Although the law does not allow a grievance to be filed over whether the permanent classification of a given job is correct, employees do have the right to grieve the accuracy of their position descriptions. This can be very helpful, as an accurate position description goes a long way toward justifying a higher grade in a classification appeal filed with OPM. In Marine Corps Logistics Base Albany, Georgia, 57 FLRA No. 58 (2001) the Authority upheld the award of an arbitrator who ordered an agency to implement a new position description written by the grievants and their supervisor. The Authority rejected the agency's argument that this interfered with its management rights.

The decision in Bavido v. Apfel, 215 F. 3d 743 (7th Cir. 2000), did not involve an employment issue but resolved an important question under the Privacy Act. The Social Security Administration had a regulation that left it up to a "designated representative" as to whether a claimant could get access to his own medical records. The court ruled this regulation was invalid, as the right to obtain the records belonged to the claimant himself. This may be helpful in other cases where federal agencies allege they cannot provide certain medical or treatment records directly to the affected employee.

We have received a number of inquiries recently about how long a "memorandum of understanding" or other type of "side agreement" remains in effect. One client said it had been stuck with an MOU governing procedures for selecting employees for details since 1991. Please remember that an agreement that does not have a definite term runs indefinitely. This means that if the MOU does not say it lasts for a certain number of months or years, it can be changed at any time by either party (the union or management). All that is necessary is for the party wanting to make a change to notify the other party of its desire to negotiate.

We would also like to remind clients about the "Bruner presumption." This arises in situations where an employee has applied for disability retirement benefits from the Office of Personnel Management. The ruling in Bruner v. OPM, 996 F. 2d 290 (Fed. Cir. 1993) was that if an employee is removed from employment for medical inability to perform, there is a presumption that the employee is entitled to a disability retirement annuity. It is important to keep this presumption in mind if you are working with an employee who is having serious difficulties holding on to his or her job. Sometimes the employee gets into trouble by taking too much time off work or the employee's performance steadily deteriorates. If you discover that the employee is experiencing chronic health or emotional problems that won't go away, try to urge both the employee and the employer to discuss a separation from employment for medical reasons. This will avoid a separation for fault or misconduct and, assuming the medical documentation supports it, give the employee an excellent opportunity to obtain a disability retirement annuity.