July 1999

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.

Reinstatement After Off-Duty Conviction

We just won an MSP13 appeal in the case of Washington v. Dept. of the Interior. Our client had been convicted of an offense involving taking advantage of his minor child. His employer was so outraged by this that it fired him without considering any mitigating circumstances. We presented evidence from his probation officer and rehabilitation counselor showing that he was extremely remorseful, had paid a heavy price for his offense and was an excellent candidate for rehabilitation. The probation officer testified that firing him from his job was actually a greater risk than retaining him because of the loss of financial stability for his family. The MSPB's administrative judge reinstated the employee to work but with a 120 day suspension.

Supreme Court Decisions

The Supreme Court was very busy in June issuing a number of significant decisions in the field of employment law:

The Court held that federal employees have a right to union representation during investigative interviews ("Weingarten" meetings) which are conducted by independent entities within the agency, such as the Inspector General. This should be useful in other cases where an air force base, for example, claims there is no right to union representation when an OSI agent is conducting the interview. NASA v. FLRA, 98-369 (June 17, 1999).

The Supreme Court ruled that the EEOC has the power to award compensatory damages for EEO violations even though the statute authorizing compensatory damages mentions only jury trials. West v. Gibson, 98-238 (June 14, 1999). It was particularly interesting how the Court handled the issue of sovereign immunity. The court said there did not need to be a specific grant of authority to the EEOC to award compensatory damages since the EEOC was given general power to fashion "appropriate remedies. " Since compensatory damages is a type of remedy that Congress has allowed, the Supreme Court saw no reason why the EEOC should not be able to award them. We believe this ruling also means that the MSP13 and labor arbitrators can do the same.

Then there were the disability cases. These decisions were so bad that Congress may be prompted to amend the Americans with Disabilities Act. The decisions were Sutton v. United Airlines, Murphy v. United Parcel Service and Albertsons, Inc. v. Kirkingberg, all issued on June 22, 1999. All three decisions concerned the definition of a person with a disability covered by the ADA. The Supreme Court said that a person cannot be considered disabled unless she is significantly impaired at the time the complaint arises. One of the cases involved employees who needed to wear prescription eye glasses, and there is no big problem finding that employees like this are not covered by the ADA. But the Supreme Court went a lot further. It said that any employee whose disabilities are under control is not covered by the ADA. This would include diabetics and epileptics whose medication is working. The dissenting justice said this would even include an employee with a prosthetic leg which works well. These decisions carry a couple of strange implications. First, an employee could be covered by the ADA one day and not covered by the ADA the next day depending on how his medication is working. Second, the Supreme Court's decisions exclude from ADA protection a class of employees Congress certainly intended to protect: those who are discriminated against because of myths, fears and stereotypes about people with disabilities. According to the Supreme Court, an employer could fire an epileptic just because it was uncomfortable around epileptics. So long as her condition was under control, she would not be protected by the ADA. Congress giveth and the Supreme Court taketh away.

Protection from Reprisal

The Eleventh Circuit issued a helpful decision in Clover v. Total System Services, 79 FEP Cases 1500 (11th Cir. 1999). The case involved an employee who served as a witness during an employer's in-house investigation of a sexual harassment charge filed by a co-worker. The employee was later fired. The employer argued this could not amount to EEO reprisal because the employee herself had not filed an EEO charge. The court disagreed, saying that one who participates in any type of investigation prompted by someone else's EEO charge is protected from reprisal.