Friday, November 2, 2018

Employment Agreements and Post-Employment Compensation in Maryland

Issues in employment agreements affect both current and future employee rights. Previously, we looked at the growing trend by employers to use language restricting potential claims by inserting a provision into Maryland employment agreements shortening the statute of limitations. Employees also must be aware of the perils which could eliminate the receipt of expected post-employment compensation.

Recently, in Brian Blood v. Columbus US, Inc., the Maryland Court of Special Appeals ruled that an employee’s right to receive payment from a non-compete clause was not a “wage” and could not be considered compensation for work performed prior to termination under Maryland’s Wage Payment and Collection Act (“Wage Payment Act”). The decision suggests that these kinds of agreements be drafted with care.

This dispute arose between Blood and his former employer, Columbus. On January 4, 2004, the parties entered into a Vice President Contract which contained the following provisions:
10.4 In exchange for clause 10.1 excluding 10.1a limitation (ref. Appendix 2), the
Company shall pay remunerations equal to 100% of the VP’s fixed salary, as stated in
Appendix 2, upon the Company’s termination of the [VP’s] Contract. The remuneration
shall be paid in equal monthly installments over the period in which the non-competition
clause applies.

10.4a In exchange for clause 10.1 incl. 10.1a (ref. Appendix 2), the Company shall pay
remunerations equal to 50% of the VP’s fixed salary, as stated in Appendix 2, upon the
Company’s termination of the [VP’s] contract. The remuneration shall be paid in equal
monthly installments over the period in which the non-competition clause applies.

Blood resigned from his position on December 1, 2015, thereafter asserting a lien claim for unpaid wages. The Maryland Lien for Unpaid Wages does not define the term “wage.” Consequently, the Court of Special Appeals used Maryland’s Wage Payment Act and its definition of “wage” as guidance, as well as caselaw holding that a right to compensation vests only when an employee “ha[s] performed all the work necessary to earn the [compensation] before termination.” Medex v. McCabe, 372 Md. 28, 37 (2002) (“it is the exchange of remuneration for the employee’s work that is crucial to the determination” of whether the compensation is a “wage”). Only if Blood’s remuneration was in “exchange” for work performed before termination, or as a result of employment, would it would fall within the scope of the Wage Payment Act.

Analyzing this case in light of prior holdings (Aronson & Co. v. Fetridge, 181 Md. App. 650 (2008) and Stevenson v. Branch Banking and Trust Corp., 159 Md. App. 620 (2004)), the issue focused on the “[i]n exchange for” contractual language. The Court of Special Appeals ruled that the Vice President Contract was a disqualifying quid pro quo agreement and that the unmade payments were not compensation that vested during Blood’s employment, but rather, vested and accrued after employment. Of further importance was the lack of a deferred compensation account created contemporaneously with the promise not to compete (i.e.: during employment) that existed in Aronson and which was determined annually in that case during employment.

The Blood decision offers another reason for an employee to carefully review and understand an employment agreement. To be safe, post-employment remuneration should be structured such that the payment is in “exchange” for work performed before termination or as a result of employment. Payment on a quid pro quo basis with a non-compete provision must be avoided.

Often, a decision to retire or change jobs is made with the financial expectation of continued “wages.” Don’t find out too late that your expectation is wrong.



Written by Marc E. Pasekoff.



This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Thursday, October 25, 2018

Out of the Closet, Out of the Woods? LGBTQ Workers Can’t Get a Straight Answer

For the LGBTQ community, “coming out” is a big deal—that’s no secret. What is not as widely recognized, however, is that coming out is rarely a one-time event. In reality, every day has the potential to be yet another Coming Out Day. Figuring out whom to tell, and when to do so, can be a complex, strategic undertaking with very real consequences. And, after the more obvious assessment of family and friends, some of the most complicated questions you might have to face are, “Should I come out to my coworkers?” or “Should I come out to my boss?”

