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Dewey Publications Inc.
News and Case Alert
Issue #1-1

In this issue...
Revision of MSPB DHS Regulations
Returning the "Fair" to Equal Pay
ECAB Reverses OWCP
New Book Announcement!
Senior Executive Service Legal Guide

Finally, a book dedicated entirely to the Senior Executive Service!

Although direction of virtually the entire federal civilian workforce is entrusted, directly or indirectly, to members of the SES, there is surprisingly little literature devoted to operation of the executive personnel system. The purpose of this book is to augment the small fund of existing literature through a concise but reasonably comprehensive treatise on the statutory and regulatory basis for the SES, along with operational guidance from OPM and case law from the MSPB and its reviewing court, the United States Court of Appeals for the Federal Circuit.

- Excerpt from the Senior Executive Service Legal Guide.

As of the last quarter of FY 2007, there were approximately 8,100 SES positions allocated by OPM to agencies. SES members comprise the first tier of executive branch management just below the President, Vice President, and the top presidential appointees who require Senate confirmation. SES managers and supervisors implement policy and program directives, direct overall agency operations and make or implement policy decisions involving agency programs. Learn more about this vital component of the federal government with the Senior Executive Service Legal Guide. This one-stop book helps readers navigate the Senior Executive Service by synthesizing the governing laws, regulations, statutes, and caselaw.

About the authors: Peter Broida is a well respected and longtime practitioner of federal sector employment law and authors various comprehensive books on the subject. Ms. Davis' experience in federal sector employment law began in 2002 as an associate attorney with Broida and Associate, where she represented clients in proceedings before the EEOC and MSPB. Broida and Davis have also co-authored the upcoming MSPB Case Summaries and the new release A Guide to Principles of Federal Sector Arbitration.

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Revision of MSPB DHS Regulations

Effective March 4, 2009, the MSPB removed from its regulations at 5 CFR 1201 all DHS-specific sections relating to the processing and adjudication of appeals filed under the DHS Human Resources Management System. Part 1210 of 5 CFR, establishing procedures for the treatment of appeals and petitions for review involving appeals under the new DHS HR management system, was removed in its entirety.

The MSPB's decision came after DHS's October 1, 2008, recision of 5 CFR 9701, Subparts A-G - the regulation establishing DHS's new HR management system. The repeal of Part 9701 was due to fiscal restraints imposed by the Consolidated Security, Disaster Assistance and Continuing Appropriations Act, 2009, which prohibited DHS from allocating any funding "for the development, testing, deployment, or operation of any portion of a human resources management system."

Repeal of Part 9701 extends to all eligible, covered employees Department wide and affects about 35,000 employees. Those affected will be converted to coverage under Title 5 Chapters 43, 75 and 77. It is back to business as usual for the MSPB.

For more MSPB titles, click here.

Returning the "Fair" to Equal Pay

In January 2009, President Obama signed the Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, § 3, 123 Stat. 5, declaring that with respect to the timeliness of discriminatory pay charges an unlawful employment practice occurs

when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

The Act supersedes the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), wherein the Court stressed the need to identify the specific employment practice at issue and concluded that with respect to discriminatory compensation decisions the period for filing an EEO charge begins when the pay-setting decision is made and communicated to the employee. The Court's ruling, according to Congress, unduly restricted "the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices", "ignore[d] the reality of wage discrimination and [was] at odds with the robust application of the civil rights laws that Congress intended."

The amendment affirms the EEOC's longstanding position on the issue and effectively tolls the statute of limitations for filing a pay related complaint for as long as the employee receives a paycheck.

In terms of recovery, in addition to the usual relief, back pay is available "for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge."

The Act is retroactive to May 28, 2007 and its application extends to Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.

For more on this topic, click here.

ECAB Reverses OWCP Decision Finding Former FBI Special Agent Could Earn Wages as a Paralegal
T.K. and Department of Justice, Federal Bureau of Investigation, No. 08-914

January 14, 2009

OWCP determined that T.K., a former Special Agent with the FBI, could earn $820.80 per week as a paralegal, and reduced his workers' compensation benefits by that amount. The ECAB noted that, while the OWCP vocational rehabilitation counselor identified the position of paralegal as suitable to T.K.'s training and physical abilities, the medical evidence did not support this determination. Specifically, the medical referee examiner, who was a Board-certified orthopedic surgeon, determined that T.K.'s work-related ankle and toe injuries prevented him from sitting, walking or standing more than four hours per day, pushing or pulling more than 15 pounds, and lifting more than 10 pounds. This same physician later concluded that T.K. could perform the paralegal position. The ECAB pointed to evidence that the paralegal position at issue had physical demands of pulling more than 15 pounds and frequent walking and standing. As such, it found the referee examiner's two opinions were inconsistent with each other, and OWCP failed to meet its burden to reduce compensation.

For more on this topic, click here.

Pre-Order The 2009
A Guide to MSPB Law and Practice, 2009
This encyclopedic Guide to the MSPB, related litigation, laws, procedure, and practice is the seminal text on this complex area of the law.

A Guide to FLRA Law and Practice, 2009
The FLRA Guide analyzes the case law of the Federal Labor Relations Authority (established in 1978) and its reviewing courts, as well as the procedures and practice of the Authority.

A Guide to Federal Sector EEO Law and Practice, 2009
This Guide is the most comprehensive analysis of federal sector EEO decisions, regulations, policies, guidance, and practical advice available to practitioners.
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