Select items up to 50% off and all eBooks 20% off sale ends 12/31/2018
2009: #01-1 | #01-2 | #01-3 | #01-4 | #01-5 | #01-6 | #01-7 | #01-8 | #01-9 | #01-10 |
2010: #02-1 | #02-2 | #02-3 | #02-4 | #02-5 | #02-6 | #02-7 | #02-8 | #02-9 | #02-10 | #02-11 | #02-12
2011: #03-1 | #03-2 | #03-3 | #03-4 | #03-5 | #03-6 | #03-7 | #03-8 | #03-9 | #03-10
2012: #04-1 | #04-2 | #04-3 | #04-4 | #04-5 | #04-6 | #04-7 | #04-8 | #04-9 | #04-10 | #04-11 | #04-12
2013: #05-1 | #05-2 | #05-3 | #05-4 | #05-5 | #05-6 | #05-7 | #05-8 | #05-9 | #05-10 | #05-11 | #05-12 | #05-13
2014: #06-1 | #06-2 | #06-3 | #06-4 | #06-5 | #06-6 | #06-7 | #06-8 | #06-9 | #06-10 | #06-11 | #06-12 | #06-13 |
2015: #07-1 | #07-2 | #07-3 | #07-4 | #07-5 | #07-6 | #07-7 | #07-8 | #07-9 |
2016: #08-1 | #08-2 | #08-3 | #08-4 | #08-5 | #08-6 | #08-7 | #08-8 |
2017: #09-1 | #09-2 | #09-3 | #09-4 | #09-5 | #09-6 | #09-7 | #09-8 | #09-9 |
2018: #10-1 | #10-2 | #10-3 | #10-4 | #10-5 | #10-6 |
The "News and Case Alert email" is FREE, signup!
Sign up now to start receiving issues on time. Expect 10-14 issues a year.
We will never spam or give out your address.

My e-mail address is:  

Dewey Publications Inc.
News and Case Alert
Issue #6-8
TABLE OF CONTENTS

Back Pay Act Coverage Lacking for Some Postal Service Employees in Board Cases?


EEOC Issues Enforcement Guidance on Pregnancy Discrimination and Related Issues


The Dewey Publications Podcast


Intelligence Community Has Some New Administrative Whistleblower Protection


Mobility Agreements: What's the Burden of Proof When an Employee Declines a Reassignment?


Pro Bono Representation Opportunities

.

New Releases

Settlement Forms for MSPB and EEOC Federal Personnel Litigation

By: Broida
Price: $160.00
Sku: 14SFME
Edition: 2nd/2014
Format: Book (+ optional CD)
More details at:
deweypub.com/sfme




Broida on Negotiability

By: Broida
Price: $125.00
Sku: 14BON
Edition: 1st/2014
Format: 2hr 51min .mp4 video on DVD-ROM; workbook
More details at:
deweypub.com/bon


MSPB Charges & Penalties

By: Fowler & Vitaro
Price: $235.00
Sku: 14MSCP
Edition: 6th/2014
Format: Book (+ optional CD)
More details at:
deweypub.com/mscp



Consolidated Federal Sector EEO Update 2004-2014

By: Gilbert & Sumner
Price: $200.00
Sku: 14CEUP
Edition: 5th/2014
Format: Book (+ optional CD)
More details at:
deweypub.com/ceup



MSPB Case Summaries

By: Broida & Davis
Price: $200.00
Sku: 14MSCS
Edition: 5th/2014
Format: Book (+ optional CD)
More details at:
deweypub.com/mscs



.


VISIT US ONLINE AT
www.deweypub.com


.

Coming Soon

Compensatory Damages and Other Remedies

By: Gilbert
Price: $225.00
Sku: 14CDOR
Edition: 6th/2014
Format: Book (+ optional CD)
More details at:
deweypub.com/cdor



Security Clearance Law and Procedure

By: Newman
Price: $235.00
Sku: 14SCLP
Edition: 3rd/2014
Format: Book (+ optional CD)
More details at:
deweypub.com/sclp

.

The 2014
MSPB Guide
is in stock

A Guide to
Merit Systems Protection Board Law and Practice


By: Broida
Price: $625.00
Edition: 31th/2014
More details at:
deweypub.com/mspbguide




The 2014
EEO Guide
is in stock

A Guide to
Federal Sector Equal Employment Law and Practice


By: Hadley
Price: $625.00
Edition: 27th/2014
More details at:
deweypub.com/eeoguide



The 2014
FLRA Guide
is in stock

A Guide to
Federal Labor Relations Authority Law and Practice


By: Broida
Price: $525.00
Edition: 27th/2014
More details at:
deweypub.com/flraguide


.

