, really sensitive about any publicizing of its less-than-admirable representational moments.) The grievance was filed in Austin, Texas in 2009 and the arbitration decision was issued in late 2015. You are probably thinking that it must have been horribly complex or the employee went into a coma for six years or it took years of litigation to get the necessary documents into the record. Nope! It was a simple disagreement over an appraisal score. The employee wanted to be rated one level higher, which would have increased the amount of her annual performance award by $50.00. So, why did it take six years? Continue reading →

Posted in Arbitration Exceptions | Tagged | 1 Comment

Posted on April 18, 2016 by AdminUN

OUR COMPLIMENTS TO FLRA ON NEW WEB SITE

We will always remember Carol Pope as the person who not only kept Dale Cabiness from pulling the plug on FLRA, but who also nursed it off life support once Dale resigned. Today, we saw yet another sign of how healthy the Authority has become when we clicked on FLRA.gov and saw a brand new web site. Although the old site was not hostile to readers as some union sites are with their tiny print, word-clogged front pages and inscrutable placement of key data, this one has to rank at the top of the user-friendly sites in government. (AFGE.gov is an example of a top-notch union site.) The routes to different data are clearly presented, the key information resources are just one-click from the home page, and thing is attractive—a key feature of an organization looking to invite people in rather than scare them away. While we are not yet ready to say that FLRA is in tip-top shape, with this bit of modernization out of the way the members can turn their attention to toning up its still sagging parts, such as the glacial speed of the ALJs, and the nearly indecipherable case law around particularized need, formal meetings, past practice, and a few other practitioner-hostile areas.

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Posted on April 13, 2016 by AdminUN

ACCOMMODATING EMPLOYEES WHO CANNOT REPORT TO WORK

The law firm of ShawValenza just posted a very interesting article under the title above.  We recommend it for those working in the reasonable accommodation area, if only as a useful thought-provoking piece about how creative accommodation can and sometimes need to be.

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