LAW FIRM NEWS

December 2005

Our Regular Reminder

This is a reminder to all our union clients of the various services available through our firm. Most of our retainer agreements provide for unlimited legal advice, on-site visits and filing and processing of unfair labor practice charges. Please do not hesitate to contact us if you would like to have one of us conduct training, meet with employees or review a case for arbitration or MSPB. We are also just a phone call or a fax away if you need help or feedback researching any legal issue on federal sector employment. We also provide representation to Union members in MSPB appeals, EEO complaints and labor arbitration for reduced or flat fees if there is a chance we can obtain attorneys fees from the agency if we win. Check out our website at http://minahan.wld.com.

Pay Cases

A number of interesting decisions affecting employee pay entitlements were issued recently:

The Supreme Court issued a unanimous decision on pre and post-shift activities IBP Inc., v. Alvarez, on November 8, 2005. The case involved whether certain activities performed by employees immediately before and after work are 'hours of work' and are therefore paid time under the Fair Labor Standards Act (FLSA). The case involved employees at a meat processing plant who were required to put on protective gear and clothing before walking to the work station and to take off the protective gear and clothing at the end of the shift after walking from the work station to the changing room. The Supreme Court ruled that the time spent putting on and taking off the gear and equipment is working time and the time spent walking to and from the work station wearing the protective gear and clothing is also working time. The Court distinguished this from the situation where an employee simply checks in and checks out, or clocks in and clocks out. These activities are not 'integral or indispensable the job' and so they are not considered working time, and so the time spent walking to and from the work station is not considered working time either. However, as with the employees at the meat packing plant, if an employee is required to perform a task unique to his or her job, and the job can't be performed without the employee first doing that task, the time the employee begins the task is likely to mark the start of the work day and the time the employee ends the task is likely to mark the end of the work day.

The U.S. Court of Federal Claims considered whether time spent by law enforcement officers with their working dogs is 'hours of work' in Bull v. United States, 10 WH Cases 2d 1687 (Fed. Cl. 2005). The court ruled that time spent practicing with firearms (by the officers, not the dogs) and time spent grooming the dogs is not paid time. However, the court decided that time spent laundering and processing training towels, constructing training aid containers, and carrying for and maintaining weapons are all work done primarily for the benefit of the agency and so are considered 'hours of work' for which employees must be paid under the FLSA.

There is never any shortage of disputes over whether, and under what conditions, employees must be paid for 'on-call' time (during which they must be prepared to respond to a call or a page and return to work). On-call time is not considered to be paid time if the employee is generally free to go about her business as long as she stays in the local commuting area. An arbitrator considered a grievance by a city police officer who failed to respond to his pager in City of Hialeah, Florida, 121 LA 745 (Hoffman, 2005). The officer was suspended for 10 hours without pay because he did not respond to his pager and report back to work after a hurricane warning was issued. After the officer was asked why he failed to report back to work, he said he didn't get the page, and the city then confirmed that his pager was defective. The city maintained, however, that he was responsible to keep his pager in working order and that he should have known about the hurricane warning from watching T.V. or listening to the radio and that he should have reported to work. Arbitrator Hoffman ruled in favor of the officer, saying the officer had no reason to believe his pager was defective and he could not be charged with violating the city's 'on-call' policy.

Fascism: Are We There Yet?

We came across an interesting article by Professor Laurence W. Britt called 'Fascism Anyone?' published by Free Inquiry magazine on July 15, 2003. http://homepage.ntlworld.com/catnipdave/store/Fascism_Anyone.htm. It makes fascinating reading no matter where you fall on the political spectrum. Professor Britt summarizes the common features of political systems that were considered fascist, from Nazi Germany to Fascist Italy, to Franco's Spain, to a number of other regimes. His 14 'common threads' should be taken as warning signals for any free society.

EEO: You Mean There's a Law Against Discrimination?

The Seventh Circuit recently nominated itself twice for 'bonehead decision of the month.'

· The plaintiff in Cardoso v. Bosch Corp., 96 FEP Cases 1057 (7^th Cir. 2005) sued his employer claiming that he was paid less than his co-workers doing the same work because he is from Brazil. Mr. Cardoso asked his supervisor why he was getting paid less he says the supervisor's response was 'because you are Brazilian.' The Seventh Circuit ruled against his claim of national origin discrimination, saying that since the supervisor was not the management official who actually set salary rates for employees the supervisor's statement was irrelevant.

· The most popular form of 'docket control' in the past ten years or so has been the 'adverse employment action doctrine,' according to which complaints of discrimination can be dismissed on the basis that what the employee is complaining about is not 'sufficiently adverse' to affect his or her conditions of employment. Thus, if a supervisor tells you to wait an extra five minutes to take your afternoon break because you are Hispanic, you have no case because this was too 'minor' to affect your conditions of employment. In Whittaker v. Northern Illinois University, 96 FEP Cases 982 (7^th Cir. 2005), the employee sued her employer alleging that she had been subjected to discrimination on the basis of sex and to retaliation for having filed an EEO complaint when she was given a negative performance evaluation, a written warning, was required to provide a doctor's slip when she was out sick and was given a 'paper' 3-day suspension in her personnel file (but without losing 3 days pay). According to the court, none of this resulted in 'tangible job consequences,' nor was it possible to say that the employer's action 'would have dissuaded a reasonable employee from making or supporting a charge of discrimination.' We can only hope that, some day, one of these judges gets locked out of the executive washroom or gets a draft of a decision back with too many typographical errors and remembers Ms. Whittaker.

Mobile Attorneys

It's about time! Federal agencies have argued for years that attorney's fees ought not to be paid to an attorney who wins a case for a federal employee if the attorney is not licensed to practice law in the state where the employee lives. This argument never got too far, but apparently some idiot administrative judge at MSPB fell for it and denied a claim for attorney's fees because the appellant's attorney was licensed in a different state. The appellant filed an appeal with, the U.S. Court of Appeals for the Federal Circuit. On November 15, 2005, the court convincingly rejected the federal agency's argument in Augustine v. Dept. of Veterans Affairs. The Federal Circuit reminded the MSPB that, many years before MSPB even existed, the Supreme Court ruled that no individual state may dictate to the federal government or one of its agencies who can and cannot act as a representative before that agency. This is derived from the 'supremacy clause' of the U.S. Constitution. This should be the last time we ever hear the argument that out-of-state attorneys cannot represent and file attorney's fees claims for federal employees in administrative hearings.

Management Grievance: The Union was Acting Like a Union

It is a truism that, somewhere, there is an arbitrator who will buy just about any argument a party can make. An agency found such an arbitrator in Willow Grove Air Reserve Station, Pennsylvania, 61 FLRA No. 25 (2005). The arbitrator sustained a grievance filed by the agency against the union on the basis that the union falsely claimed in a letter to the FLRA that the agency had failed to comply with an FLRA order in a ULP case. The arbitrator ordered the union to post a notice of apology and to assign a new representative to replace the union president for six months. The union appealed and the FLRA basically said 'you've got to be kidding.' The FLRA set aside most of the arbitrator's award.