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Dewey Publications Inc.
News and Case Alert
Issue #1-10
In this issue...
Featured Book!
Executive Order Establishes National Council on Federal Labor-Management Relations and Calls for...
MSPB Penalty Determinations:
Everything Old is New Again by Renn Fowler
GINA Takes Effect
EEOC Gets a Web-Over
Conducting Misconduct Inquiries: A Guide for Federal Managers and Supervisors
An employee has alleged being sexually harassed by a coworker. Now what? How do you proceed? Can you investigate and, if so, how do you go about it? What are your obligations? What is the scope of your authority? All supervisors or managers are almost certain to face this scenario or some other alleged form of misconduct at some point in their career and for many it is not a one time occurrence.

Whether you are a supervisor or manager or you advise them, Conducting Misconduct Inquiries: A Guide for Federal Managers and Supervisors is an indispensable resource to navigating through the treacherous waters of conducting misconduct inquiries. The authors have written a comprehensive text on how to conduct fair and efficient inquiries including how to prepare for and conduct an inquiry, how to collect and analyze evidence and documentation, and how to report findings and make recommendations.

About the Authors:
Samuel Vitaro is labor arbitrator, mediator, fact-finder, and consultant in private practice specializing in MSPB and EEO matters.
Jeffery Goodfriend is an attorney specializing in federal employment law.
Gary Gilbert is an attorney, consultant, lecturer, author and mediator specializing in the area of employment discrimination law and a former Chief Administrative Judge for the EEOC.
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Dear _________,

Welcome to the tenth 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.

Executive Order Establishes National Council on Federal Labor-Management Relations and Calls for the Creation of "Labor-Management Forums to Improve Delivery of Government Services"

On December 9, 2009, President Obama signed an Executive Order establishing a "National Council on Federal Labor Management Relations" and creating labor-management forums "to establish a cooperative and productive form of labor-management relations throughout the executive branch."

The Council will advise the President on all things labor-management related and, among other things, support the creation of labor-management forums at the department or agency level. The following government and union officials will comprise the Council:
  • the Director of OPM and Deputy Director for Management, OMB;
  • the Newly Appointed Chair of the FLRA;
  • "a Deputy Secretary or other officer with department- or agency-wide authority from each of the five executive departments or agencies not otherwise represented on the Council";
  • the Presidents of AFGE, NFFE, NTEU, IFPTE and "the heads of three other labor unions that represent Federal employees and are not otherwise represented on the Council"; and
  • the Presidents of the Senior Executives Association and Federal Managers Association.
The labor-management forums are meant to supplement rather than supplant the current collective bargaining process. The EO states that
Management should discuss workplace challenges and problems with labor and endeavor to develop solutions jointly, rather than advise union representative of predetermined solutions to problems and then engage in bargaining over the impact and implementation of the predetermined solutions.
Allowing government employees and their union representatives pre-decisional involvement in workplace matters is perhaps the most significant instruction by the Order. Commenting on the impact of the Executive Order, Peter Broida, author of A Guide to FLRA Law and Practice and co-author of A Guide to Principles of Federal Sector Arbitration, told cyber FEDS® that "predecisional involvement will revolutionize federal LR in that it will lead to new agreements, modifications to existing ones, and the reopening of past agreements. One way or another, predecisional involvement will enhance the use of collective bargaining to the extent that management and unions will have to start to come to [agreements]," he said. "This does not say that predecisional involvement must end in agreement. Agencies can still implement [policies]."

For more on collective bargaining and labor-union topics, see Collective Bargaining Law for the Federal Sector by Dewey author, Frank Ferris.
MSPB PENALTY DETERMINATIONS:
Everything Old is New Again
by Renn Fowler

As the new MSPB Board takes shape, it's time to revisit and re-sharpen our advocacy skills vis-à-vis selling our penalty. For those new to MSPB practice in the last eight years, it's time to master those skills. What is almost certainly coming is a new wave of penalty mitigation, more intense scrutiny of agency penalty cases.

When the agency fails to prove all its charges, fails to conscientiously consider all relevant Douglas factors, or relies on an impermissible consideration, the Board may set, without deference, the penalty.

There are several common and recurring agency penalty errors. Foremost, agency deciding officials testify too often in conclusory, vague, exaggerated terms as to the seriousness of the misconduct, loss of trust and confidence, etc. Deciding official testimony must be specific, credible, and even-handed. Agency penalties rely often on unnoticed prior discipline and aggravating factors; all priors and aggravating factors should be noticed in the agency proposal. Agencies that assume the Board understands the importance and seriousness of the charged misconduct fail to convey the agency's vital interests. That is, why the misconduct is not a "no-harm, no error" situation. And finally, even though an agency penalty presentation is essentially a showing that discretion was reasonably exercised, the agency must prove by preponderant evidence all penalty-related facts.

