September 28, 2007

Restroom access case is costly to SSA

By Melissa Harris | Baltimore Sun reporter

A lot of people have done it - used the handicapped restroom stall at work when others were available. But the bad manners usually don't cost an employer thousands of dollars.

An administrative judge awarded a Social Security Administration employee who uses a wheelchair $6,500 in damages this year after nondisabled co-workers occupied the handicapped stall and caused the employee to urinate in his pants on three occasions.

The agency, Administrative Judge Laurence Gallagher ruled, discriminated against the Woodlawn-based worker by not doing enough to prevent the humiliation after he complained several times and resorted to bringing a change of clothes to work.

The agency has appealed Gallagher's decision to the Equal Employment Opportunity Commission and declined to comment on the case.

The complainant's manager did post several signs outside restrooms that included the universal symbol for the disabled - an individual in a wheelchair - and the words "Please be Considerate" above the symbol and "Persons with Disabilities Need Access to this Facility" below it.

The agency also showed a video to workers on being courteous to the disabled, but it did not address restroom etiquette.

Discrimination occurred because the agency did not instruct workers to "refrain from using the wheelchair-accessible stalls if they were not disabled, or did not have a compelling reason to do so," Gallagher wrote in a May 2006 bench decision. "That was the minimum that would have been required in this case, simply an e-mail or a directive memo addressed to the employees."

The worker's attorney, Phillip R. Kete, said that his client would knock on the door of the handicapped stall when it was in use and let the occupant know that he was waiting and could use only that stall. Depending on the urgency, the worker would then roll his wheelchair to another restroom.

"Usually, it would be empty. But sometimes it wouldn't be, and that's when accidents occurred," said Kete, who represents the agency's union.

The Sun is withholding the name of the worker to protect his privacy.

Barbara Pachter, an expert on business communication and author of the book New Rules @ Work, said that the judge's decision resulted from managers not being specific about the problem and its effect.

"You have to tell people that what they're doing is wrong," she said. "Tell them, 'Because you are using the handicapped stall, someone was unable to use it and had an accident.' Unless you do that, it doesn't dawn on them that when they're using [the stall], they're causing a real problem."

Although Gallagher's damage award decision in April cited a few cases in which managers put disabled workers in environments without any handicapped-accessible stalls, an advocate for the disabled and a business etiquette expert said they had never heard of a case about access to an existing stall.

"I don't know of any case like this, but I do know that people with disabilities face a myriad of barriers to employment, many of which could be very easily removed with simple adjustments," said Virginia Knowlton, executive director of the Maryland Disability Law Center.

Ann Marie Sabath, who owns a corporate etiquette training firm, said that no faux pas was committed.

"If a nondisabled person sees a disabled person waiting or coming down the hall and still goes into the handicapped stall, well that's unacceptable and rude," she said. "But other than that, all is fair in love and war and your choice of restroom stalls."

Sabath said she frequently uses airport handicapped stalls when she's alone so that she can keep her luggage with her.

"I have a book called One Minute Manners, Quick Answers to the Most Awkward Situations You'll Ever Find At Work, and if I would have known about this, it would have been in there," she said

September 19, 2007

TSA DIRECTIVE IN VIOLATION OF EEOC REGULATIONS, SAYS AFGE

New policy doesn’t change need for collective bargaining, union argues

(WASHINGTON)—As the only union to represent Transportation Security Administration workers since the agency’s inception, the American Federation of Government Employees is highly disappointed and appalled at a new TSA directive on employee representation.

TSA Management Directive No. 1100.63-3 establishes TSA policy on “employee designation of a representative to assist in the preparation and presentation of grievances …”

“TSA’s policy allows for representation in connection with participation in the EEO process.  However, if an employee’s designated representative is also a TSA employee, the directive limits the amount of official time to be granted to the representative to eight hours,” AFGE National President John Gage said. “According to TSA’s policy, ‘any additional time will be charged as annual leave, compensatory time off, or LWOP.’ This policy significantly limits the official time afforded by EEOC’s regulations, which do not limit the amount of official time an employee representative may be granted, except to say that official time must be reasonable.”

According to EEOC guidance, “reasonable is defined as whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond.” 

“In FY03, almost 50 percent of the nearly 1,500 EEO complaints filed by DHS employees were by TSA workers. In that year, the average processing time from the date the complaint was filed to closure was 939 days,” Gage said. “With TSA’s absurd restriction of time to eight hours, it unilaterally established a policy that restricts the rights of, and sets up road blocks for employees who wish to pursue their civil rights under law.

“Furthermore,” he added, “with this order, TSA is trying to give the appearance of allowing TSOs workplace rights, which couldn’t be further from the truth. If anything, this directive puts more restrictions on TSOs, and only adds insult to injury.

