January 2003

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.

Homeland Security Legislation

After the November mid-term elections, Congress passed the Homeland Security Act, Public Law 107296. It will result in the transfer of over 100,000 federal employees, many of them from the Customs Service and INS, to the new Department of Homeland Security (DHS). There are a number of provisions of interest to our clients. Section 1313 adds a new 5 USC 3521, to permanently authorize VERA and VSIP payments. Each agency must request authority from OPM to offer separation incentives and unions should be sure to protect their rights to bargain with agencies concerning these issues. Section 841 adds a new chapter 97 to Title 5 of the U.S. Code for the Department of Homeland Security (DHS). It requires the creation of a new personnel system for DHS employees but it requires that system to ensure that employees may organize and bargain collectively. It requires the establishment of an appeals system after consultations with MSPB and requires this system to be consistent with the requirements of due process and to modify the procedures in 5 USC Chapter 77 (the MSPB laws) "only insofar as such modifications are designed to further the fair, efficient and expeditious resolution of matters involving the employees of the Department." Section 842 instructs the president not to exclude DHS employees from 5 USC Chapter 71 (the labor relations laws) unless they are primarily involved in intelligence work. Section 883 says that DHS employees remain covered by all the EEO laws for federal employees and by the whistleblower protection laws.

You Can't Prove What You Don't Allege

The Federal Circuit issued a helpful decision in OKeefe v. U.S. Postal Service, 19 IER Cases 472 (Fed. Cir. 2002) involving yet another Postal employee who got a proposal letter containing vague accusations. The employee was accused of using the personal information of a co-worker to help another coworker get a mortgage loan. During the hearing, the Postal Service put on all sorts of evidence, but the Court faulted the Postal Service for not including this evidence in the proposal letter. For example the MSPB found that the employee himself filled out the mortgage application, but the proposal letter did not allege this. The MSPB found that the employee improperly used the maiden name of his co-worker's mother on the loan, but the proposal letter did not allege this. By accusing the employee of specific misdeeds that were not in the proposal letter, the court found that the Postal Service violated the employee's due process rights. The case also contains a great footnote (footnote 2) about the weight to be given to hearsay "summaries" by agency investigators. It notes that the summaries were prepared months after the interviews with the witnesses and were not accompanied by the witnesses' own statements and that they were therefore "of questionable value."

Priority Consideration

Some settlement agreements require that an employee receive "priority consideration" for future promotional opportunities. Although these settlements aren't worth much, they are at least worth something. In Pope v. Federal Communications Commission, decided by the Federal Circuit on November 27, 2002, the court reversed a decision of the MSPB which found that FCC had complied with a settlement agreement granting priority consideration. The employee had simply been referred for consideration with all the other qualified applicants and rejected. The court said this was not "priority consideration" and that this term requires a prior non-competitive referral to the selecting official, bona fide consideration of the employee's qualifications by the selecting official and a decision to select or not select before any other candidates are considered.

Settlements Aren't Forever

Another case involving a settlement raises the question of whether a position offered in a settlement agreement must exist forever. In U.S. Steel Corp., 117 LA 1113 (Das, 2002), the employer established 2 jobs in 1994 in settlement of a grievance. When the jobs were eliminated in 1998 the union filed a grievance alleging a violation of the settlement. The arbitrator ruled that the settlement did not require the employer to maintain the jobs forever and that the jobs could be eliminated the same as other jobs in the normal course of business "downsizing." This raises another question we'd like to see answered someday: how about "full time" positions for the union established under a labor contract? What if management eliminates one of those positions? What if they say they are not eliminating a union full-time position but they are simply eliminating one of the jobs held by one of the union full-timers? Hmmm.

Timely EEO Complaint by Notification to Supervisors

A federal court in Washington, D.C. has ruled that a Labor Department employee's complaint of sexual harassment was timely even though she did not contact an EEO counselor until nearly a year after the harassment. The employee notified two supervisors of the harassment within 45 days so the court found this was timely notification to the agency of the EEO complaint. Lloyd v. Chao, 40 GERR 1198 (D.D.C. 2002).

No Emotional Distress Damages for Age Discrimination

The Tenth Circuit reversed a jury award of compensatory damages for a federal employee claiming age discrimination. The employee proved that he had been subjected to retaliation for filing a complaint of age discrimination. However, since the Age Discrimination in Employment Act (unlike the other EEO laws) contains no provision for compensatory damages, the court determined that such an award to the employee was not allowed by law. Villescas v. Abraham, 40 GERR 1191 (1 oth Cir. 2002).

Unlawful Medical Examination

The EEOC issued an important reminder that the ADA's restrictions on medical examinations and medical records apply to all employees, not just disabled employees. Clark v. U.S. Postal Service, issued on November 20, 2001, involved an employee who was taking notes on co-workers and causing friction in the workplace. The agency thought he was paranoid and sent him for a fitness for duty exam. The agency later placed the results of that exam into the employee's official personnel folder. The EEOC ruled that the medical exam was not job-related and consistent with business necessity and that the exam records should not have been included in the employee's personnel file. The employee was awarded $2,000 in emotional distress damages.

Dollar Value of Compensatory Time

A couple of clients recently asked what happens if an employee earns compensatory time and doesn't use it and later wants to be paid for it. According to 5 CFR 550.114, agencies can establish [meaning, of course, that unions can also bargain over it] deadlines by which employees have to use compensatory time. If an employee resigns, for example, before the deadline, the regulation says that unused compensatory time is paid to the employee at the overtime rate. What if an employee initially elected compensatory time and later changes his mind and wants the cash for the overtime? Our opinion is that FLSA nonexempt employees (basically, WG employees) have the right to do this, but we've never seen a ruling on this point.