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 r 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, 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 .
"Hardship Exemption" from Compressed Workweek
Dan won an arbitration decision on December 12, 2001, involving the "hardship exemption" in 5 USC 6127. This statute says that federal agencies shall excuse an employee from a compressed work week if it would impose a personal hardship on the employee. In this case, the employee presented a letter from his doctor saying that his heart condition might be affected by working more than an eight hour day. The Army Corps of Engineers argued that its doctor's opinion was entitled to more weight but Arbitrator Eric Lindauer disagreed and ruled in the employee's favor. Two factors are worth noting. First, the Agency argued that the employee failed to prove he was a person with a disability. We had to remind the Agency that this was not an EEO case and the employee did not have to prove disability discrimination to prevail. Second, the Agency argued that the statute left it up to them to decide whether to grant the hardship exclusion. The Arbitrator rejected this.
Evidence Counts for Something
Barrie won an arbitration case on January 15, 2002, for an employee who was fired from his job at Hill Air Force Base, Utah. The employee was accused of drinking on duty and withholding material facts during an investigation into his role in breaking up a fight between two other employees. Arbitrator Douglas Collins sustained only the minor charge of drinking during a lunch break and ordered the Agency to reinstate the employee with full backpay and a written reprimand. The award is a refreshing reminder that real evidence needs to be presented to prove a charge of misconduct. The Agency grounded a number of its accusations on hearsay and speculation. In particular, the Air Force pursued one of its favorite methods of proof by presenting an OSI report as proof of its allegations. Arbitrator Collins reminded the Air Force that these reports are not a substitute for live testimony from witnesses with personal knowledge or documents, tapes or photographs proving the accusations against the employee.
Readers of this newsletter have seen how the courts have weakened the Americans with Disabilities Act ever since it was passed in 1990. The Supreme Court administered the fatal blow on January 8, 2002, in its decision in Toyota Manufacturing v. Williams. The Court ruled there was insufficient proof that the plaintiff, an assembly line worker, was a "person with a disability" because she suffered from carpal tunnel syndrome which disqualified her not only from her job but a host of other jobs requiring manual dexterity. To be a person with a disability, said the Court, that person must suffer from a physical impairment which substantially interferes with one or more of her major life activities. The Court sent the message it does not view working as a major life activity, so proof that one is physically unable to perform a job or even a whole class of jobs means nothing. "Repetitive work with hands and arms extended at or above shoulder levels for extended periods of time" said the Court, "is not an important part of most people's daily lives." The Court stressed that even after Ms. Williams' condition worsened, "she could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry and pick up around the house." This wasn't even the funniest part of the decision. The Court's interpretation of the key statutory language in the ADA boggles the mind. The Court said, "these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled." The old rule was that remedial legislation should be interpreted broadly to accomplish its purposes. The Court also said that "substantially" in the phrase "substantially limits" suggests considerable or to a large degree. Try telling that to a federal employee who appeals an MSPB decision against him to court. In that situation, the Court will tell the employee that the MSPB's decision is supported by "substantial" evidence if there is any evidence at all to prove the charges - even a scintilla. That's also what "substantial" means to MSPB and labor arbitrators in performance cases where the law requires "substantial evidence" of unacceptable performance. Time and again, employees are told that substantial evidence does -not 'have to be a preponderance of the evidence, meaning that just about any evidence at all is enough to be "substantial." While wondering how the law could be butchered in this way it finally dawned on us: the justices think the ADA is a charity act. Instead of being designed to bring all people with physical and mental impairments into the mainstream of the American work place, it should be reserved for the "truly handicapped" who can be given work counting bolts or stuffing envelopes. The message from the Supreme Court is that if you can see, hear, talk and walk, the ADA does not apply to you.
We have fun every year scanning the new fiscal year funding bills for miscellaneous riders buried in them. Here's a sample of the most interesting provisions stuck into Fiscal Year 2002 funding bills: