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.

Pull for Andy

We would like to ask all our friends and clients to remember Andy Ford in their thoughts and prayers. Andy is an officer of AFGE Local 987 at Robins Air Force Base, Georgia. We can count on one hand the number of union representatives who are in Andy's league. Few can match his compassion, his intelligence and his dedication to working people and the union movement. Last week, Andy underwent surgery for a serious condition and we all wish him the very best in his recovery.

Nexus Cases

The Federal Circuit issued an interesting decision in Pope v. U.S. Postal Service, 114 F. 3d 1144 (Fed. Cir. 1997). The case approved of a "double presumption" of nexus in sexual harassment cases: a presumption that serious sexual misconduct creates a hostile working environment and a presumption that such misconduct harms the efficiency of the service. The court, however, wrote a key footnote in which it stated that no presumption shifts the burden of proof over to the employee. Rather, a presumption only requires that the employee come forward first with some evidence tending to undermine the presumption.

New EDP Category

OPM has issued a proposed regulation which would create a new category for hazard pay for General Schedule employees. The proposal, issued on June 30, 1998, would provide an 8 percent differential to employees who must commute to work at a job site more than 12,795 feet in altitude. This is obviously a very important regulation (to anyone here in Colorado!).

Desk Search Issue

One of the oldest cases still in litigation in this country is Ortega v. O'Connor. The case involves a lawsuit filed by a hospital psychiatrist challenging a search conducted of his personal effects in the work site. The case began in the 1980s and has been up and down from the Supreme Court. Now, the Ninth Circuit has ruled that the search violated the employee's Fourth Amendment rights because the public employer did not have a reasonable suspicion that the employee was engaging in misconduct. Ortega v. O'Connor, 14 IER Cases 97 (9th Cir. 1998).

Defamation Lawsuits

In a recent decision the Seventh Circuit reaffirmed the rule that supervisors may not generally sue their employees for defamatory accusations. The employees in this case filed discrimination complaints, wrote to agency headquarters and to members of Congress. They complained about the supervisor's allegedly erratic behavior and potential for violence. The supervisor sued, but the court dismissed the lawsuit on the basis that the employees were acting within the scope of their employment by raising these concerns. Taboas v. Mlynczak, 36 GERR 814 (7th Cir. 1998).

Civil Rights for Women

We would like to remind clients of a law passed in 1994 which hasn't received much notice. The law is 42 USC 13981, which provides that any person who commits a crime of violence motivated by gender shall be liable to the party injured for compensatory and punitive damages. This may provide an additional option to employees in certain sexual harassment cases. The law was recently interpreted in a case involving certain New York public employees: Crisonino v. New York Ci1y Housing Authority, 76 FEP Cases 75 (S.D.N.Y. 1997).

New Handicap Discrimination Rulings

• The Eighth Circuit issued a strange decision in Meester v. Runyon, , 36 GERR 875 (8th Cir. 1998). Meester developed carpal tunnel syndrome while working for the Postal Service. Her workers compensation claim was approved and she was placed on limited duty. The Postal Service then offered her another job, which she rejected as medically unsuitable. The Labor Department, however, disagreed with her and ruled that she must accept the job. She then sued the Postal Service under the Rehabilitation Act, alleging that her disability had not been properly accommodated. The Eighth Circuit dismissed the entire lawsuit on the basis that it was an improper attempt to circumvent the Labor Department's ruling under the workers compensation statute. One of the judges issued a strong dissent and the case may be appealed.

• A federal district court recently ruled that all employees are protected from reprisal for seeking reasonable accommodations, even if they are not actually handicapped. In Mathews v. American States Insurance Company, 7 AD Cases 1534 (D.Kan. 1997), the Court held that an employee asking in good faith for a reasonable accommodation for a physical condition is protected from reprisal, even if he is not "disabled" and even if he is not entitled to the accommodation.

• The courts continue to stress the importance of the "interactive process" whereby disabled employees and their employers are expected to work together to accommodate the disability before any action is taken. In Steffes v. Stepan Company, 8 AD Cases 352 (7th Cir. 1998) the Court faulted the employee for failing to get her doctor to address issues raised by the employer. The employer told the employee it would not allow her to return to work in an area with dangerous chemicals unless she obtained a medical release. The employee obtained a general medical release but did nothing to address the concerns raised by the employer about the workplace hazards.