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NEWS AND CASE ALERT
March 22nd, 2021 | Issue #13-03
TABLE OF CONTENTS
AGENCY DEBT WAIVER DETERMINATIONS UNREVIEWABLE IN ARBITRATION
CHAPTER 43 PERFORMANCE CASE STANDARDS OF PROOF ALTERED
OPM GUIDANCE ON EXECUTIVE ORDER 14,003
WORTH READING
Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.
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AGENCY DEBT WAIVER DETERMINATIONS UNREVIEWABLE IN ARBITRATION
Parting company with precedent, FLRA determined that 5 USC 5584, allowing waivers of incorrect payments of pay or allowances but restricting debt waiver when the authorized agency official is of the opinion that there exists an indication of fraud, misrepresentation, fault, or lack fo good faith by the employee seeking waiver, precludes an arbitrator from reviewing the decision of that agency official when those reasons are invoked to deny debt forgiveness. FLRA determined that the statute placed unreviewable discretion in the agency. Chairman DuBester pointed out the several past decisions reached a contrary result and permitted arbitrators to review debt forgiveness determinations by agency officials. He also pointed out that the statutory language did not suggest unreviewable discretion or sole and exclusive authority of the agency official making the determination.

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CHAPTER 43 PERFORMANCE CASE STANDARDS OF PROOF ALTERED
For years MSPB held that an agency need not prove unacceptable performance prior to a PIP before placing the employee on a PIP. Some agencies would state in PIP letters that the employee's performance was unacceptable and then proceed to identify PIP performance standards and tasks to be performed. Other PIP letters would recite a history of poor performance, possibly including unacceptable performance ratings or earlier critiques by email or otherwise of performance deficiencies. The Federal Circuit did not accept the Board's analysis. Instead, the Circuit looked to 5 USC 4302(c)(6), stating agency responsibility for "reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance." Critical were the words "continue to have unacceptable performance." That language required proof of unacceptable performance as a condition of imposing a PIP. The Circuit stated "Importantly, we are not prescribing any particular evidentiary showing with respect to the employee's pre-PIP performance. Performance failures can be documented or established in any number of ways." In the ordinary course of events, there will likely be plenty of evidence of subpar pre-PIP performance. What the Circuit was concerned about was the inference of reprisal as to an employee engaged in protected activity (e.g., taking military leave, protected by USERRA), who is placed on a PIP with a good performance record leading up to the PIP.

OPM GUIDANCE ON EXECUTIVE ORDER 14,003
On March 5, 2021, OPM issued guidance to agency heads directing them to disregard Trump Executive Orders 13,836, 13,837, 13,839, and 13,957 (Schedule F), that had placed aspects of labor relations and civil service adjudication into a state of uncertainty, or worse, depending on one's perspective. The OPM guidance also directed agency heads to undo, to the extent reasonably possible, intervening changes in matters affecting labor relations (collective bargaining and union official time and facilities), as well as position movements through Schedule F, and restore matters to the status quo ante.

A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2020 and a chart of significant awards. Major topics include equitable and compensatory damages, proving damages, mitigation and offset, back pay, collateral source rule, tax consequences, settlement, managing discovery, calculating damages, and attorney.

By: Broida & Davis
Edition: 11th/2020
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2020 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, mitigation, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA.
WORTH READING
If you've a bit of time, we recommend for your review:

2009 Nat'l. Acad. Arbitrators Proceedings, 315-33
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The EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners.

The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration.

The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law.

This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2020 and reviews EEO laws, regulations, guidance, and recent trends.

Condenses MSPB and Federal Circuit decisions from 1999 through early 2020 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.

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