“In hearing from the almost 5,000 TSOs who are AFGE members, in addition to thousands more, it is clear that policies are not a replacement for collective bargaining agreements,” Gage said. “The issues faced at TSA—attrition, injury rates, EEOC complaints—are incomparable compared to other government agencies, at which employees have bargaining agreements. TSA needs to end its policy of public window dressing and admit the need for collective bargaining.”

 

September 19, 2007

Defense labor relations reforms waiting on Congress

By Brittany R. Ballenstedt

Source: GovExec.com

The Defense Department is holding off on implementing the labor relations portions of its new personnel system, at least until pending legislation that could affect the system is completed, a top personnel official said Tuesday.

Mary Lacey, program executive officer for the National Security Personnel System, said the department will not move bargaining unit employees into the system until Congress makes up its mind about pending legislation that could defund or repeal portions of NSPS. She made her remarks at the HRGov human resources conference in Morgantown, W.Va.

"We are waiting to see what this Congress does with the bills we are hoping will be passed in September and October before we decide what to do," Lacey said.

She cited the House and Senate versions of the fiscal 2008 Defense authorization bill, both of which include provisions that would repeal the Pentagon's authority to limit collective bargaining. Last month, the House approved a bipartisan spending bill amendment that would block funding for the labor relations aspects of NSPS.

"We're pretty sure Congress is going to take away the authority to make any changes to labor relations," Lacey said, "so why would I rush to implement this . . . only to see that four to five weeks later that authority would go away?"

The department will have the ability to limit collective bargaining once an appeals court issues a mandate stemming from a May ruling that the law creating NSPS grants the agency temporary authority to curtail employee bargaining rights. The American Federation of Government Employees, one of the unions in a coalition that brought the lawsuit against NSPS, is considering a solo effort to challenge the appeals court's decision before the Supreme Court.

Last week, the National Federation of Federal Employees, another union in the coalition, characterized the delay in implementation as a responsible move.

"It would be unfair to make collective bargaining agreements null and void when restoration of bargaining rights is very likely to be [granted] by Congress in the coming months," NFFE President Richard Brown said. "Waiting to see how the legislation pans out is the responsible thing to do."

Lacey told Government Executive in a separate interview that the department also is in the process of hiring an executive director for labor management and employee relations, a position that has been vacant for about five years. The new director will be responsible for advising the department on labor relations and negotiating with unions, she said.

"Some new blood on DoD's labor relations team is probably a good thing," Brown said. "We encourage the agency to choose a person that will reach out to the unions and hear concerns coming from the rank and file Defense workers. The workers deserve a real opportunity to help shape NSPS."

Meanwhile, Lacey reiterated that the department is not out to severely limit collective bargaining and employee rights. "The unions bring an important voice to the table," she said. "They have a perspective that needs to be taken into account."

Still, she noted that Defense employees are members of more than 1,500 local bargaining units, adding complexity. If Defense Secretary Robert Gates were to make a change that departs from the way the rest of the government operates, for example, that change currently would be subject to bargaining, she said.

"We want the ability to move forward and not bargain 1,500 times every once in a while on some things," Lacey said. "There's not a lot of gain in having 1,500 different versions of a system."

Lacey said that the Pentagon is fully willing to bargain under Chapter 71 rules, which govern labor-management relations for federal employees, though there are certain policies the department would prefer to negotiate on a national level. For example, she noted that there are only so many ways to negotiate policies like those for drug testing, adding that there are no drug policies agreed to uniformly across the department.

"If we can get to an agreement on a national level on core elements and then just do local bargaining for local implementation, I think it would save everybody a lot of resources," she said.

According to NFFE, many unions have submitted proposals to the department on such national-level issues. "Our union has never been opposed to national-level bargaining or other similar common sense reforms," Brown said.

But Lacey added that there are certain things the department does not want to have subject to bargaining, such as the setting of pay scales. "That can upset the equity across the department," she said.

Lacey noted the department is still intent on advancing the collective bargaining portions of NSPS. "Assuming we get things worked out with the Hill, we will move forward with the bargaining portions," she said. "But we're still a long way off from doing that."

Currently, 110,000 nonbargaining unit employees have been converted to the new personnel system. The department plans to bring an additional 90,000 into the system at the beginning of fiscal 2008, with another 70,000 coming in March. Eventually, the system is slated to encompass 700,000 civilian employees.

September 14, 2007

Pay reform means smaller raises at DoD

By TIM KAUFFMAN
Source: Federal Times.com

Many of the 110,000 Defense Department employees covered by the new performance-based pay system won’t be getting the raise they think they will in January.

That’s because Defense Secretary Robert Gates has decided not to award them the same across-the-board, cost-of-living pay raise that other federal employees will receive. In 2008, that raise is expected to be 3.5 percent.

