MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

The EEOC on January 26, 2004, issued regulations to implement the "No FEAR" Act, which stands for Notification and Federal Employee Anti-discrimination and Retaliation Act. The law and the EEOC regulations require each federal agency to post on the home page of its web site information about EEO complaints filed against that Agency. This includes such items as the number of EEO cases filed, the status or disposition of each case and the amount of money spent by the Agency on each case.

The HHS is considering adding tests for saliva, sweat and hair to the urine tests it already allows. The use of hair sampling, in particular, would allow the Agency to determine drug usage much further in the past than urine testing allows. There is considerable controversy over whether tests like this are accurate so HHS has not yet decided whether to issue proposed regulations.

An arbitrator in a private sector case upheld the termination of an employee who spent most of his workday viewing young girls on the employer's computer system. The arbitrator rejected the union's argument that a lesser punishment was in order, because it was evident that the employee deliberately chose the questionable websites and stayed on them for hours. Excel Energy, 119 LA 26 (Daly, 2004).

Another case arising out of the private sector involved a union representative who threatened to kick a co-worker's ass. The NLRB found this was a form of union activity but that the activity was too threatening to condone. The NLRB agreed with the employer that the threat of violence seemed real to everyone who was there. Town and Country Super Markets, 174 LRRM 1001 (2004).

Federal employees who wish to sue the federal government for unpaid overtime or for mistakes in excluding them from the FLSA have the right to do so in Federal District Court. In Rosell v. Wood, 42 GERR, 66 (DC Cir. 2003), however, the court dismissed a lawsuit by a number of such federal employees on the basis that they did not exhaust their administrative remedies. Specifically, the court expected them to present their claims in the grievance process and to get a ruling on those claims before coming to court.

The "Adverse Action Doctrine" marches on. This is the doctrine which was invented less than 10 years ago for EEO cases in which the courts will dismiss an EEO case unless it involves some major change to the employee's working conditions. In Tran v. Trustees of the State Colleges of Colorado, 93 FEP Cases 137 (10^th Cir. 2004), a college employee was reassigned to a new job without loss of pay or benefits after she complained of sexual harassment. The court decided that this was not a significant enough change in her working conditions to amount to an "adverse action" and dismissed her lawsuit.

In an interesting decision, an employee suffering from major depression requested the accommodation of a temporary transfer to another office. Calero-Cerezo v. US Dept. of Justice, 15 AD Cases 129 (1^st Cir. 2004). The employee's doctor said this would help her depression go into remission and the court noted that it would not cause an undue hardship on the employer. This is worth remembering, since many courts who might reject a permanent reassignment as unreasonable might also accept a temporary reassignment as reasonable.