According to a recent study by the Human Rights Campaign, 46% of LGBTQ workers are “closeted at work.” This is in stark contrast to the 28% of LGBTQ workers who are “not open to anyone in their lives.” For those who confront that decision, these numbers more than make sense. The workplace is where many adults spend at least half of their waking hours and is quite literally the means by which we meet our basic needs. The possibility that honesty can compromise your livelihood is daunting, to say the least.

Unlike many other classes impacted by biases in the workplace—race, religion, age, national origin, disability, etc.—workplace protections for LGBTQ workers depend more and more on where you live. Under the Obama administration, the EEOC agreed that Title VII provides protection on the bases of sexual orientation and gender identity. Yet more recently the Department of Justice has gone so far as to file a brief in opposition to the EEOC in Zarda v. Altitude Express, Inc., a Second Circuit case which ultimately held that the employee was protected by Title VII. Zarda has been appealed to the Supreme Court, though the Court has not yet decided whether to hear the appeal.

Further evidence of a shift in the availability of protection for LGBTQ workers is the recent revelation of a Health and Human Services memorandum that, according to the New York Times, proposes to “define sex as either male or female, unchangeable, and determined by the genitals that a person is born with,” and “[a]ny dispute about one’s sex would have to be clarified using genetic testing.” This attempt to eviscerate protections for transgender individuals at the most fundamental level is in stark contrast to the Occupational Health and Safety Administration’s (“OSHA’s”) best practices memorandum that explains in detail that “[g]ender identity is an intrinsic part of each person’s identity and everyday life” and that “authorities on gender issues counsel that it is essential for employees to be able to work in a manner consistent with how they live the rest of their daily lives, based on their gender identity.” These two positions are in direct conflict, which creates even greater uncertainty for workers and sends mixed messages to employers.

Federal protections under Title VII are almost as unpredictable, resulting in an unstable circuit split bound to reach the Supreme Court’s attention. In the meantime, just under half of states and the District of Columbia provide legal protections for workers based on sexual orientation and gender identity, and labor contracts work hard to make up the difference. Does it matter? Just like the decision of whether to come out to Great-Aunt Mimi, the answer will be different for everyone. In the end, it’s a personal decision. Legal protections do not eliminate discrimination, but they do provide recourse.

Generations before ours fought to make this conversation possible. If you are experiencing workplace discrimination and you live in a jurisdiction that provides legal protections, consider those options. If you are experiencing workplace discrimination and you do not live in a jurisdiction that provides legal protections, every day is an opportunity to try to turn the tide. The important thing to remember is that even if 46% of us don’t want to admit it, you’re not alone.

If you think you are being discriminated against in the workplace based on your sexual orientation or gender identity and want to know what your legal options are, please don’t hesitate to give KCNF a call, at 202.331.9260.



Written by Elisabeth Baker.



This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.




Wednesday, September 26, 2018

Is reassignment a "reasonable accommodation" and why is it called the last resort?



An unfortunate aspect of the human condition is that we get sick. Sometimes, over time, those illnesses or injuries can become physical or mental impairments that substantially limit an individual’s ability to do things he or she used to be able to do. If you are a federal employee and you develop a herniated disk, post-traumatic stress disorder, multiple sclerosis, or another chronic medical condition, the law requires your agency to provide you with a reasonable accommodation, unless doing so would create an undue burden on the agency. 29 U.S.C. § 791. Once you inform the agency of your disability, it must collaborate with you to determine the essential functions of your job and your limitations in performing those duties. Examples of reasonable accommodations include, but are in no way limited to, ergonomic desk chairs, speech recognition software, situational telework, and handicap accessible hotel rooms during work travel.

An employee may request a particular accommodation, but the agency is not required to provide that specific accommodation, as long as the accommodation it does provide is effective. Similarly, an employee may not reject an accommodation that is reasonable. Federal employees can file an EEO complaint claiming a failure of accommodation. It is worth remembering that the EEOC cares only whether the employee was offered a reasonable accommodation: if not, the Agency may be liable. If the Agency did offer reasonable accommodation and the employee declined it, however, the employee is likely to lose.

