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 .

Overtime Pay for Title 5 Employees

The Fair Labor Standards Act (FLSA) requires overtime pay for overtime work so long as the supervisor is aware of the work and condones it. Most professionals and employees at higher pay grades, however, are FLSA exempt (not covered by the FLSA). For these employees, the sole entitlement to overtime is in 5 USC 5542 ("Title 5 overtime"). Title 5 overtime must be "officially ordered or approved" which leads many agencies to deny overtime even if the employee worked the overtime with the supervisor's knowledge, just because the right forms and authorizations were not obtained. A recent ruling from the Court of Federal Claims on a lawsuit filed by Department of Justice attorneys loosens up the "officially ordered or approved" requirement. The attorneys argued that the agency was well aware that they could not accomplish their work on a regular basis unless they routinely worked extra hours. The court found that overtime for these employees had been "officially ordered or approved" because their supervisors not only knew they were working overtime but expected them to do so and used their overtime record as a basis for evaluations, promotions and awards. Doe v. United States, 54 Fed. Cl. 404 (2002).

Information about Contracting Out

An Administrative Law Judge of the FLRA issued a decision in favor of a Union involving a data request for information on contracting out. After the contract was awarded the Union sought and obtained from management the performance work statement and the most efficient organization plan. However, the Agency refused to provide the technical performance plan that contained a detailed breakdown of the estimated costs for all the tasks needed to meet the proposed contract requirements. The ALJ found this to be an unfair labor practice. Air Force Academy, FLRA No. DE-CA-01-0779 (November 20,2002).

Justification for Official Time

An arbitrator issued a ruling in favor of a Union that challenged requirements imposed on the local president to justify his use of official time. Management required the president to state the location of his meeting, the purpose of the meeting, with whom he was meeting and what the meeting was about. The arbitrator prohibited management from requiring the president to say any more than where the meeting would be held. US Border Patrol, 117 L.A. 1252 (Massey, 2002).

New Case for Employee Means New Case for Agency

On January 6, 2003, the Tenth Circuit issued a decision in Timmons v. White, No. 027016. The case involved a federal employee who won an EEO complaint in a hearing before the EEOC and then filed in court solely because he considered the remedy provided by the EEOC to be inadequate. The employee argued that the government was bound by the EEOC finding of liability and that nothing remained to be determined except the adequacy of the remedy. The Tenth Circuit disagreed, saying that the EEO statutes provide for a "de novo" hearing in federal court after the administrative processing of an EEO complaint is finished. The Tenth Circuit said this gives federal courts no choice but to allow not only the employee but the agency the right to try the case "from the ground up." The Tenth Circuit recognized in its decision that it was disagreeing with decisions by other courts on this same issue. We think the comments of a judge in one of these other cases makes much more sense than the Tenth Circuit's hyper-technical reading of the law"The government can not be at war with itself. In other words, it cannot in its EEOC form say that the employee may go forward, while in its IRS form it says it may not. Once the EEOC determined that Girard was entitled to pursue his discrimination claim the IRS was not entitled to ask the District Court to hold otherwise." Williams v. Herman, 129 F. Supp. 2d 1281 (E.D. Calif. 2001). This issue-whether successful EEO complainants can bring their cases into court on the remedy issue only-will probably have to be resolved by the Supreme Court some day.

Timeliness of Sexual HarassmentComplaint

For another frustrating example of how different courts can decide the same legal question different ways, take a look at some recent decisions involving whether EEO complaints of sexual harassment were timely. In Lloyd v. Chao, 40 GERR 1198 (D. D. C. 2002) a District Court 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, on the basis that she told 2 supervisors about the harassment within 45 days. Another federal employee, different court, different result in Johnson v. Henderson, 90 FEP Cases 829 (9th Cir. 2002). This federal employee did not speak to a counselor within 45 days after the sexual harassment, even though she did report the harassment to a supervisor during that time. Her complaint was dismissed as untimely! For a different wrinkle involving another federal employee see, Jensen v. Henderson, 90 FEP Cases 898 (8th Cir. 2002). This employee did not contact a counselor within 45 days of the sexual harassment but her complaint was ruled to be timely because the federal agency's failure to redress the situation created a hostile environment within the, 45 day period. The legal rule is clear: your complaint of sexual harassment will be timely or untimely depending on how your particular court feels about it that day.

EEO Discrimination and Discipline

Can you believe it? The MSPB actually found discrimination in connection with a decision to fire a female employee! Spahn v. Dept. of Justice, decided on January 9, 2003, involved a woman fired for failure to cooperate in an official investigation and conduct unbecoming an agency employee (a relationship with a fellow employee). The agency fired 5 other employees, all men, for similar misconduct. After the terminations, the agency reached settlement agreements with the male employees which reinstated them with 14-day suspensions. The Agency refused to settle with the female employee. The MSPB ruled that it did not matter whether the other employees were charged with exactly the same offense and that the MSPB was not prevented from examining what happened to the male employees simply because they reached a settlement agreement. The MSPB concluded that the female employee made out a prima facie case of sex discrimination and that the Agency's explanation for treating the male employees differently was unworthy of belief. It therefore ruled that sex discrimination was proven and ordered the female employee returned to work with the same 14 day suspension the male employees received.

Proof of Discrimination: Phony Rating Categories

The Tenth Circuit issued an interesting decision in Juarez v. ACS, Inc., 90 FEP Cases 1104 (1 0th Cir. 2003). Even though the case involved a reduction in force, it may be useful in other cases involving competitive selections for promotions. The employer defended its decision to lay off an Hispanic employee by saying that it used 6 rating criteria against which each employee was rated for retention and the Hispanic employee just happened to score the lowest. It turns out that the personnel office gave the supervisor 8 rating categories and the supervisor chose to use only 6, intentionally excluding the categories of tenure and past performance, which would have benefitted the Hispanic employee.

Disability Discrimination Cases

In Stalter v. Board of Education, 41 GERR 15 (S.D.N.Y. 2002) the Court found that a janitor with cerebral palsy was disabled under the ADA even though he used remedial devices and techniques to communicate with others. The Court found that even though he was able to communicate he was still significantly limited in his ability to speak.

Sometimes an employee who might not meet the definition of a person with a disability under the Supreme Court's idiotic decisions will still be covered by the ADA if he is regarded as a person with a disability. Webber v. International Paper Co., 13 AD Cases 1622 (D.Me. 2002) involved an employee with a knee injury. The employer argued that despite this injury he could still walk. The Court observed that after the employee injured his knee, the employer installed a lift chair, rearranged his work schedule, and relocated his office. According to the Court, this shows that the employer regarded the employee as substantially limited in his ability to walk.