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.

EEOC Calls for Comments on Improving the Federal Sector EEO System

Ever wondered about the federal sector EEO process and how it could be improved? Here's your opportunity to voice concerns and suggestions. EEOC issued an advance notice of proposed rulemaking requesting comments concerning the federal sector EEO complaint process-seeking suggestions on how the process can be more efficient,"user-friendly," and effective in identifying and redressing prohibited employment discrimination. Begin the comment process by accessing the government's rulemaking portal at www.regulations.gov, typing EEOC into the search bar and locating the advance notice. Some of the questions put out for comment include:

What current elements of the process should be contained in a newly-designed process;

What current elements should be removed;

Whether agency personnel should investigate complaints against the agency or whether EEOC investigators should conduct all investigations;

Whether the hearing stage should be retained;

Whether the hearing should continue as an adjunct to the investigation or whether it should be adversarial as at MSPB;

What should the timelines be for the initiation of counseling and the filing of a complaint;

What should the review standard at EEOC be when there has been a hearing or when there has been no hearing; and

What enforcement mechanisms should be used by EEOC to ensure agency compliance when discrimination is found?

New GAO Report on Probationary Appointments

Check out another report on the federal sector, from GAO in February 2015: "Improved Supervision and Better Use of Probationary Periods are Needed to Address Substandard Employee Performance." if the GAO recommendations were followed there would be fewer MSPB appeals.

Laffey Rates Have Arrived or Nearly So, at the MSPB

For lawyers practicing in the DC Metro area, as a result of a civil rights class action lawsuit years ago, the Justice Department adopted a scale of hourly rates for counsel fees that are considered reasonable, based on years of experience of counsel, for civil rights cases. The Laffey Matrix is familiar to those involved in either side of federal sector civil rights litigation. With the decision of Caros v. DHS, 2015 MSPB 16 (2/23/2015), the Board indirectly approved structured fee agreements based on Laffey rates even without a finding of discrimination. The lawyer can establish a Laffey rate by setting a lower hourly rate, e.g., $300 per hour, if the client agrees to pay that rate but also agrees to pay the higher, Laffey rate, e.g., $500 (depending on years of experience) if the client states in the retainer agreement that the client is responsible for paying the higher rate should the case settle or if the client prevails in the litigation. Compare the Caros case, precedential, where the fee agreement did not quite meet the Board's standards to warrant Laffey rates, with a nonprecedential decision discussing how a fee agreement was structured on a tiered level to warrant payment of the Laffey rates. Tanner v. Dept. of Defense, DC-0752-12-0209-A-1 (Nonprecedential 8/1/2014).

Post Removal Evidence of Recovery From Medical Condition

An agency removes an employee for medical inability to perform a position, the employee appeals, and the case eventually comes to hearing. What happens if the employee recovers by the time of the hearing? Assuming the agency proves that the employee could not perform essential functions at the time of the removal, the Board accepts evidence of recovery, and can then reverse the removal if recovery is established. Under Sanders v. DHS, 2015 MPSB 7 (Jan. 15, 2015), and Wren v. Dept. of Army, 121 MSPR 28 (2014), the post-removal evidence must clearly and unambiguously demonstrate that the appellant recovered during the pendency of the appeal to the extent he can perform the essential functions of his position. Medical evidence is probative if it is provided by medical professionals who are experienced in assessing the type of work performed by the appellant and if those professionals specifically address medical findings that supported the earlier conclusion that the employee could not perform essential job duties.

Report From the Office of Personnel Management:

New Recruitment and Appointment Initiatives

OPM intends to help agencies with recruitments and appointments. According to a recently-released report "The U.S. Office of Personnel Management's Recruitment, Engagement, Diversity, and Inclusion (REDI) Strategy," OPM plans to:

Improve the effectiveness of the Pathways program by further developing the necessary resources to educate hiring managers, human resource professionals, academic partners, and potential applicants about the program. This effort includes:

Pathways toolkit for hiring managers and HR professionals;

A handbook for Pathways program officers;

"Easy-to-digest" Pathways videos for hiring managers, academia, and prospective applicants on select Pathways topics;

In the Senior Executive Service, eliminate any barriers to attracting diverse executive talent, and pilot new approaches, including: "streamlining the application process by piloting and potentially implementing new recruitment and assessment approaches, such as resume-based applications." and

Develop "partnering with agencies on SES candidate development programs to attract and develop candidates for the SES across government."

Establish a government-wide framework with a focus on the skills related to employee engagement. Some examples: Supervisory Training Framework and Guidance that outlines training for aspiring leaders; a Managerial Development Framework and Curriculum for managers; and a partnership with academia to draft an OPM Leader Development Matrix, based on the most up-to-date research in leadership and executive development.

Encourage agencies to partner with their labor unions at the national and local level to promote engagement. The CHCO Council and the National Council on Federal Labor- Management Relations have begun a joint initiative to identify and catalogue effective employee engagement practices.