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News and Case Alert
Issue #1-7
In this issue...
FMLA NEWS ALERT
FLU SEASON AND EEO CONSIDERATIONS
COMMISSION SET TO REVISIT REGULATORY REVISIONS TO CONFORM TO ADA AMENDMENTS ACT
ARE THE MINIMUM DUE PROCESS RULES CHANGING WITH REGARD TO INDEFINITE SUSPENSIONS?
MISCONDUCT AND MEDICAL PROBLEMS: THE FEDERAL CIRCUIT'S REMINDER
MSPB: INTERIM RELIEF
IMPORTANT
NEW BOOK!
Collective Bargaining Law for the Federal Sector
by Frank Ferris

Collective Bargaining is where it all begins and this book is a must read to understanding the subtleties of collective bargaining for negotiators on both sides of the table and the attorneys that support them.

The FLRA and courts have established over 300 legal precedents for negotiators to follow. Each chapter of Collective Bargaining Law provides short excerpts from these key cases and states the rule of law, followed by commentary on how to comply with that law. Negotiators will use this book to quickly settle disputes over what the law requires, attorneys will use the text to write briefs, and the parties will find the book useful in planning their overall bargaining strategies.

About the author: Frank Ferris is the NTEU National Executive Vice President. He is a national authority on federal sector collective bargaining and the law governing negotiations.
NEW SUPPLEMENT TO ONE OF OUR BEST SELLERS!!
3 Guides

Attention: HR, Representatives, Supervisors...anyone who works in federal sector personnel law! If you don't have this book, you need it. If you have it, you need the supplement.

In its third edition, this landmark text teaches the subtle art of drafting charges that can withstand challenge. MSPB Charges and Penalties contains practice tips, checklists, and "dos" and "don'ts" all geared toward steering charge drafters in the right direction. This book covers substantive charges from AWOL to Unauthorized Use of Government Property and everything in between.

Ever heard of the "slash charge"? Consider this excerpt of sage advice contained in the Supplement on the topic of the slash charge:

What has seemingly caught on in recent years is the practice of using a generic label in a slash charge, e.g., "Unacceptable conduct/falsification and theft." The main text discussed the "slash charge" at considerable length in the chapter on conjunctive charges, the slash charge being a member of the conjunctive charge family: "fighting/lying/stealing."

There appears to be little purpose to combining a generic charge separated by a slash with a specific label (generally a hard-to-prove charge). In many cases, the Board seems to just ignore the generic label and focus on the specific label, the hard-to-prove charge. In other words, as the discussion above makes clear, the conduct is "unacceptable" because of the falsification and theft and there is little, if anything, noticed that could prove unacceptable conduct other than the falsification or theft.

Apparently, some charge drafters feel that by using the generic charge followed by a slash and then the serious misconduct, the agency is accomplishing the leveraging as it gets in "charging down or proving up" or it gets in using the narrative charge with the generic as an added guard against charge recharacterization. That does not work.

The 2009 Supplement to Charges and Penalties is expansive and updates the text with new charges, alternative charges and added practice tips. It addresses service efficiency, revisits notice, and clarifies the line between harmful error and due process. The penalty section addresses the ongoing wave of mitigations with a model proposal, model final decision, and tips on working with deciding officials, including an example of a deciding official's hearing testimony concerning penalty choice.

Don't get reversed, just get this book.

About the authors: Renn C. Fowler is an experienced MSPB practitioner. Samuel A. Vitaro is an arbitrator and former MSPB administrative judge.
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Dear _________,

Welcome to the seventh edition of Dewey's News and Case Alert. As always, Dewey aims to cover the topics you want to read about, and our objective is to tailor the information contained herein to our customers needs. E-mail your topic or case suggestions and comments.

-Dewey Publications Inc.

FMLA NEWS ALERT: OPM ISSUES PROPOSED MILITARY FAMILY LEAVE REGULATIONS COVERING FEDERAL EMPLOYEES

August 26, 2009: OPM recently issued proposed FMLA regulations regarding military family leave for purposes of Title II of the FMLA that would provide an eligible employee up to 26 administrative workweeks of leave to care for members of the Armed Forces, including members of the National Guard or Reserves, who are injured in the line of duty while on active duty. The proposed regulations also amend the rules on advancing sick leave, including sick leave substituted for FMLA unpaid leave to care for a servicemember.

