MINAHAN AND SHAPIRO, P.C.
ATTORNEYS AT LAW
165 SOUTH UNION BOULEVARD
LAKEWOOD, COLORADO 80228
LAW FIRM NEWS
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. Check out our web site at http://minahan.wld.com .
United We Stand
The terrible events of last week have reminded us of the important obligations of public service. Federal employees of all types will be in the front lines in the new campaign against terrorism. We salute your dedication. We also urge you to join us in contributing to one or more of the disaster relief funds established for the victims of last week's atrocities and their families.
Right to Accurate Position Description
Although the law does not allow a grievance to be filed over whether the permanent classification of a given job is correct, employees do have the right to grieve the accuracy of their position descriptions. This can be very helpful, as an accurate position description goes a long way toward justifying a higher grade in a classification appeal filed with OPM. In Marine Corps Logistics Base Albany, Georgia, 57 FLRA No. 58 (2001) the Authority upheld the award of an arbitrator who ordered an agency to implement a new position description written by the grievants and their supervisor. The Authority rejected the agency's argument that this interfered with its management rights.
Right to Personal Information is Personal
The decision in Bavido v. Apfel, 215 F. 3d 743 (7th Cir. 2000), did not involve an employment issue but resolved an important question under the Privacy Act. The Social Security Administration had a regulation that left it up to a "designated representative" as to whether a claimant could get access to his own medical records. The court ruled this regulation was invalid, as the right to obtain the records belonged to the claimant himself. This may be helpful in other cases where federal agencies allege they cannot provide certain medical or treatment records directly to the affected employee.
Discrimination in Discipline
There has been quite a bit of controversy concerning the type of evidence necessary to make out a claim of discrimination on a disciplinary action. Some courts have suggested that an employee claiming that he was disciplined for a discriminatory reason must point to other employees whose situations are identical to his in all respects in order to show unequal treatment. The Tenth Circuit took a more common sense approach to this problem in Ortiz v. Norton, 254 F. 3d 889 (1 0th Cir. 2001). The case involved an Interior Department employee who was refused a leave of absence in order to serve a jail sentence for an off-duty offense. The employee claimed discrimination on the basis of national origin. The agency argued that no discrimination could exist unless the employee could point to other employees in the same type of job who asked for the same amount of leave for the same reason. The court disagreed, saying this would make the establishment of a prima facie case of discrimination too onerous. The court said that the employee was not required to compare himself to other employees who were identical in all respects but that it was enough for the employee to point to other evidence showing that his national origin may have been a factor in the decision to deny him leave. This included evidence that the employee's job had been left open and unfilled and that the employer engaged in a practice of not promoting Hispanic employees.
Bargain All You Want
We have received a number of inquiries recently about how long a "memorandum of understanding" or other type of "side agreement" remains in effect. One client said it had been stuck with an MOU governing procedures for selecting employees for details since 1991. Please remember that an agreement that does not have a definite term runs indefinitely. This means that if the MOU does not say it lasts for a certain number of months or years, it can be changed at any time by either party (the union or management). All that is necessary is for the party wanting to make a change to notify the other party of its desire to negotiate.
We would also like to remind clients about the "Bruner presumption." This arises in situations where an employee has applied for disability retirement benefits from the Office of Personnel Management. The ruling in Bruner v. OPM, 996 F. 2d 290 (Fed. Cir. 1993) was that if an employee is removed from employment for medical inability to perform, there is a presumption that the employee is entitled to a disability retirement annuity. It is important to keep this presumption in mind if you are working with an employee who is having serious difficulties holding on to his or her job. Sometimes the employee gets into trouble by taking too much time off work or the employee's performance steadily deteriorates. If you discover that the employee is experiencing chronic health or emotional problems that won't go away, try to urge both the employee and the employer to discuss a separation from employment for medical reasons. This will avoid a separation for fault or misconduct and, assuming the medical documentation supports it, give the employee an excellent opportunity to obtain a disability retirement annuity.