Minahan and Shapiro, P.C.
Attorneys at Law Daniel Minahan Barrie M. Shapiro
MINAHAN AND SHAPIRO, P.C. Attorneys at Law
165 S. Union Blvd. Suite 366 Lakewood, CO 80228
LAW FIRM NEWS AUGUST 2005
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. We also provide representation to Union members in MSPB appeals, EEO complaints and labor arbitration for reduced or flat fees if there is a chance we can obtain attorneys fees from the agency if we win. Check out our website at http://minahan.wld.com.
No Limit on Backpay Under USERRA
On July 15, 2005, the MSPB issued a favorable, if a little strange, decision on backpay claims under USERRA, the 1994 law that strengthened job protections for veterans and reservists. Lee v. Dept. of Justice. The case grew out of a 2003 court ruling that federal agencies were improperly charging employees military leave for days that were not part of their regular tour of duty. The government argued that the maximum backpay period was the 6 years listed in the Backpay Act, 5 USC 5596. The MSPB disagreed, saying that USERRA itself contains full authority for awards of backpay and other employment benefits and since there is no "statute of limitation" in USERRA, claims can go back as far as the enactment of the law itself in 1994.
When a Hearing is Not a Hearing
The MSPB issued a (more typical) unfavorable ruling in Koehler v. Dept. of Air Force (June 28, 2005). Even though the law states that an employee who appeals to the MSPB has "the right to a hearing for which a transcript will be kept" the MSPB ruled that neither an in-person hearing nor a transcript is required. A videoconference hearing may be held even, if the employee objects, and a "transcript" of the hearing will be nothing more than the videotape. The MSPB recognized that when the Civil Service Reform Act of 1978 was passed, a "hearing" meant only an in-person hearing but it said that technological advances no longer require such a hearing. The most astounding statement in the decision is the MSPB’s protest that "an unlimited right to an in-person hearing not only infringes on judicial efficiency, economy, and discretion, but unduly expands the statutory right of appellants." What does the "unexpanded" right to a hearing require? A conference call? "Instant messaging" on the internet? Morse code? It is inconceivable that any fair-minded person could believe that a "hearing" with the lawyers, the witnesses, the appellant and the judge in multiple locations all staring at a fixed video image could be regarded as the equivalent of a live hearing. How do you know the witness isn’t reading from a teleprompter? How do you know if the judge is asleep or even in the room? We are fast approaching the day when "due process" will be required only if it is convenient.
Unlawful Personality Test
In an interesting decision by the Seventh Circuit, the court ruled that the MMPI, a widely used personality test sometimes administered to candidates for a job or a promotion violates the Americans with Disabilities Act. Karraker v. Rent-A-Center, Inc., 16 AD Cases 1441 (7th Cir. 2005). The court found that, in practice, the MMPI excludes employees with mental health disorders since they usually score in a different range than those without mental health disorders.
Watch This One
The U.S. Supreme Court has agreed to review a decision by the Nineth Circuit which ruled that a federal employee could not file a constitutional claim in federal court when he had the option of raising that claim under the grievance procedure of the labor contract. The ruling which will be reviewed is Whitman v. Dept. of Transportation, 382 F. 3d 938 (9th Cir. 2004). The employee filed a lawsuit alleging that he was subjected to random drug testing at a rate three times higher than other employees because of his First Amendment activities. Ever since the passage of the Civil Service Reform Act in 1978, the Supreme Court and the lower courts have been dismissing federal employee lawsuits on the basis that federal employees are limited to whatever administrative remedies Congress provided. The Whitman case may at long last draw the line and hold open the door for federal employees to file constitutional claims in federal court.
Bargaining Over Salary Information
The D.C. Circuit once again reversed an FLRA ruling which had limited the bargaining rights of federal unions in NFFE Local 951 v. FLRA, 177 LRRM 2583 (D.C. Cir. 2005). The union was negotiating with the Department of Interior over a survey to be conducted among agency rangers to see if they were eligible for a salary premium. The union proposed that the agency provide the survey documents in connection with each survey. The FLRA ruled this proposal interfered with the agency’s right to assign work. The D.C. Circuit basically said this was ridiculous and sent the case back to FLRA for the FLRA to issue an order requiring negotiations.
Accommodation for Employee "Regarded As" Disabled?
Ever since the passage of the ADA, the courts have wrestled with the rights of employees who are not actually disabled but who are "regarded as" disabled. In Kelly v. Metallics West, Inc., 16 AD Cases 1538 (10th Cir. 2005), the court dealt with the case of an employer which refused to provide a supplemental oxygen device to an employee after she returned from sick leave due to a lung disorder. The court noted that the employee was not really disabled and could perform her job without the supplemental oxygen device but the employer regarded her as disabled since it would not allow her to perform any kind of work without this device. The 10th Circuit concluded "an employer that is unwilling to shed stereotypical assumptions based on a faulty perception of an employee’s abilities should have to accommodate the artificial limitations created by such perception."
Firing of Union Rep for Tape Recorder was Unlawful
In NLRB v. Rockline Industries, Inc., 177 LRRM 2577 (8th Cir. 2005), the appeals court ordered a company to reinstate a union representative who had been fired for violating a company rule against having a tape recorder at work. The court pointed out that another employee who was discovered to have a tape recorder was not even disciplined and ruled that the union representative had been fired because of his support for the union. As simple as this seems it is a conclusion that many judges and arbitrators cannot understand. For the simple-minded, an employee who violates a work rule that was known to the employee and that was known to be grounds for discharge has been fired for violating the work rule, not for his race, national origin, union activity or anything else protected by the law. For those who understand why the law was enacted in the first place, the question is not whether the employee could be fired for what he did but whether he would have been fired for what he did if he were not a union supporter.