OPM also proposes to make organizational changes to current FMLA and sick leave regulations in an effort to improve comprehension and administration of these programs. In particular, OPM is "considering whether a comprehensive review of OPM's FMLA regulations is needed to identify any problems or concerns that our stakeholders have encountered when reading and applying the provisions of subpart L, Family and Medical Leave, in part 630 of title 5, Code of Federal Regulations."

The proposed regulations are published at 74 Federal Register 43064-43082 (Aug. 26, 2009), and OPM awaits your comments prior to adoption of the final rule. Comments must be received on or before October 26, 2009.

Visit http://edocket.access.gpo.gov/2009/E9-20610.htm for the full text of the proposed regulations and instructions on the comment process.

This is a rapidly developing area of the law, and to keep our readers up to date, Dewey recommends this title: A Federal Sector Guide to the FMLA Act & Related Litigation, 2009 Supplement to the 2nd Edition by Carl Bosland.
FLU SEASON AND EEO CONSIDERATIONS

In our Third Edition of the News and Case Alert, we reported the EEOC's release of technical assistance on discrimination as it relates to the H1N1 Flu Virus. The documents take care to remind readers that Title VII "prohibits employment discrimination on the basis of national origin, for example, discrimination against Mexicans" and answer basic questions about workplace preparation strategies for the virus that are compliant with the Americans with Disabilities Act (ADA). http://www.eeoc.gov/facts/h1n1.html; http://www.eeoc.gov/facts/h1n1_flu.html

With flu season upon us and the CDC's September 11, 2009, H1N1 Flu: Situation Update reporting that visits to doctors for influenza-like illnesses are increasing nationally and higher than expected, we thought it appropriate to renew our reminder of the EEOC's technical assistance. http://www.cdc.gov/H1n1flu/update.htm The documents include answers to questions concerning disability related inquiries and medical examinations covering when and how employers may properly make such inquiries or request health information of applicants and employees regarding the virus. An "ADA-Compliant Pre-Pandemic Employee Survey" is also provided for potential use by employers to plan for absenteeism in the event of a pandemic. Options for infection control practices are also addressed. http://www.eeoc.gov/facts/h1n1_flu.html

For related titles, see Administration of Leave and Medical Documentation Requests by Laws, EEO and the Federal Supervisor by Corum, and A Federal Sector Guide to the FMLA Act & Related Litigation, + 2009 Supplement to the 2nd Edition by Bosland.
COMMISSION SET TO REVISIT REGULATORY REVISIONS TO CONFORM TO ADA AMENDMENTS ACT
In an open session on Thursday, September 17, 2009, the Commission is scheduled to consider the Notice of Proposed Rulemaking to Implement the Americans with Disabilities Act (ADA) Amendments Act of 2008. Stay tuned...
ARE THE MINIMUM DUE PROCESS RULES CHANGING WITH REGARD TO INDEFINITE SUSPENSIONS?
Edwards v. USPS, 2009 MSPB 166
(August 28, 2009)

Where allegations of criminal conduct lead to the indefinite suspension of an employee, minimum due process requires at least a seven day notice and reply period before the non-pay, non-duty indefinite suspension can take effect. The Board in Edwards v. USPS, ___MSPR___¶¶ 13-15, 2009 MSPB 166 (2009), seemed to retreat from this rule and back into a suggestion that indefinite suspensions, if based on criminal charges, may be imposed without due process. Edwards involved a noticeless suspension, not implicating criminal conduct, which was set aside for lack of constitutional due process, but the Board's reasoning is the interesting part of the case:

Although the absence of any pre-suspension process is not a per se constitutional violation, see Homar, 520 U.S. at 930 (citing Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986)), the situations in which such a procedure is constitutionally permissible are rare. "An important government interest, accompanied by a substantial assurance that the deprivation [of property] is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation." Homar, 520 U.S. at 930-31 (quoting Federal Deposit Insurance Corporation v. Mallen, 486 U.S. 230, 240 (1988)). Thus, a public employee may be suspended with little or no pre-suspension process where the employee has been charged with a serious crime. Homar, 520 U.S. at 933-34; Rawls v. U.S. Postal Service, 94 M.S.P.R. 614, ¶¶ 15-17 (2003). In those cases, the imposition of formal criminal charges by an independent body provides assurance that the suspension is not "baseless or unwarranted." Homar, 520 U.S. at 934 (citing Mallen, 486 U.S. at 240); Rawls, 94 M.S.P.R. 614, ¶ 16.

