March 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.

Proposed EEOC Regulations

At long last, EEOC is proposing changes to 29 CFR Part 1614, which regulates the processing of EEO complaints in the federal sector. The centerpiece is the proposal to do away with agency final decisions on EEO complaints, making the decisions of EEOC administrative judges equal to the decisions of MSPB administrative judges. No longer will federal agencies have the power to reject those decisions as mere recommendations. If dissatisfied, they will have to appeal to the EEOC in Washington. This is a huge change and, if EEOC can just get some additional funding to handle its workload, it might mean that EEOC would at last be a viable alternative to federal court. In other ways, the proposed changes don't go far enough. EEOC proposes to make alternative dispute resolution available, but not to require it. The proposal gives administrative judges the power to dismiss complaints filed by employees who are abusing the process, but provides no sanction for agencies that flagrantly or repeatedly violate the law. While giving administrative judges the power to make binding decisions, the regulations still do not confer on administrative judges the power to rule on requests for enforcement of settlement agreements or final orders - the same power MSPB administrative judges have enjoyed for years. The most glaring omission is the absence of any sanction for late processing of complaints. The regulations continue to require agencies to investigate complaints within 180 days and EEOC administrative judges to issue decisions within 180 days, but no sanctions are provided for missing these deadlines. (We all know what happens to complainants who miss deadlines!)

We urge all clients to write to EEOC expressing their agreement with the proposed changes and suggesting that EEOC needs to go further to truly reform the federal sector EEO process. Comments can be faxed to Frances M. Hart, EEOC Executive Officer, (202) 663-4114.

Other EEO Developments

The Fourth Circuit recently ruled that a woman subjected to a series of "minor" actions because she spurned a supervisor's sexual advances has a right to file a sexual harassment lawsuit. She was denied the chance to attend a conference, required to monitor and discipline a co-worker and given extra work and undesirable assignments. Reinhold v. Virginia, 75 FEP Cases 1862 (4th Cir. 1998). Ordinarily this would not be newsworthy except that the Fourth Circuit and some other courts have been suggesting in recent years that any action taken against an employee short of removal from employment or denial of a promotion is not enough to affect the employee's working conditions.

The Seventh Circuit ruled that transferring an employee away from individuals causing him stress would amount to an undue hardship on an employer. The employee was disabled by job induced stress but the court said that it was unreasonable to require the employer to consider his stress level whenever assigning projects to coworkers or teams. Gaul v. Lucent Technologies, Inc., 7 AD Cases 1223 (3rd Cir. 1998).

In another decision showing how important it is for employees to seek accommodations for their disabilities before actions are taken against them by the employer, the Fourth Circuit dismissed a Rehabilitation Act suit by a Defense Department employee. Davidson v. Perry, 36 GERR 169 (4th Cir. 1998). The employee was fired for poor performance and later claimed that her poor performance was related to an athsmatic condition. The court said, however, that she did not inform her employer of this and that the employer was not otherwise aware of it.

Federal Circuit Rulings

In Roche v. MSPB, 36 GERR 218 (Fed. Cir. 1998) the Federal Circuit reversed a decision by the MSPB which dismissed an appeal filed under the 1994 Veterans Rights Statute. This is the statute that protects federal employees from discrimination in any terms and conditions of employment based on their past military service or current military obligations. The court emphasized that there was no time limit to file such an appeal and that there was no requirement that an employee wishing to file such an appeal with MSPB exhaust other procedures first.

The Federal Circuit upheld a lower court decision disallowing overtime pay for dog handlers in the Border Patrol. These employees were required to keep the dogs at home and to transport them to and from work. The court ruled that their commuting time was not "hours of work" since the simple restriction on making them drive directly to work without stopping did not amount to requiring them to perform work while traveling. Bobo v. United States, 36 GERR 219 (Fed. Cir. 1998).