Articles Posted in Labor & Employment Law

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Kerr was employed by the federal agency since 1980. Following adverse personnel actions, Kerr alleged sex and religious discrimination and retaliation before the agency’s Equal Employment Opportunity office. Kerr subsequently challenged her 2006 removal and the earlier adverse personnel actions before the Merit Systems Protection Board (MSPB), citing Title VII and retaliation under the Whistleblower Protection Act (WPA), 5 U.S.C. 1201. The MSPB indicated that it lacked jurisdiction over the less-serious personnel decisions and gave Kerr the opportunity to present her removal-related claims to the agency’s EEO office or have the MSPB decide them. Kerr chose the EEO office. The MSPB dismissed Kerr’s appeal without prejudice. The EEO office rejected Kerr’s discrimination claims and concluded that the WPA claim was not within its jurisdiction, telling Kerr that she could not appeal the constructive discharge claim to the EEOC, but could either appeal to the MSPB or file suit. Kerr filed suit. On remand from the Ninth Circuit, the government first argued that the court lacked jurisdiction over Kerr’s WPA claim because she failed to exhaust her administrative remedies by MSPB review. The district court dismissed the WPA claim. A jury returned a defense verdict on the discrimination claim. The Ninth Circuit affirmed. The Supreme Court denied certiorari. The MSPB rejected Kerr’s request to reopen, concluding that there was neither good cause nor equitable tolling for the untimely filing. The Federal Circuit reversed. Kerr did have a reasonable basis for thinking that the district court was an appropriate forum for all of her claims. The court noted the language of 5 U.S.C. 7702, Tenth Circuit precedent, and that the government did not warn Kerr she would waive her claim by failing to file at the MSPB. Kerr has demonstrated reasonable diligence and there is no prejudice to the agency. View "Kerr v. Merit Systems Protection Board" on Justia Law

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Siler was an EPA Special Agent, conducting criminal investigations, 1997-2016. Siler also operated a personal business, selling military collectibles. Siler failed to report that business, as required, used his government computer for personal business, and tried to intimidate a contractor with whom he dealt in conducting that business. That contractor filed a complaint. EPA placed Siler on leave. The Office of the Inspector General cleared Siler of criminal charges. After Siler’s supervisor told Siler things “looked good” for an eventual return to full duty, Siler became involved in an investigation into another supervisor, Ashe. Siler expressed fear of retaliation but stated that Ashe had been sleeping at his desk and had smelled of alcohol. Others testified similarly. Ashe retired before serving his suspension. Siler was investigated for conduct unbecoming an investigator, improperly using his government computer, and failing to report his outside business. Siler, 11 months shy of retirement eligibility, was terminated. He argued that removal was not reasonable and that his statements regarding Ashe constituted protected whistleblowing that caused retaliation. In discovery, EPA produced draft notices of proposed sanctions against Siler, which identified a different decision-maker than previously identified. Siler sought the emails to which these drafts had been attached. EPA sought to claw back the drafts, claiming attorney-client privilege. EPA produced no privilege log. The Merit Systems Protection Board found the drafts privileged and found that Siler would have been removed even without his protected disclosures. The Federal Circuit vacated. EPA did not prove that the allegedly protected communication was made in confidence to its attorney. The Board “may not simply guess what might happen absent whistleblowing.” View "Siler v. Environmental Protection Agency" on Justia Law

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The Customs and Border Patrol (CBP) Discipline Review Board sent Boss a proposed 30-day suspension based on disciplinary infraction charges: failure to follow a policy related to overtime sheets, failure to follow supervisory instructions, and conduct unbecoming a U.S. Border Patrol Agent. The deciding official interviewed witnesses and received arguments from the agency and Boss and sent a decision letter, concluding that Boss should be disciplined on all three charges, but reducing the suspension to 15 days. Boss requested arbitration. During the arbitration hearing, the deciding official admitted that he had considered three documents that had not been provided to Boss or his union. The documents were agency policies regarding administratively uncontrollable overtime pay. The arbitrator agreed that the agency violated the contractual due process provision, and vacated Charge One. The parties agreed that the undisclosed documents solely relate to Charge One. The arbitrator analyzed Charges Two and Three on their merits, apparently concluding that he need not address Boss’s contractual and constitutional due process arguments, concluded that the agency carried its burden of proof, and reduced the discipline to a 10- day suspension. The Federal Circuit affirmed. The arbitrator properly treated the three charges separately and independently. View "Boss v. Department of Homeland Security" on Justia Law

