March 2004



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 website at http://minahan.wld.com.

Information on EEO cases

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.

New Drug Tests?

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.

Child Porn Will Get You Fired

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).

Don't "Kick Ass!"

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).

Failure to Exhaust FLSA Claim

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

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 (10th 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.

Temporary Move As Accommodation

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 (1st 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.

DOD Bill

DOD marches on in its quest to ram a new civilian personnel system down the unions' throats. DOD's initial proposal for that system was issued on February 6, 2004, and was nothing but an insult. It did not even require collective bargaining with an impasse resolution process nor did it require a grievance arbitration process. Perhaps DOD will take a look at the new regulations for the Department of Homeland Security (at www.epa.gov/edocket ). The DHS proposal preserves collective bargaining and also preserves access to the MSPB. Unfortunately, it contains incredible restrictions on bargaining and incredible advantages for the agency on discipline. We can only hope that somebody in Congress takes a look at the kind of one-sided nonsense that is being foisted on DHS and DOD employees.