In the present case, the agency did not assert that the appellant had been charged with any crime. Nor did the agency identify any other fact that would provide comparable assurance that the appellant's suspension was not baseless or unwarranted. Therefore, the agency was constitutionally required to provide the appellant with notice of the basis for the suspension and an opportunity to respond before the suspension took effect. The agency's failure to do so deprived the appellant of minimum due process and accordingly we must REVERSE the suspension. See Clark, 85 M.S.P.R. 162, ¶¶ 1, 6.

For Dewey titles discussing indefinite suspensions and adverse action due process requirements, see Best of the Board by Broida and Adverse Actions: A Guide for Federal Managers and Personnel Specialists by Corum.
MISCONDUCT AND MEDICAL PROBLEMS: THE FEDERAL CIRCUIT'S REMINDER
Malloy v. USPS, No. 2008-3117 (Fed. Cir. 2009)

In a recent precedential case, the Federal Circuit in Malloy v. USPS, No. 2008-3117 (Fed. Cir. 2009), emphasized the need to consider medical evidence when misconduct may have its roots in medical problems.

The deciding official in Malloy dismissed voluminous medical evidence presented at Malloy's reply as not "definitive" and concluded that it did not excuse Malloy's misconduct. At the hearing, the same medical documentation earned the following comments by the AJ, who sustained Malloy's removal: "the appellant has failed to establish any medical reason or provide any medical documentation that could justify or excuse her behavior. ...I have reviewed these submissions and find no medical condition that would have caused her to say the things she said." The full Board denied review of the case leading to Malloy's appeal to the Federal Circuit.

The Federal Circuit reminded that where a "mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal," it is incumbent upon the agency to take this information into account when taking an adverse action against the employee. Similarly, the court noted that at the "decision of the MSPB contains no analysis of the medical evidence, although the medical evidence in the record is voluminous and on its face may relate to Ms. Malloy's inappropriate behavior.... Mental impairment is recognized as a mitigating factor, and even if this submission were tardy (the AJ did not so state) Douglas and other precedent counsel toleration of less than optimum responses by a petitioner who may be mentally impaired." With that, the court vacated the decision of the Board and remanded for a Douglas penalty analysis in light of Malloy's medical evidence.

For titles discussing misconduct and medical issues, see Consolidated Federal Sector EEO Update 2004-2009 by Vitaro, Goodfriend & Gilbert and MSPB Charges and Penalties by Vitaro and Fowler.
MSPB: INTERIM RELIEF
Norton v. VA, 2009 MSPB 176 (August 31, 2009)

Another recent decision of interest is Norton v. VA, 2009 MSPB 176 (August 31, 2009), where the Board held that interim relief is properly awarded even when, after receiving a discharge decision, the employee obtains retirement benefits and successfully appeals the discharge to the MSPB. In this case, Norton retired before the effective date of his removal. Norton then appealed the removal to the Board. The AJ reversed the removal and ordered interim relief if the agency filed a petition for review. When the agency filed a timely PFR, Norton moved to dismiss the petition due to the agency's failure to comply with the interim relief order.

Noting that the purpose of interim relief is to protect employees from hardship during the pendency of their appeals should he or she prevail in the initial decision, the Board set forth the two instances in which interim relief may be inappropriate: 1) where interim relief is clearly impractical or is outside the scope of the Board's authority; and 2) "where the appellants are receiving workers' compensation benefits or they are seeking an increase in the retirement benefits that they are receiving and the administrative costs required to prevent the appellants from receiving payment of monies in contravention of statutory authority would be unduly burdensome when weighed against the fact that the appellants are receiving some income." The Board found no "practical impediments" preventing the agency from restoring Norton to his former position or that restoration was beyond the scope of the Board's authority to order relief. Further, according to the Board, the agency failed to establish that "the administrative burden of insuring that the appellant does not improperly receive retirement benefits after being restored to paid status outweighs the hardship that the appellant has experienced by continuing to receive only retirement pay, which is approximately one half of his income while in paid status."

For Dewey titles related to interim relief, see MSPB Basics: The Agency Edition by Broida and A Guide to MSPB Law and Practice by Broida.
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