January 1998

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.

Family and Medical Leave

Case decisions are now starting to appear on the 1993 Family and Medical Leave Act. The key requirements of the Act for federal employees are contained at 5 USC 6382. The law allows federal employees a total of 12 work weeks of leave during any 12 month period because of a serious health condition of the employee or in order to care for a family member with a serious health condition. Although the law does not guarantee paid leave, it does guarantee the time off. This means that qualifying leave under the FMLA is an absolute right of federal employees and is subject to no "undue hardship" defense. Clients with questions about this legislation or about some of the recent decisions interpreting it are invited to call us.

Enforcement of "Clean Record" Settlement

The Federal Circuit issued a strong decision in King v. Dept. of the Navy, 35 GERR 1530 (Fed. Cir. 1997) providing for enforcement of an MSPB settlement agreement. The agreement required the former employer to remove any reference to the employee's discharge from the "official personnel file. " The Court interpreted this to refer not only to the personnel records in the possession of the former employer but also to any personnel records maintained on the employee by other agencies, including OPM. The Court ruled that "when an employee voluntarily resigns in exchange for purging of the records that show the prior adverse action, the employee's goal, to which the agency agreed, is to eliminate this information as it may affect future employment with the government or elsewhere. "

Interpretation of $300,000.00 Limit in EEO Cases

The Sixth Circuit issued a very restrictive ruling on the $300,000.00 damages cap under the Civil Rights Act of 1991 in Hudson v. Reno, 36 GERR 7 (6th Cir. 1997). The Court ruled that this limit is the maximum amount that an employee can recover in a single lawsuit, no matter how many discriminatory events are involved in the lawsuit. The case involved a poor performance evaluation, a discriminatory denial of a pay raise, a memorandum issued to the employee accusing her of misconduct on the job and, finally, a claim that the employee was forced to resign because of discrimination. A jury ruled in the employee's favor on all these claims and awarded considerably more than $300,000.00. The Court ruled, however, that the $300,000.00 cap in the law is the maximum that the employee can obtain (except for back pay and attorney's fees) for the entire case. The court said that this limit applies not only to compensatory damages for emotional distress but to any award of "front pay" designed to compensate the employee for loss of earnings in the future.