Instead, employees covered by the National Security Personnel System (NSPS) will get an across-the-board raise half that size. The money that would normally pay for the other half of that raise will instead go into a separate pot to fund performance-based pay increases.

Pentagon offices were notified early this week of the decision, which comes as a shock to many employees who were told they would receive their normal across-the-board pay raise in January plus an additional performance raise.

“We had been told all along [that] those moved into NSPS early [this year] would get the full cost-of-living raise,” said an Army Corps of Engineers employee who asked not to be identified. “They have changed their minds.”

Most employees haven’t completed a full year under NSPS, meaning some may see an adverse impact on their pay as a result of appraisals that do not reflect a full year’s work.

During mock exercises this spring to test the performance-appraisal and pay-setting process, offices were told to exclude the general pay raise from the calculation. Many assumed, erroneously it turned out, that this was because the full pay raise would be distributed to all employees, just as it was this year.

In a set of questions and answers distributed to offices, the Pentagon acknowledges that employees were told to expect the full pay raise in January and that it now appears officials have changed their minds. However, officials simply had not decided at that point how to address the governmentwide increase, the Pentagon says in response. It is at the secretary’s discretion each year whether to include any or all of the base pay raise in the pay pool used to set performance-based increases.

“The department now has broader experience with a pay-for-performance system than it had when first implementing NSPS,” the Pentagon said in the questions and answers it distributed throughout the department. “Based on our experience with the first performance cycle under NSPS, department leadership is ready to take this incremental step with a more robust pay-for-performance system.”

How the 2008 raises will work

Under the new payout, employees performing above the unacceptable level will receive half of the base pay raise given to General Schedule employees, plus the full locality increase that goes to all employees. The remaining half of the base pay raise will go into the performance pay pool.

It’s uncertain at this point how much of a guaranteed increase Defense employees under NSPS will receive. If Congress approves a 3.5 percent increase, as appears likely, it will be up to the White House to determine how much of that increase will be divided between an across-the-board raise and a locality increase.

Assuming the base raise is set at 3 percent, NSPS employees rated above unacceptable would receive half of that, or 1.5 percent, plus the 0.5 percent locality raise that will vary based on where employees work. The remaining 1.5 percent would be added to performance pay pools and distributed based on individual performance.

By carving out part of the across-the-board pay raise for performance increases, some employees rated as valued performers — a 3 out of 5 — could end up receiving a smaller pay raise than they would have under the General Schedule, depending on how the performance raises are allocated.

Last year, 97 percent of the 11,000 employees who had been evaluated at that point under NSPS received either a performance-based pay raise or bonus, or both, in addition to the across-the-board pay raise.

Pentagon employees not under NSPS will continue to receive the full increase that goes to other General Schedule workers. In addition, about 90,000 employees who will be transferred to NSPS in November also will receive the full 3.5 percent across-the-board raise.

Labor-management changes on hold

So far, personnel rules changes under NSPS have been limited to pay and performance appraisals affecting nonunion employees.

That’s because of opposition from unions and some lawmakers to other changes concerning how disciplinary actions and labor-management disputes are handled.

Although the department won a key victory in a federal appeals court recently that upholds the planned changes to the department’s labor-management rules, the Pentagon disclosed on its Web site Sept. 11 that it has “no plans to implement the adverse actions, appeals and labor relations portions of NSPS at this time.”

Union leaders have been worried that the department would push forward with the new rules, which were upheld in an appeals court ruling but continue to face stiff opposition from unions and an uncertain future in Congress.

Richard Brown, president of the National Federation of Federal Employees, said the Pentagon likely is holding off until Congress completes its work on the fiscal 2008 Defense authorization bill.

The House-passed version of the bill would prevent the department from curbing employees’ collective bargaining rights or overhauling the process used to appeal adverse or disciplinary actions. The Senate’s version, which hasn’t been approved by the full Senate yet, would restore collective bargaining rights and exempt blue-collar workers from the system, although it doesn’t address the appeals process.

“I believe they are doing the right thing in holding off implementation for a while,” Brown said in a statement. “It would be unfair to make collective bargaining agreements null and void when restoration of bargaining rights is very likely to be restored by Congress in coming months. Waiting to see how the legislation pans out is the responsible thing to do.”

The House measure would not prevent the Pentagon from transferring employees from the General Schedule to a performance-based pay system, although the Pentagon first would have to negotiate terms of such a move with unions.

The Pentagon said it has no plans to move any union employees into NSPS in 2008. The department plans to move 90,000 nonunion employees into the system next year, however, which would bring the total number of employees under the new pay rules to 200,000. Ultimately, the system could cover roughly 650,000 employees.