October 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 .

Payment for "On Call" Status

One of the most abusive management practices in the federal sector is requiring employees to be "on call" when they are not at work, ready to respond if they are needed to return to work. Whether employees are entitled to be paid while they are "on call" depends on whether this time fits within the legal definition of "hours of work." The courts have been unsympathetic to many employee claims in this area, unless the employee can prove that she was so significantly restricted in her off-duty activities that her personal time actually belonged to the employer. In the recent decision in Huskey v. Trujillo, for example, the Federal Circuit ruled that an employee was not required to be paid for her "on call" time simply because she was required to be available by phone or pager and be able to return to work within 30 minutes of being summoned. Even though this decision did not favor the employee, it contains many references to regulations and case decisions that could be useful in other situations. You can print it off the internet at http://www.fedcir.gov/opinions/02-1022.doc

Safety and Insubordination

In a private sector case, the NLRB ruled in Odyssey Capital Group,170 LRRM 1387 (2002), that employees were protected from discipline when they refused to work due to concern over exposure to airborn asbestos. The NLRB noted that the employees had a valid reason to suspect they were in danger and that they attempted to get the employer to investigate the situation before they decided not to work.

No Liability for Sexual Harassment

The line between rude behavior which does not violate the law and sexual harassment which does violate the law continues to be very thin. In Duncan v. General Motors Corp., 89 FEP Cases 1105 (8th Cir. 2002), the court refused to hold an employer liable for the harassment of a female employee by a male coworker. The male employee proposed a relationship with her, touched her hand 4 or 5 times and joked with her about the attitudes of women towards men. The court said his actions were "boorish, chauvinistic and decidedly immature" but did not amount to sexual harassment.



Protection from Unlawful "Seizure"

The 4 th Amendment protects all citizens, including federal employees, from unjustified 11 seizures" by the government. Most claims under this term involve seizures of personal property. However, in Driebel v. City of Milwaukee, 18 IER Cases 1693 (7th Cir. 2002), the court addressed the "seizure" of a public employee. The employer was conducting an investigation into alleged misconduct by the employee's partner at work. The employee was grabbed, turned around and told to go back to the office to participate in the investigation. The court concluded that the employer might be liable for a 4 th Amendment violation since there was no probable cause to believe the employee did anything wrong.

Asking Employees to Appear in Videotape

The court in Allegheny Ludlum Corp. v. NLRB, '1170 LRRM 0.923 (3rd Cir. 2002), ruled that an employer committed an unfair labor practice by asking employees if they would appear in a video tape to discuss their attitudes about the Union. The court ruled this was inherently coercive, even if the employees were not ordered to participate in the videotape. This same reasoning applies to any situation where employees are asked to give their input or comments about positions that the Union is taking on their behalf.