Follow us on Twitter

Like us on Facebook

Please use the "Forward email" link at the bottom of this email to share our News Alert with a colleague.

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.

VISIT US ONLINE AT

www.deweypub.com

.

Back Pay Act Coverage Lacking for Some Postal Service Employees in Board Cases?

Erickson v. USPS, Federal Circuit Precedential 2008-3216 (July 18, 2014)

As it resolved a counsel fee petition, the Federal Circuit was required to determine whether any legal theory supported a fee award for Mr. Erickson, who prevailed in a USERRA appeal to the Board following his removal for excessive use of military leave. The court determined that the Back Pay Act did not provide authority to the Court to award fees for the time of Mr. Erickson's counsel in court because that Act, it was concluded, does not apply to preference eligibles of the Postal Service. Of significance to practitioners beyond the intricacies of legal theories of entitlement to counsel fees for time spent in the Federal Circuit is the implication of the case upon Board practice. For Board cases, remedial orders will need to be structured in accordance with the Postal Service Employee and Labor Relations Manual, the provisions of which (for example, as to interest calculations or the duty to mitigate back pay damages) may differ from wording and application of the Back Pay Act.

For more on USERRA, see USERRA/VEOA Deskbook by Kitchens.

.

EEOC Issues Enforcement Guidance on Pregnancy Discrimination and Related Issues (July 14, 2014)

Implementing both the Pregnancy Discrimination Act of 1978 and the Americans with Disabilities Act, as amended, the Enforcement Guidance address stereotypes and assumptions; unlawful discharge during pregnancy or parental leave; discrimination; application of leave policy; disparate treatment; harassment or hostile environment; benefit entitlements; access to light duty; disability accommodations including modified work schedules, purchase or modification of equipment and devices; modification of workplace policies; redistribution of nonessential duties or marginal functions.

The Enforcement Guidance can be found at: eeoc.gov/laws/guidance/pregnancy_guidance.cfm

For more on pregnancy discrimination, see Consolidated Federal Sector EEO Update 2004-2014 by Gilbert & Sumner and A Guide to Federal Sector Equal Employment Law and Practice By Hadley.

.

The Dewey Publications Podcast

Dewey now offers a weekly podcast, hosted by Peter Broida, on federal civil service law. Each week Mr. Broida selects for discussion a few new decisions from the MSPB, FLRA, their reviewing courts, and occasionally the EEOC. Tips for practitioners are also included.

Listen to the episodes on our podcast page deweypub.com/podcast or subscribe for free via iTunes or RSS feed to get episodes as soon as they are published.

.

Intelligence Community Has Some New Administrative Whistleblower Protection

The Intelligence Authorization Act of 2014 contains Section 1104, establishes as to the principal intelligence agencies a prohibited personnel practice a personnel action in reprisal for disclosures by an employee within designated components of the intelligence establishments reasonably believed to evidence violations of federal law, rule, or regulation; mismanagement, gross was of funds, abuse of authority, or a substantial and specific danger to public health and safety. Enforcement is left to procedures to be developed by the President. The statute also prohibits retaliatory revocation of security clearance or access determinations based on defined protected disclosures within the designated agencies to inspectors general of those agencies. Appeal procedures, to be developed by the Director of National Intelligence, will be available at two levels, but no court action or MSPB appeal is authorized. The law does provide for backpay and benefits, and compensatory damages of not more than $300,000. Interestingly the 2014 statute caps compensatory damages, while the Whistleblower Protection Enhancement Act does not. The law sets up a prima facie case based on a contributing factor determination, and provides the employing agency the defense that it would have taken the same action in the absence of the disclosure, "giving the utmost deference to the agency's assessment of the particular threat to the national security interests of the United States in the instant matter."

The Act can be found at: htts://beta.congress.gov/bill/113th-congress/senate-bill/1681/text

For more on the WPA and WPEA, see A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012 by Fowler & Vitaro.

.

Mobility Agreements: What's the Burden of Proof When an Employee Declines a Reassignment?

