April 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.

Welcome New Client

We are delighted to report that AFGE Local 1300 has joined our family of Union retainer clients. Local 1300 represents employees of the Bureau of Prisons at the Federal Correctional Institution in Florence, Colorado. Welcome aboard!

We're Wired!

Thanks to some help from West Publishing Company, our law firm now has a web site. The internet address is: http/minahan.wld.com. (Note: there is no "www"). Check out the site and let us know what you think!

EEO Rulings

A couple of recent rulings by the courts on disability claims are way off base. In Smith v. Midland Break Inc., 7 AD Cases 1560 (10th Cir. 1998) the Tenth Circuit ruled that employers have no obligation to reassign employees who cannot perform the essential functions of their own jobs. The Court ruled that the obligation to consider reassignment to a vacant position arises only when a disabled employee is capable of performing the duties of his current position but it is difficult for the employer to keep him there. This is just plain wrong. The Americans with Disabilities Act could not be more plain in its requirement that reassignment to another position is the type of accommodation for disabled employees which every employer must consider.

If you thought that was strange, check out Reeves v. Johnson Controls, Inc., 7 AD Cases 1675 (2nd Cir. 1998). The Court there ruled that an employee suffering from panic disorder with agoraphobia is not a disabled individual entitled to the protections of the ADA. The employee suffered his attacks going over bridges, going through tunnels or traveling in crowded conditions. The Court ruled that "everyday mobility is not a major life activity under the Americans with Disabilities Act. " Strange.

As if you needed more reasons not to use the EEO process, the Fifth Circuit ruled in Gibson v. Brown, 76 FEP Cases 450 (7th Cir. 1998) that compensatory damages may not be awarded in the administrative process. In so doing, the Court disagreed with a decision by the Fifth Circuit last year which held that compensatory damages are available in the administrative process. According to the Seventh Circuit's reading of the law, compensatory damages are awardable only in a federal court lawsuit where either party has the option to request a jury trial.

Right to Privacy

A recent decision by the Sixth Circuit involved an unusual application of employees' privacy rights. The Court ruled that it was improper for a city to disclose personal information about undercover officers to defense attorneys representing gang members in a criminal case. The Court relied on the right to privacy in the U. S. Constitution. This right has fallen out of favor recently but it was the existence of this same constitutional right to privacy which was the basis for the Supreme Court's Roe v. Wade decision on abortion. Kallstrom v. Columbus, Ohio, 36 GERR 316 (6th Cir. 1998).

FLSA Award

In FDIC, 36 GERR 308 (1998), the FLRA upheld the award of an arbitrator who ruled that FDIC mistakenly classified certain employees as "professional" employees exempt from the FLSA's overtime requirements. The arbitrator ordered FDIC to pay backpay for the lost overtime. The FLRA also concluded that the employees were entitled to double damages, meaning an equal amount of their backpay as additional damages. The FLRA said that double damages must be the norm when overtime is improperly withheld and that a federal agency can avoid double damages only by showing that it acted in good faith and had reasonable grounds for believing it was not violating the law.

Contracting Out Halted

The National Air Traffic Controllers Association obtained a significant victory when a federal court ruled that the FAA must cancel its program to privatize 129 air traffic control towers. Natca v. Secretary of Transportation, 36 GERR 305 (N.D. Ohio 1998). Significantly, the federal judge allowed the union to bring the lawsuit on behalf of its members and did not, as so many courts do in these cases, refuse to hear the merits of the lawsuit on some technical ground. The Court found that certain 1982 and 1994 statutes applicable to the FAA prohibited the privatization in the manner contemplated by FAA and required compliance with OMB circular A-76 before any contracting out could occur.