January 1997

Legislative Update

Public Law 104-208 is a massive enactment containing all the funding authorizations for the federal government for fiscal year 1997. True to form, Congress sprinkled gifts and land mines for federal employees throughout the legislation. Here are some of the more interesting provisions:

Section 624 continues a prohibition from prior funding bills on employee training classes which are likely to cause stress, which contain "new age" belief systems, which are offensive to employees' lifestyles or which contain unnecessary information related to AIDS awareness.

Section 620 effectively repeals, at least for this fiscal year the ruling in Armitage v. United States, 991 F. 2d 746 (Fed. Cir. 1993). The Court there ruled that employees who are regularly scheduled to work on Sundays must be paid Sunday premium pay when they take annual or sick leave on Sundays. Congress overruled this and said that no employee may receive Sunday premium or differential pay unless the employee is actually performing work on the day in question.

• Section 634 amends 5 USC 6302 to provide that employees who are being separated by RIF may consume their unused annual leave even after the date of separation if this will enable them to qualify for an annuity.

• Section 649 prohibits federal agencies from expending funds to provide employee home addresses to labor unions unless the employee has consented or unless a court has ordered the disclosure.

• Section 663 is the re-authorization of voluntary separation incentives for non-defense employees. This authority is provided to federal agencies for fiscal year 1997 and allows for separation incentives up to $25,000.00.

Clients who want more information on these provisions or would like copies of them are welcome to contact our office.

The Third Circuit in Shiring v. Runyon, , 90 F. 3d 827 (3d Cir. 1996) issued a reminder about a 1992 amendment to the Rehabilitation Act. Clients often ask whether the Americans with Disabilities Act controls federal sector claims of handicap discrimination. Strictly speaking, the ADA does not apply to the federal government. Instead, the applicable law is the Rehabilitation Act of 1973. However, Public Law 102-569, enacted in 1992, amended 29 USC 794(d) to provide that the standards used in deciding whether the Rehabilitation Act has been violated shall be the same standards applied under the ADA. With this amendment in mind the court in Shirina ruled that the Postal Service is obligated to offer reassignments to vacant positions to qualified handicapped employees.

Equal Pay Act

Employees raising claims of sex discrimination under the Equal Pay Act usually point to co-workers of another gender performing the same work for more money. The EEOC has now ruled that valid comparisons can also be made to employees of the opposite gender who occupied the same position as the complainant before or after she took the job. Johnson v. Dept. of the Army, EEOC No. 05950185 (1996).

Other New Cases

The Ninth Circuit ruled in Brock v. United States, 64 F. 3d 1421 (9th Cir. 1995) that a federal employee would be allowed to pursue a tort claim against the government for negligent supervision of a supervisor who allegedly assaulted and raped her, notwithstanding the fact that she also had a remedy under the civil rights statutes. . . In Bureau of Prisons, 52 FLRA No. 43 (1996) the Authority reaffirmed that there is a right under the "Weingarten" statute for union representatives and employees to confer privately during investigations. However, the Authority weakened this right by saying that it did not apply on every occasion. Whether employees have this right, said the Authority, depends on whether a private conference is necessary to ensure active and effective union representation. How's that for an easy rule to follow?