August 2002

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 .

Record Retention Rules

What if you request information from management to help you represent an employee in a grievance or an EEO Complaint and management says they don't have it anymore? If this violates a government wide policy on record retention, you may be able to convince an arbitrator or the EEOC to impose a sanction on management, such as a finding in favor of the employee or a finding that the records would have proven a particular point helpful to the employee. The EEOC has a regulation that requires employers to preserve all personnel records relevant to a complaint of discrimination until final disposition of the complaint. 29 CFR 1602.14. OPM has a regulation requiring federal agencies to maintain all records connected with a promotion action for at least two years. 5 CFR 335.103(b)(5). The "granddaddy" of all record retention regulations is issued by the National Archives and Records Administration. The current schedule, issued in December, 1998, can be found at http://ardor.nara.gov/grs/grsol.html . The record retention rules on this website apply to every conceivable personnel record, including training, medical, discipline, promotions, performance, workers compensation, etc. Some records have to be retained for seven years or more. We strongly recommend that Union representatives consult this web site whenever they are told that particular employee records they have requested cannot be found.

Submitting to Threats is "Tangible Employment Action"

In sexual harassment cases, proof that harassment resulted in a tangible employment action makes a big difference. If a tangible employment action is connected to the sexual harassment then the employer is automatically liable for damages to the employee. If no tangible employment action occurred, then the employer may escape liability if it proves that it had a procedure for harassment complaints and the employee unreasonably failed to take advantage of that procedure. I n Jin v. Metropolitan Life Insurance Company, 85 FEP Cases 319 (2nd Cir. 2002), the employer argued that no tangible employment action resulted from the sexual harassment because the employee did not quit nor was she fired. The court disagreed, saying that the supervisor's threat to fire the employee if she refused to put up with his sexual abuse was enough. Her decision to retain her employment under those circumstances amounted to a "tangible employment action" and so the employer was automatically liable for the harassment.

Protection for Former Drug Addict

The Americans with Disabilities Act does not protect employees from discrimination if they are currently dependent on drugs. It does, however, protect former drug addicts from discrimination because of their former addiction. This was illustrated recently in Hernandez v. Hughes Missle Systems, 13 AD Cases 198 (9th Cir. 2002). The employer in that case refused to rehire a former employee who had left employment because of a positive drug test. The employer's defense was that it had a policy against rehiring former employees who were discharged for misconduct. The court ruled that the employee had engaged in misconduct only because of a drug addiction and that since the employee had successfully completed rehabilitation, he could not be refused employment solely because he was once an addict.

Remedy for Discriminatory Refusal to Hire Even if Employee was Ineligible

The Seventh Circuit issued an interesting decision in ONeal v. New Albany, 40 GERR 650 (7th Cir. 2002). The case involved a black applicant who was not considered for a position as a police officer because of his race. Later, in defending the lawsuit, the employer found out that the applicant was over the state's maximum hiring age and could not have been hired anyway. The court said this affected only the remedy and did not mean he had no case. Specifically, even if he could not obtain a police officer position as a remedy in the lawsuit, he could still be compensated for the damages associated with being subjected to discrimination and for the expenses associated with applying for the job.

Can a Lawsuit Against a Union be a ULP?

In a recent private sector decision, the Supreme Court considered whether an employer that sues a Union can be guilty of an unfair labor practice. BE & K Construction Company v. NLRB, 170 LRRM 2225 (2002). The company in that case filed a lawsuit against the Union because the Union was picketing the company. The lawsuit was dismissed and the Union then filed a ULP charge. The NLRB ruled that the dismissal of the lawsuit was enough in itself to demonstrate that the employer had committed an unfair labor practice. The Supreme Court disagreed. According to the Supreme Court, it is not an unfair labor practice for an employer to file a lawsuit against a Union even if the impetus for the lawsuit is the Union's protected activity. For an unfair labor practice to occur, said the Court, requires not only dismissal of the lawsuit but proof that the lawsuit did not present any genuine factual issues or had no reasonable basis.