Union negotiated grievances are often an issue, especially at the local level. The first objective of agency LMR/ELR representatives and consultants to senior level executives, upon receiving a grievance is to identify the actual claim.
FAQ: Grievance Timeliness
I am a union steward. Recently, a member brought an issue to my attention. The issue date is far outside the 30 days our contract provides.
Proving Delivery
In Morgan v. Department of Veterans Affairs, 108 LRP 7740 , EEOC No. 0120080380 (EEOC OFO 2008), a tracking slip showing a notice of right to file was left at a complainant’s doorstep. However, it was not conclusive evidence the complainant actually received the notice on that day.
Can a Union Negotiate Performance Awards?
In general, awards in the federal service are not considered an entitlement. That statement is the prevailing guiding principle. However, in 1997 the Office of Personnel Management (OPM) issued significant rules deregulating performance management systems and related awards.
FAQ: Should I Resign?
“Last week they [federal agency] decided to fire me. Should I just resign? If I resign, what will show in my OPF?”
Support of BLM Movement in Workplace Permitted- OSC
The guidance places the Office of Special Counsel at odds with the White House concerning the official government view of BLM.
FAQ: MSPB or Arbitration?
Many practitioners, both union and agency, will cite MSPB management (agency) favorability statistics indicating MSPB favors the agency in outcomes. This is true, but somewhat skewed because most labor organizations will 1) send “bad cases” (those lacking merit) to the MSPB because there are no associated costs unlike arbitration and/or 2) send cases to MSPB because they lack funds to pay for arbitration.
How We Evaluate Cases
While many situations may in fact be “adverse” or otherwise objectionable to the employee from their perspective, not all situations and appeals will result in an outcome favorable to the employee.
Termination of Telework Authorized Due to COVID-19
Significant confusion exists across the federal workforce concerning telework authorized as a result of the COVID-19 pandemic and national emergency and subsequent social distancing efforts. As agencies begin recalling workers, we are experiencing an increase in calls concerning telework in the context of the pandemic.
New Mediation & Settlement Service Announcement
Employees engaged in pro se administrative litigation (for example, EEOC complaints or MSPB appeals) often just seek assistance during specific components of a process in an effort to save money.
Changes to EEOC Pre-Hearing Procedures
The new trend, which appears to have emerged from “pilot program” status, seeks to streamline case processing in connection with EEOC pre-hearing procedures.
Responding to Proposed Suspensions
Employees facing discipline must be responsive to the agency notice. It is important affected employees act quickly and immediately begin preparing a reply as appropriate. Even if an employee does not intend to challenge the proposed action, an employee may effectively mitigate the proposed action to a lesser degree or achieve an alternative outcome.
MSPB: No Absolute Right to Counsel
Recently, a Federal employee argued the Merit Systems Protection Board (MSPB) “abused its discretion” by failing to appoint (and pay for) an attorney to represent her.
Union Officials and Worker’s Comp
Federal union officials engaged in authorized (by agency) representational activities are covered by the Federal Employees Compensation Act (FECA). However, union representatives engaged in the internal business of a labor organization or not on authorized time are not covered.
An Unpleasant Work Environment is not Unlawful
An unpleasant work environment is not the same as a hostile work environment (HWE) within the meaning and application of actionable discrimination law and concepts.
Timeliness in Federal Discipline
Question “Can a disciplinary (suspension w/out pay of 14 calendar days or less) or adverse (suspension w/out pay of 15 calendar days or more, demotion, or removal) action be challenged for timeliness if the employee has been on administrative duty…
MSPB Judge’s Handbook
Merit Systems Protection Board (MSPB) Judge’s Handbook and Guidance applicable to federal employees and advocates.
Whistleblowing
Whistleblowing involves disclosure of information an employee or applicant reasonably believes evidences a violation of law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety.
Yet Another EEO Process Chart
One of the most common questions we receive concerns the Federal Equal Employment Opportunity (EEO) complaint process. Yes, without question, the process can be confusing to the uninitiated. This is why there are numerous published EEO complaint process charts.
“In Lieu Of” Removal
Federal employees faced with removal possess the ability to resign prior to the effective date of the removal action. Employees otherwise eligible for retirement maintain the ability to retire prior to and after the effective date of removal.
Probationary Employee? Maybe Not.
Consultants from InformedFed experienced an increase in the number of cases in which a federal employee receives notice of probationary period termination, but is in fact not an employee on probation.
Constructive Suspensions
An employee’s voluntary absence from duty is never appealable. In all instances of forced leave status (“enforced leave”) resulting in either 1) loss of pay for 14 days or less or 2) “loss” of leave of 14 days or less OR the placement of the employee into a status that….