The goal of reasonable accommodation is to enable the employee to perform his or her essential duties. If there is no accommodation that will achieve this goal, the Agency is required to consider reassignment. Reassignment is referred to as the accommodation of last resort because an agency is only required to offer it after considering all other possible accommodations and determining that none would be effective. Because the agency is in the best position to know which jobs are vacant, it is obligated to inform the employee about vacancies for which he or she may be eligible for reassignment. Additionally, the employee must be qualified, in other words, have the qualifications and experience to perform the duties of the reassigned position with or without accommodation.

Questions about reassignment, those offered and those not offered, pose particular legal problems for employees and agencies alike. A review of EEOC decisions from the past couple years discloses what the Commission considers important in cases involving reassignment. Federal sector employees and their attorneys should keep these factual scenarios in mind when defining claims and conducting discovery.

Because reassignment is the accommodation of last resort, the Agency must first consider if any other accommodation would allow the employee to perform his or her current job. In Hertha W. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162648, 2018 WL 1181115 (Feb. 22, 2018), the Agency eventually reassigned the complainant, a medical technician with severe hearing loss in both ears, to a position which did not require her to assist in surgeries. Before the Agency reassigned her, however, it tested an assistive listening device (ALD) in the surgical lab, and determined that the complainant missed about half of the instructions she was given through the ALD. The complainant was displeased with the ultimate transfer to a lower grade position, but the EEOC held that, because the tests showed the ALD was not an effective accommodation, the agency properly considered reassignment as a reasonable accommodation of last resort.

When an agency reassigns an employee, it must make sure the reassignment is to a position which the employee is qualified to perform with or without accommodation. The reassignment may be to a position with lower pay, but only if there are no equivalent vacant funded positions to which the employee could have been reassigned. In Victor S. v. USPS, EEOC Appeal No. 0120160739 (Oct. 18, 2017), the agency reassigned a full-time mail processing clerk with degenerative joint disease to a city carrier position after his facility closed. When he submitted medical documentation regarding his limits on lifting and walking, the agency instead offered him a part-time sales position at a location 48 miles away. Since the offered part-time position was not equivalent to the complainant’s clerk position -- in pay or status -- and because the record showed that there was at least one clerk position at a closer facility to which the agency could have reassigned the complainant, the EEOC held that the agency did not satisfy the its Rehabilitation Act obligations.

Finally, while reassignment is a reasonable accommodation, “in most circumstances,” a change of supervisor is not. See Mitchell v. Labor, Appeal No. 01201005552012, slip op. at *5 (February 9, 2012). The EEOC rarely approves a change in supervisor as an accommodation. In Davina W. v. Dep’t of Treasury, EEOC Appeal No. 0120160978 (June 29, 2018), the complainant suffered from anxiety that was exacerbated by her interactions with her supervisor. She informed the agency of her condition and asked to be reassigned. The EEOC determined that her request for reassignment was essentially a request to change her supervisor, and that agencies are not required to provide a different supervisor as a type of accommodation. According to the EEOC, because the agency was not obligated to provide the complainant with a reassignment away from her supervisor, the agency did not err in denying her requests for reassignment.

If you believe you are entitled to accommodation of a disability that may require reassignment, you should seek legal from a law firm such as Kalijarvi, Chuzi, Newman & Fitch, P.C.

This blog post is an adaptation of a paper prepared for the upcoming Changing Currents in Employment Law CLE offered by the District of Columbia Bar Association. To register to attend the presentation (in person or via webinar) and to learn more about recent developments in federal sector employment law, please visit dcbar.org.



Written by Sarah Martin.



This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Tuesday, September 11, 2018

So, You’re a Whistleblower: What Relief Are You Entitled To?


