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MSPB Issues a Report
Veteran Hiring in the Civil Service: Practices and Perceptions
Congratulations and thanks to the Board's Office of Policy and Evaluation for its timely and informative report on veterans preference laws and hiring processes within the competitive and excepted service. This report should be read by every attorney and personnel specialist who is responsible for determining veterans preference issues and presenting or defending VEOA cases before the Board. With citation to statutes, regulations of OPM, and cases from the courts and the Board, this Report should be on your reference shelf. Here's the table of contents in pertinent part:
Chapter One: Introduction
Defining a Veteran
Chapter Two: Veterans' Preferences in Hiring for Competitive Service Positions
The Rule of Three
Additional Competitive Examining Provisions for Veterans
Veterans Applying for Competition that is Internal to the Government
Veterans Recruitment Appointment
Thirty Percent Disabled Veterans Appointment
Certified from a Training Program
Chapter Three: Veteran Hiring in the Excepted Service
Examples of Agency-Based Statutory Hiring Authorities
Examples of Position-Based Regulatory Hiring Authorities
Other Excepted Service Hiring Authorities
Chapter Four: Perceptions Regarding Veteran Hiring
Federal Employee Perceptions of Improprieties
Department of Defense Employees' Perceptions
Human Resources Perceptions
Hiring Practices Strategies
Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense
The report can be found through the link at mspb.gov/publicaffairs/publicaffairs.htm
EEOC Issues a Report
Preserving Access to the Legal System: a Practical Guide to Providing Employees with Adequate Information about Their Rights under the Federal Equal Employment Opportunity (EEO) Laws and Regulations
Found at eeoc.gov/federal/preserving_access.cfm the EEOC provides thirteen steps agencies may take to inform federal employees of their legal rights under the EEO programs generally administered by EEOC. Discussed, among other suggestions, are use of agency websites, town hall meetings, and use of intranet pages.
The Dewey Publications Podcast
Dewey now offers a free 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.
This week Peter Broida discusses six cases:
September 2nd, 2014
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- Rassenfoss v. Dept. of Treasury, 2014 MSPB 68 (Aug. 22, 2014): USERRA: escalator clause applies to benefits that would have been earned to a reasonable certainty, overruling prior law precluding application of the escalator clause to discretionary benefits.
- Putnam v. DHS, 2014 MSPB 70 (Aug. 27, 2014): a retirement does not become involuntary because it follows on the heels of an indefinite suspension caused by a clearance suspension.
- Camacho v. Dept. of Army, SF-0752-10-0967-I-4 (NP Aug. 25, 2014): reaffirming the law that an appropriate accommodation for a disability will rarely if ever include a switch in supervisors.
- AFGE Local 2571 and VA Waco Regional Office, 67 FLRA 593 (Aug. 28, 2014): an employer's negligence constitutes the lack of good faith necessary to require liquidated damages as a component of an FLSA overtime pay award.
- SSA, ODAR and AFGE Local 3506, 67 FLRA 597 (Aug. 28, 2014): arbitrator's direction of a retroactive promotion in part based on a contractual procedural violation: to overcome the award on a management rights theory, the agency must show not only that the contract provision relied upon by the arbitrator constitutes a violation of management rights, but that the provision was not negotiated as an exception to management rights as either a procedure or an arrangement (impact bargaining).
- NTEU v. FLRA, ___F.3d___ (D.C. Cir. June 17, 2014): for employees in the competitive service, the union does not have the right to have a representative present at an OPM suitability investigation of an employee, even if the OPM inquiry is delegated to agency management to conduct.
September 2nd, 2014
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Union Representation at OPM Suitability Investigation Interviews?
Not required, according to the D.C. Circuit's decision in NTEU v. FLRA, No. 12-1199 (June 17, 2014), at least for competitive service employees. And it does not matter if the suitability inquiry is delegated to the agency or if the agency assists OPM by ensuring employee attendance at interviews. OPM is not the "employer," holds the court, and the right to representation at formal interviews or investigations only extends to inquiries conducted by the employer.
Arbitration Awards and Management Rights Exceptions
Management Needs to Show Not Only Infringement but the Lack of a Proper Purpose Behind the Procedural Provision Enforced by the Arbitrator
Unions bargain for procedures on all sorts of things: overtime distribution, leave administration, selection of employees for training, performance appraisal, and selection of employees for promotion. Ensuring arbitration awards are then challenged through exceptions to FLRA as providing remedies that violate management rights to assign work, approve or disapprove leave, train or not train employees, or select employees for appointment to positions that are competed. The Authority now holds if management excepts to an award that enforces a procedural provision, the agency must show first, that the remedy violates management rights under 5 USC 7106 and, second, that the procedural provision applied by the arbitrator was not negotiated as a procedure or arrangement constituting an exception to statutory management rights. How does management prove the second component? The Authority did not say. SSA, ODAR and AFGE Local 3605, 67 FLRA 597 (Aug. 28, 2014) (dissent by Member Pizzella).
Watch Out for Claims for Employment Benefits Likely Accrued By Employees but for Period of Military Service
Managers need to know that the MSPB ruled that Department of Labor regulations implementing USERRA require management to provide benefits, e.g., a quality step increase to employees out on military leave, if it is reasonably certain, based on the employee's past work history, that the employee would have received the benefit had he remained in the civilian workforce. Over the dissent of Member Robbins, who argued that OPM and not DOL regulations should govern the grant of a QSI based on a performance rating that was never created for the absent employee, the Board majority overruled prior law holding that USERRA did not require a grant of discretionary benefits to employees on military leave. Rassenfoss v. Dept. of Treasury, 2014 MSPB 68 (Aug. 22, 2014) (Member Robbins dissenting).
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