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Sihota worked for the IRS for over 25 years. A 2011 IRS audit determined that, in 2003, Sihota reported a loss based on her purported ownership of NKRS, which was actually owned by Sihota’s son. The parties reached a settlement: Sihota acknowledged she had “acted negligently … resulting in an underpayment of ... $5341.00.” Sihota paid the assessment and penalty. The IRS terminated her employment, stating that Sihota was charged with either violating 5 CFR 2635.809 or 26 U.S.C. 7804, which requires the IRS to terminate any employee who willfully understates their federal tax liability, “unless such understatement is due to reasonable cause and not willful neglect.” The Union invoked arbitration. A hearing was held four years after the IRS contacted the Union about scheduling. The arbitrator concluded that inclusion of the loss on her return was not willful neglect, reinstated Sihota’s employment, imposed a 10-day suspension, and held that Sihota was not entitled to back pay, citing laches and the scheduling delay. The Federal Circuit vacated and remanded, stating that it could not discern which charges were properly considered or would support the suspension. If the only charge before the arbitrator was under the statute, the arbitrator could not impose any penalty. While the Union’s delay is inexplicable and might have barred the claim if the IRS could show prejudice, after allowing Sihota’s claim to proceed, the arbitrator cannot rely on laches to reduce her back pay. View "Sihota v. Internal Revenue Service" on Justia Law

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The Capitol Police and the Union were negotiating a new collective bargaining agreement. The Police notified the Union of planned changes to its personnel policies. The Union responded with its own proposals. The Police declined to negotiate some proposals. The Compliance Board ruled for the Police as to some proposals but for the Union as to others and ordered the Police to bargain with the Union. In related cases, the Federal Circuit held that it lacked jurisdiction over the Police’s petitions for direct review of the negotiability decisions but that it had jurisdiction over the Office of Compliance petitions to enforce those decisions. In ruling on the enforcement petitions, the court reviewed the underlying negotiability decisions under the Administrative Procedure Act, 5 U.S.C. 706, default standard of review. In this decision, the court held that whether the Board refers a negotiability petition to a hearing officer is a matter for the Board's discretion, not a matter of statutory compulsion, and that the opportunity for such a referral may be lost if not timely requested. The court separately dismissed the Police’s petitions for direct review of the negotiability decisions regarding 12 specific proposals; held that it has jurisdiction over the enforcement action under 2 U.S.C. 1407(a)(2); granted the petition for enforcement with respect to five proposals while denying the petition with respect to six proposals; and set aside the order with respect to one proposal, remanding for determination of whether that proposal involves a change in conditions of employment. View "Office of Compliance v. United States Capitol Police" on Justia Law

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The Congressional Accountability Act (CAA) conferred rights and protections to employees of the legislative branch, modeled after and incorporating executive branch labor and employment statutes. CAA section 1351 gives legislative branch employees the right to bargain “with respect to conditions of employment" through their chosen representative, 5 U.S.C. 7117, but does not define “conditions of employment.” The Compliance Board issues regulations to implement section 1351; its regulations track the language in the Federal Service Labor-Management Relations Statute, defining “conditions of employment” as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters . . . [t]o the extent such matters are specifically provided for by Federal statute.” A negotiability dispute arose between the U.S. Capitol Police and the Union during negotiations for a new collective bargaining agreement (CBA). The Police proposed to exclude employee terminations from the scope of the CBA’s grievance and arbitration procedures. The Union proposed language to ensure that terminations would continue to be covered by the grievance procedures. The Police refused to negotiate. The Compliance Board found the Union’s proposals negotiable. The Federal Circuit dismissed the Police’s petition for lack of jurisdiction, but, applying the Administrative Procedure Act standard of review, granted an enforcement petition, finding that the Compliance Board’s decision not contrary to law or otherwise invalid. View "United States Capitol Police v. Office of Compliance" on Justia Law

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Plaintiffs, retired or separated from their VA positions in 1993-1999, with accrued but unused leave. The Lump Sum Pay Act (LSPA), 5 U.S.C. 5551-5552, provides that an employee “who is separated from the service . . . is entitled to receive a lump-sum payment for accumulated and current accrued annual or vacation leave” equal to the pay the employee would have received had he remained in federal service until the expiration of the period of annual or vacation leave. Plaintiffs received lump-sum payments for their accrued and unused annual leave and later received supplemental lump-sum payments that reflected statutory pay increases and general system-wide pay increases that became effective before the expiration of their accrued annual leave. Plaintiffs sued, alleging that the VA omitted increases included Cost of Living Adjustments (COLAs) and Locality Pay Adjustments and that payments made to certain plaintiffs improperly omitted non-overtime Sunday premium pay or evening and weekend “additional pay” that they would have received had they remained in federal service. They sought pre-judgment interest under the Back Pay Act, 5 U.S.C. 5596. The claims for additional COLAs, Locality Pay Adjustments, and non-overtime Sunday premium pay were resolved. The Claims Court held, and the Federal Circuit affirmed, that, as members of the class, plaintiffs were not entitled to have evening and weekend “additional pay” included in their payments. They were not entitled to receive pre-judgment interest on amounts improperly withheld from their payments. View "Athey v. United States" on Justia Law

