MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

Our law firm is always looking for meritorious cases. If we represent the employee directly, it can be a training opportunity for the Union steward who helps us and a "learning experience" for management if we win and they have to pay our attorney's fees. The law allows attorney's fees to employees who win backpay cases, adverse action cases (demotion, removal) and EEO cases. If you would like us to consider direct representation of one of your members, just give us a call and tell us about the case.

Dan obtained a favorable result from Arbitrator Gary Axon in a grievance arising at Tooele Army Depot, Utah. The grievance involved a security guard who was "temporarily" disqualified from holding his security clearance. This resulted in his being assigned to lower paying work for almost 4 years! After his security clearance was finally reinstated, he filed a grievance seeking backpay. The Arbitrator agreed with the Union that the delay in reinstating his clearance was arbitrary, capricious and an unjustified personnel action. The Arbitrator ordered the Agency to make the grievant whole for all salary and overtime he lost during this period.

Dan was fortunate to obtain another favorable decision in arbitration on a grievance concerning the discharge of one of the Union's representatives from employment for allegedly poor performance. The representative worked as a fire fighter at Hill Air Force Base, Utah. He was put on a performance improvement period (PIP) and told he must pass a written examination for "first responders" and also a practical examination for first responders. The employee passed the written examination but did not pass the practical skills examination. The firefighters who administered that portion of the exam testified that the grievant might have been nervous and might do better on a retry. They also testified that it was normal to allow fire fighters to retake an exam. The fire chief, however, refused to allow a retest and the employee was fired. Following a hearing, Arbitrator Thomas Angelo ruled that Hill Air Force Base violated the law in firing this employee. He noted that the employee did not receive a good faith opportunity to improve when he was denied a second chance to take the practical exam. He also specifically found that this was the direct result of anti-union hostility. It didn't help management when the fire chief was asked about relations between the fire department and the union and he responded that they had been awful until about 10 months ago. (The grievant was fired exactly 10 months before the hearing!)

Political Activity

We hope that all clients received our e-mail message on political activity early in December. Anyone who did not receive it is welcome to call and we will send it again. The attachment to the e-mail was a chart showing all the political activity in which a federal employee can engage since Hatch Act reform was passed in the mid 1990's. Most importantly, federal employees can campaign for or against candidates in partisan elections. You know by now that unless a Democratic president is elected next fall, the rest of the federal work force is likely to be contracted out, and those who remain will be stripped of even the most basic workplace rights.

We have received a number of calls from clients on HIPAA, which stands for the Health Insurance Portability and Accountability Act of 1996. This is one more law that, like the Privacy Act, protects personal records. However, it is limited to medical records. The law covers all health care providers. This would cover the VA. It's unclear whether it would cover the dispensary on an air force base. The law applies to all health information about an individual. An entity covered by HIPAA must have the person's written consent before disclosing health information to anyone. The law also provides that individuals have the right to get copies of their health records. The law allows the Department of Health and Human Services to impose civil penalties of up to $100 for each violation. The regulations applying the law can be found at 45 CFR Parts 160 and 164.

Damage to Computers – Remedy for Employees

Our obscure statute of the month is 18 USC 1030. This is a federal criminal statute which deals with the use and misuse of government computers. One of the prohibitions in the statute deals with those who intentionally and without authorization access a government computer and adversely affect the use or operation of that computer. Section (g) of the law says that any person who suffers damage or loss because of a violation of this statute may file a lawsuit against the violator for compensatory damages and other relief. Such a claim must be brought within 2 years of the date of the act complained of.

The EEOC issued a couple of additional decisions dealing with medical records under the ADA:

• In Higgins v. Dept. of the Air Force, EEOC No. 01A13571 (2003), the EEOC found the Air Force guilty of a violation of the ADA when a former supervisor transferred to a new supervisor a work folder on the employee referring to "work related stress." The EEOC reminded the Air Force that there are no exceptions to the requirement that information pertaining to medical history must be maintained in a separate and confidential medical file.
• In Chamblis v. Social Security Administration, EEOC No. 01A21179 (2003), the complainant was asked to stand up in a staff meeting and explain that she was going to the hospital due to her bi-polar disorder. When the complainant was released from the hospital, her manager asked her for a doctor's note stating that she was neither homicidal nor suicidal. The EEOC determined that these actions violated the ADA's prohibition on disability related inquiries which have no connection with business necessity. The EEOC ordered the agency to conduct ADA training for all management officials.

• In United Services Auto Association, 173 LRRM 1331 (2003), a union representative came to work after hours and distributed pro-union fliers on her coworkers' desks. When she was asked whether she had passed out the fliers, she lied to protect herself from retaliation. She was then fired for lying about whether she was the one who passed out the fliers. The NLRB ordered her reinstated with backpay. It found there was no clear policy against entering the building after hours and that the purpose of the employer's questioning was to identify who had distributed the flyers rather than to address any concerns about safety or security. The NLRB found that the employer's questioning of the employee violated her union rights and she could not be fired for her answer.
• The FLRA confronted a situation where a union representative had been suspended for 2 days for abusive and offensive language in Defense Contract Management Agency 59 FLRA No. 34 (2003). The union representative was summoned to a meeting, at which he was accused of misrepresenting his authority to investigate workplace concerns. The representative became loud and angry, calling the management official a liar and threatening to sue her. The Authority ruled that the union representative's behavior was protected by law and did not amount to "flagrant misconduct." The Authority emphasized that the representative's behavior was impulsive rather than calculated.