While there are 12 Douglas factors, 13 including "the lost Douglas factor," there are just a few critical factors that if not addressed allows for mitigation.
  • The most important factor, according to the Board, is Douglas factor 1, nature and seriousness, relation to duties, intent. This factor, specifically intent, is the basis for "charging down and proving up," the potent agency weapon of bringing an easy-to-prove non-intent charge and noticing and proving intent as a penalty aggravator, thereby justifying an "intent penalty" off the non-intent charge.
  • Douglas factor 3, prior disciplinary record, provides a basis for arguing that the appellant is not salvageable.
  • Douglas factor 10, potential for rehabilitation, is really the critical factor to which all other Douglas factors distill. The question being, can appellant be salvaged?
  • Although an agency is not required to impose the most benign possible sanction, a deciding official should be able to testify as to Douglas factor 12, the effectiveness of an alternative sanction, that he considered alternatives and why he rejected those alternatives.
  • The "lost Douglas factor": Should appellant be a federal employee? Truth be told, this is the heart of penalty advocacy, because various factors, penalty law, and penalty decisions will or will not be applied depending on whether or not the Board views the appellant as worthy of federal employment.
A compelling agency penalty case can be made in just a few concise Q&As.
Q1: "Mr. Deciding Official, state whether you considered appellant's conduct to be serious?" "Explain."
Q2: "State whether appellant's conduct related to his duties?" "Explain."
Q3: "Did appellant have any prior disciple?" "Tell us about that."
Q4: "State whether you believe that appellant has a potential for rehabilitation." "Explain."
Q5: "State whether you considered anything less than removal as a possible penalty in this case." "Explain to us why you didn't go with a lesser penalty."
Q6: "State whether, in your judgment, anything less than removal would adequately protect the agency's interests." "Explain."

Virtually all these questions are vital to a winning penalty presentation and, if done correctly, make it hard for the Board to mitigate.

In MSPB Charges and Penalties: A Charging Manual and in its just-off-the press Supplement we address these points and many more penalty-winning techniques.
GINA Takes Effect

Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"), which prohibits genetic information discrimination in employment, took effect on November 21, 2009. Here are the basics.

Executive Order 13145, signed by former President Clinton, prohibits discrimination against employees based on, among other things, "protected genetic information," which includes information about a person's genetic tests or that of the person's family members and "information about the occurrence of a disease, or medical condition or disorder in family members of the individual." GINA similarly prohibits covered entities from using genetic information in employment decisions and any intentional acquisition of genetic information concerning applicants and employees. The Act further sets forth strict confidentiality requirements regarding any disclosure of genetic information. The EEOC enforces Title II of GINA and has one year from the date of enactment to issue regulations to carry out its provisions. According to the EEOC, normally it will be unlawful for an employer to acquire the genetic information of an employee or applicant. How is it that an employer may become privy to such information in the first place then, you ask? Some examples and narrow exceptions to the acquisition prohibition are:
  • Water cooler talk (or, as my boss refers to it "inter-office chatter"). A supervisor or coworker might over hear a discussion wherein certain genetic information is revealed. Inadvertent acquisitions do not violate GINA.
  • FMLA leave. It may be that the disclosure of genetic information becomes necessary in the course of requesting and providing justification for FMLA leave.
  • Just reading the newspaper or surfing the web. "Acquisition through commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information."
These and other exceptions are delineated in Section 202 of Title II. To read the full text of GINA, visit http://www.eeoc.gov/laws/statutes/gina.cfm.

For more EEO related topics geared to federal sector supervisors and managers, see Surviving EEO Complaints by Sarah Tuck, Conducting Misconduct Inquiries by Vitaro, Goodfriend, and Gilbert, and EEO and the Federal Supervisor by Michael Corum.
EEOC Gets a Web-Over

Starting with the MSPB, then the FLRA, and now the EEOC, it seems as everyone is getting a web makeover. Visit eeoc.gov to peruse their new look. Yes, change is hard for everyone, and the EEOC welcomes your comments on ease of use. http://www1.eeoc.gov/newsite.cfm

For more on EEO topics, see Best of the Commission and Representing Agencies and Complainants Before the EEOC by Ernest Hadley.
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