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Miller served in the government's military and civilian sectors before retiring. Because he became an “employee” before October 1982, Miller’s credit for military service can count toward the calculation of his civil service retirement annuity, subject to 5 U.S.C. 8332(c)(2). An annuitant who does not satisfy the requirements of section 8332(c)(2)(A)–(B) but wishes to count military service toward civil service retirement must waive his military retired pay for that period and, in some circumstances, pay a deposit. 5 C.F.R. 831.301(c). The Merit Systems Protection Board affirmed the Office of Personnel Management determination of the periods of Miller’s government service that were “creditable” for calculating his civil service retirement annuity. The Federal Circuit concluded that the Board erred in its decision with respect to Periods One and Two, but upheld its decision with respect to Period Three. For concurrent military and civilian service in Period One, Miller is entitled to credit toward both his military and civilian retirement. Substantial evidence does not support the Board’s finding that Miller was in leave-without-pay status during Period Two; he was in a concurrent service situation and is entitled to have Period Two credited as civilian service. Miller is deemed to have had no civilian service during Period Three and has not made a deposit or waived his military retirement pay for this period. View "Miller v. Office of Personnel Management" on Justia Law

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Pay for doctors employed at VA hospitals, consisting of base pay, market pay, and performance pay is governed by 38 U.S.C. 7431. A pay panel meets at least every two years to determine market compensation for an individual physician and must consider new pay tables, issued by the Veterans Health Administration (VHA). Two women physicians at the Central Arkansas Veterans Healthcare System were hired in 2008 for an annual pay of $195,000, slightly less than the maximum allowed by the pay table. One year later, their base pay increased. As of November 2010, both were due for adjustments to market pay. In December 2010, VHA initiated a pay freeze. In 2012, each doctor filed an EEOC complaint, identifying male doctors whom they alleged were similarly situated and were being paid more. An EEOC officer concluded that they could not prove that the reasons for the salary differences were pretextual or resulted from unlawful discrimination. The pay freeze continued until December 2013. Both doctors then received base increases according to their longevity and received market pay increases to make their compensation “more in line with other emergency department physicians.” Each was restored to the middle of the salary spread. The doctors sued under the Equal Pay Act The Claims Court did not analyze whether they had established a prima facie case of salary discrimination, holding that they had not shown that discrimination was the reason for a male physician’s raise one year after being hired or for delays in processing their raises in time to avoid the pay freeze. The Federal Circuit affirmed. The doctors presented no evidence that the pay differential was based on sex, either historically or presently. View "Gordon v. United States" on Justia Law

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Villareal began working for the Bureau of Prisons in 2007 and had no disciplinary record; all of his evaluations were rated satisfactory or higher. In 2012, while Villareal was a Senior Corrections Officer at FDC Houston, the Office of the Inspector General (OIG) investigated Villareal’s relationship with female inmates, Solis and Santana. Villareal was reassigned to a phone monitor position; he was not allowed to interact with the inmates or to work overtime. After a seven-month investigation, OIG concluded that Villareal violated several Bureau policies: placed and failed to report calls on his cellular phone to Solis’s family; engaged in an inappropriate relationship with Solis and showed preferential treatment toward Solis and Santana; misused his work computer, failed to properly monitor inmates around computers, failed to properly secure his office, and made derogatory remarks to inmates. Then-Warden Babcock stated to Villareal’s union representative that Villareal would be given a 30-day suspension. Pearce succeeded Babcock and testified that during their transition meeting, Babcock referred to Villareal as a “potential termination.” Villareal's termination was proposed as consistent with the Bureau’s table of penalties and Villareal’s lack of remorse. Villareal’s union filed a grievance, emphasizing that 1,265 days had passed between the investigation's beginning and Villareal’s removal. An arbitrator found removal justified. The Federal Circuit affirmed, rejecting due process claims. Villareal made no claim of prejudice resulting from the delay. Warden Pearce properly considered the relevant factors in reaching his decision. View "Villareal v. Bureau of Prisons" on Justia Law