Gallegos v. Dept. of Air Force, ___MSPR___, 2014 MSPB 53 (July 17, 2014)

Attentive Update followers recall the Board's decision revising the burden of proof when an employee is fired for refusing a geographical reassignment. Under Miller v. Dept. of Interior, 119 MSPR 438, 2013 MSPB 35 (2013), an agency must prove "that the reassignment was required because the agency had eliminated or had no need for the appellant's continued performance in her former position or because it needed to address the appellant's performance problems in her former position." But what of the employee who signs a mobility agreement and is then fired when they decline to mobilize to a new post? A different burden of proof applies according to Gallegos v. Dept. of Air Force, ___MSPR___, 2014 MSPB 53 (2014). The burden of proof is then still on the agency to demonstrate a legitimate basis for the reassignment, and the employee's defense is that the application of the mobility policy to her was patently unfair or based on bad faith. The service efficiency standard applies, but "when an agency has made a policy decision that an entire group of positions must be mobile, the focus of [the Board's] analysis is less on whether the agency had a bona fide reason for the individual employee's reassignment and more on whether the agency's policy was supported by a legitimate management reason." If the Agency gives fair consideration to the employee's ability to meet exceptions to the mobility requirement, and if the mobility requirement is based on properly expressed and reasonable considerations in agency policy for the class of positions involved, the agency removal action is likely to be sustained. The agency policy was "its need for "civilian mobility" as an essential component of its organizational effectiveness and for employee career progression," which was good enough for the Board. The removal, based on lack of the appellant's ability to fulfill a condition of employment (not failing to accept a reassignment), was sustained.

For related products, see A Guide to MSPB Law and Practice by Broida and MSPB Case Summaries by Broida and Davis.

.

Pro Bono Representation Opportunities

Want to do good deeds and get some experience in appellate litigation? The MSPB put out a call for names of attorneys willing to provide pro bono representation to appellants before the Federal Circuit. If you are a federally-employed attorney, check with your designated ethics officer to determine if you can provide that type of representation and under what circumstances in can be provided. Also check 18 USC 205(d)(1)(A). [The MSPB notice is at 79 Fed. Reg. 41707 (June 13, 2014)]

.

Veterans Administration Senior Executives Under Congressional Attack

The Veterans Access, Choice and Accountability Act of 2014, enacted in response to complaints of inadequate or untimely health care has many provisions, and principally concerns funding of new means of extending health care to veterans. One component of the Statute, Section 707, "Removal of Senior Executives of the Department of Veterans Affairs for Performance or Misconduct," strips VA SES members of preexisting statutory protections and severely limits their appeal rights to MSPB and, possibly, restricts judicial review as well.

The statute allows VA to remove an SES member for performance or misconduct, and the Secretary may remove the individual from the civil service or may (and the word is "may" and not "shall") assign ("transfer") the person to a General Schedule position at a grade and to duties determined by VA. An individual assigned to another position may not be placed on administrative leave. Appeals from removals or transfers, to be initiated within 7 days, must be adjudicated by MSPB administrative judges with 21 days from the appeal. Judges' decisions are final and not subject to further appeal, including, apparently, judicial review in the Federal Circuit. If the judge cannot decide the case in 21 days, the removal or transfer is final and the MSPB must report to Congress why it could not meet the adjudication deadline. The MSPB has two weeks from the statute's enactment to establish review procedures and to report on those procedures to Congress.

No doubt there will be a few legal challenges to the statute. Whether a post-removal hearing process for removal of an SES member meets constitutional due process will occupy considerable attention if VA uses the statutory authority. The statute does not bar VA from establishing internal notice and reply procedures prior to removal of an SES member. Statutory empowerment of MSPB administrative judges, whose positions are not established by statute, raises an interesting issue for the Board of how it deals with its own internal organization, but that is not a matter of constitutional proportions. Limitation of judicial review in the Federal Circuit will likely lead to Administrative Procedures Act review in district courts and regional circuit courts of the issues arising from removal of a VA SES member. And doubtless there will be other interesting issues arising in the context of related EEO complaints and Individual Right of Action whistleblower complaints (the new statute apparently precludes judges from issuing stays of removals or transfers). From newspaper accounts, the MSPB apparently wrote to the White House expressing concerns over the statute.

See Senior Executive Service Legal Guide by Broida and Davis.

.

VISIT US ONLINE AT
www.deweypub.com
.
    SecurityMetrics for PCI Compliance, QSA, IDS, Penetration Testing, Forensics, and Vulnerability Assessment