Overtime in the Federal Sector
Overtime is considered an assignment of work and thus a management right at Title 5 USC § 7106. However, procedures for distributing overtime have generally been determined to be negotiable as are appropriate arrangements for affected employees.
Resignation and Crime Provisions
You can resign from your position in federal service at any time; you do not need agency approval to do this and you do not need the agency to “grant” you a resignation. However, you would not want to “request removal” because in essence, you are asking to be removed (fired).
Performance Standards & Plans
Performance standards and plans are convoluted by years of wrongly held preconceptions by all parties, layers of agency regulations, collective bargaining terms, statutory law, federal regulations, and a body of seemingly confusing and contradictory case law.
Mixed Case or Mixed Appeal
The world of federal employee labor relations, like other similar fields of practice, is incredibly nuanced. Many times, we are asked the difference in such nuances and mixed cases and appeal definitions are constant questions.
Latest Client Testimonial
In retrospect, stating the complaint and appeal on the front end turned out to be 99% of wining the case on the back end.
Federal EEO Complaint Process
Clarifying the EEO Process in Federal Sector During the past two years, we noticed many federal agencies deviating from a clearly defined, though not stringent, EEO complaint process (see, EEOC MD-110). It is important to realize federal agencies control the…
FAQ: Ward Violations
A Ward violation (Ward v. USPS, 111 FMSR 183 (Fed. Cir. 02/17/11) occurs when a deciding official considers information not previously noticed to the employee via the proposal notice.
Performance Appraisals: Mid-Year Reviews
Performance evaluations, also called performance appraisals, performance ratings, and performance management, can be controversial for a number of reasons.
Check Your OPF
Every federal employee should make time to check their Official Personnel Folder (OPF) at least once a year.
When to Contact a Consultant
“When should I contact a consultant? Should I wait until the Agency proposes an action or makes a decision?” Also, “Will my union pay associated fees or help me in any other way?”
When to Settle an EEO Claim
An EEO Complaint may be settled at any time during the entire process from Informal Counseling (precomplaint stage) to EEOC Hearing. Many Complaints are settled between the formal complaint and the Final Agency Decision (Hadley).
No Right to Authorized Absence Unless…
Administrative leave (also referred to as “excused absence”) is an administratively authorized absence from duty without loss of pay or charge to leave.
Why is the EEO System So One-Sided?
I was thinking about filing an Equal Employment Opportunity (EEO) complaint but did some research and found that less than 3% of people who file actually win. Why is this system so one sided?
What is MSPB e-File?
The Merit Systems Protection Board (MSPB) e-file, also known as “e-Appeal” or “e-appeal online,” is an electronic method of filing your initial MSPB appeal, Pleadings, Addendum’s, as well as checking your existing case status.
Opportunity for Discovery
We will introduce employees to the general concept of discovery in both MSPB (adverse actions including removal, demotion, etc.) and EEOC (EEO complaints) proceedings and encourage the employee who may be self-representing (Pro Se) to engage the process.
Due Process in Federal Service
The false belief, almost legendary at this point, that “you can’t fire a federal employee” is absolutely absurd. This Merit Systems Protection Board (MSPB) report supports our view.
Performance Appraisals for Federal Employees
Supervisors have broad discretion in arriving at your end of year rating. If anyone else tells you different, they are lying to you or simply lack basic knowledge in federal personnel law.
Retroactive Application of VLTP
Some confusion often arises concerning leave acquired through the Voluntary Leave Transfer Program (VLTP).
Federal EEO Claims and Basis
As we discussed in many other articles and tell our clients in every initial briefing concerning EEO complaints, EEO complaints are unknowingly won or lost on initial contact with an EEO Counselor (informal stage).
The “Agency File” MSPB Schedule 752
This article is intended to introduce the concept and purpose of an “Agency File” subsequent to a Merit Systems Protection Board Acknowledgement Order (AO).
EEO Report of Investigation
The importance of a quality ROI product cannot be overstated. The ROI will be heavily relied upon by agency attorneys to determine if settlement is appropriate. EEOC judges will rely on the ROI as the official record of the case in arriving at their decision.
Excused Absences for Inclement Weather
With the recent outbreak of severe weather, we received many inquiries from federal employees concerning Excused Absence (also called “Authorized Absence” and even “Administrative Leave” by some agencies).
Social Media in Fed Workspace
Facebook, Twitter, Instagram, Snap Chat, and a host of other social media tools are increasingly becoming a topic of conversation and disciplinary assessment in many Employee and Labor Relations sections.
Leveraging the EEO Process
Successful EEO complaints can be based on subtle actions over a period of time and on a myriad of basis such as age, retaliation, color
E-Mail Monitoring at Work
It would not be easy to determine if an agency or supervisor is monitoring your e-mail account.
Operational Status Notification
InformedFED has recently been flooded with robocalls. This has impacted the efficiency of our phone systems. Accordingly, we have implemented countermeasures including automated answering, screening, and routing of calls made to our main number at (202) 642-1287. We continue to…
What Are Crime Provisions?
Office of Personnel Management regulations permit agencies to place employees on indefinite suspension pending completion of criminal proceedings.
SF 50 Codes (Nature of Action & Legal Authority)
While it is true we could not have come up with a more boring title for this article, we frequently field questions concerning the SF-50 Notification of Personnel Action, and more specifically, the enigmatic Nature of Action and Legal Authority…
Leveraging the Federal Employment EEO Process
Although there is never a guarantee of success in filing and EEO complaint, a consultant can tip the odds in your favor dramatically.
E-Mail Monitoring at Work
Most agencies have in place redundant safeguards to prevent unauthorized surveillance of employee e-mail accounts. Typically, approval must be obtained from a division head and then IT approval, and finally, HQ approval.
Role of ELR Specialists
The primary role of an agency ELR Specialist is to provide expert consultative and transactional services to agency supervisors, managers, and executives concerning federal sector employee and labor relations. Sometimes, these specialists are even further sub-categorized as to specialties.
Consulting Questions
These questions are our most frequently asked concerning consulting services for federal employees. Though we try to provide as much information as possible, you may have a question not included here. Please feel free to contact us.
What Your Union Doesn’t Know Can Hurt You
The representation of federal employees in discipline and adverse actions is complicated. In our experience, most local labor unions are not technically prepared to provide such representation to safeguard an employee’s career and future financial security.
Reasonable Accommodation & Unexpected Consequences
Federal employees often make decisions based on significant misunderstandings concerning personnel processes. In some cases, this can lead to disastrous outcomes.
Change of Supervisor
The Federal Services Labor Management Relations Statute, although somewhat “watered down” by years of case law, reserves a supervisory assignment, and most matters involving assignment of work in any regard, to the sole discretion of the agency.
Union Representation During Counseling
The first thing any bargaining unit employee should do when determining whether they have a right to union representation is refer to their Master Agreement (union contract) or contact a Union Representative
Administrative Leave & Authorized Absence
The terms Administrative Leave and Authorized Absence are essentially synonymous (we will use the term Administrative Leave for the purposes of this post). Further, we distinguish that for the purpose of this article, we are not addressing such leave used by union representatives for official time related to union activities.
Responding to Proposed Actions
During the course of your federal career, you may find yourself the subject of a proposed agency action. Frankly, the longer your career and more complex your job functions, the greater this likelihood.
Failure to State (EEO) a Claim
Failure to State A Claim in EEOC under Title 29 can lead to dismissal of EEO claims for federal employees.
Are You Required to Invoke FMLA?
If a federal employee has sufficient leave balances there is no requirement the affected employee first be approved under the FMLA prior to a supervisor approving the use of accrued sick leave (SL) or accrued annual leave (AL) in lieu of sick leave
United States Postal Service Employees
United States States Postal Service employees have what is best described as unusual federal employee/employment status. Specifically and to the point, U.S. Postal Service employees are in the excepted, not competitive, service.
FAQ: Voluntary Leave Transfer Program
Statutory provisions of the Voluntary Leave Transfer Program (VLTP) are codified at Title 5, Part III, Subpart E, Ch. 63 (2006) and Title 5 C.F.R. Pt.630 (2008).
Making Initial Contact: EEO
Initial contact with an EEO Counselor is a seemingly simple, but incredibly critical task to preserve appeal rights. This is the very first step in filing an EEO complaint and must be accomplished within forty-five days.
Yes- The Agency Can Serve You With A Discovery Request
Employees should understand that just as the affected employee can serve discovery requests upon the agency, the agency can serve discovery requests upon the affected employee.
Last Chance Agreements
Last chance agreements (LCA’s) and settlements contain terms agreed to by an (federal) employee, or former employee, and the agency, in which the employee is provided an opportunity to retain (or return to) employment, usually when the agency would otherwise remove, or did in fact already remove, the employee from federal employment.
FAQ: Union Membership Solicitation
Rarely is the Federal Labor Relations Authority (FLRA) as clear on other questions as they are with this question. Unless your Master Agreement or other negotiated instrument (such as a supplemental or local MOU) explicitly provides otherwise, the answer is an unequivocal NO.
Resigning from Federal Service
During and following the massive debacle of the “Trump Shutdown”, we received a large number of inquiries.