An employee who blows the whistle on her employer is naturally wary of retaliation. Will she be isolated? Will her duties be diminished? Will her supervisor start micromanaging her work? Irrespective of any whistleblowing activity, federal employees may appeal certain personnel actions directly to the Merit Systems Protection Board (“MSPB” or “Board”): removals, suspensions over 14 days, reductions in grade or pay, furloughs for 30 days or less, denials of within-grade salary increases, reduction-in-force actions, and denials of restoration or reemployment rights.

The Whistleblower Protection Act, however, provides additional protection to whistleblowers by adding the right to file an individual right of action (“IRA”) appeal with the Board. IRA appeals are available for all adverse personnel actions, whether or not the action is directly appealable to the Board. Whistleblowers can seek relief, for example, from retaliatory decisions about promotion, reassignment, a performance evaluation, a decision concerning pay, benefits, or awards, and “any other significant change in duties, responsibility, or working conditions.” Note, however, that “election of remedies” rules sometimes limit whistleblowers to the first remedy they sought. For actions that are directly appealable to the Board (including removals, demotions, suspensions over 14 days, and denials of within-grade increases), employees may elect only one remedy (direct MSPB appeal, OSC complaint, union grievance, or EEO formal complaint).

To obtain relief from the MSPB with respect to a personnel action that is not directly appealable to the Board, a whistleblower must first seek correction action from the Office of Special Counsel (“OSC”). If OSC chooses not to investigate or is unable to obtain full relief, a whistleblower can then appeal to the Board. The Board has the power to issue a decision on an appeal if the whistleblower can nonfrivolously allege that she engaged in protected activity under sections 2302(b)(8) or (b)(9) (i.e., that she did, in fact, blow the whistle), and that her protected activity was a contributing factor in the agency’s decision to take the challenged personnel action. At this threshold level, the whistleblower’s burden of proof—a nonfrivolous allegation—is intentionally light: the whistleblower’s allegations need only be more than conclusory and plausible on their face. But does the agency’s unilateral action to correct some or all of the retaliatory personnel actions identified by the whistleblower to OSC foreclose the whistleblower from appealing to the Board? And can the whistleblower obtain relief for being subjected to a hostile work environment resulting from her whistleblowing activity?

The answer to the first question is no. Specifically, the prospect of an award of damages (e.g., for pain and suffering) and attorneys’ fees precludes dismissal of certain actions as moot. If OSC is able to negotiate some, but not all, relief from the agency, the un-obtained relief can be raised with the Board for corrective action. For example, in the case of a whistleblower whose complaint is that the agency took away a majority of her duties in retaliation for her whistleblowing, if OSC negotiates restoration of the whistleblower’s duties, but the agency is unwilling to pay compensatory damages or attorney’s fees (assuming she is represented), the whistleblower can go to the Board to seek the remaining relief. Notably, however, the agency’s decision to unilaterally correct some or all of the personnel actions (alleged by the whistleblower to be retaliatory) is not an admission of guilt. Thus, prior to the Board awarding damages and fees on these personnel actions, the administrative judge must address the merits of the underlying actions, i.e., whether the whistleblowing activity was a contributing factor in the challenged personnel action.

The prospect of an award of damages and fees also precludes dismissal of a claim of agency delay in taking a personnel action, e.g., the agency’s delay in processing a monetary award (which was ultimately paid to the whistleblower). An agency’s deviation from the “usual manner” or the “normal procedures” for processing, e.g., a year-end monetary performance award may be considered in an IRA appeal by the MSPB. To ultimately prove the agency deviated from its normal processes, however, the whistleblower must demonstrate the alleged delay was unjustified or unexplained, thus resulting in a “significant change in working conditions.” A minor or trivial delay will not be considered “significant.” For example, an agency’s six-day delay in paying a whistleblower a cash award may be too minor to significantly change the whistleblower’s working conditions; a six-month delay, however, may. This determination rests on whether and to what extent the whistleblower has been harmed by the agency’s delay.

The answer to the second question—whether you can bring a hostile work environment claim under the WPA—is a resounding yes. Specifically, the Board has recognized that the creation of a hostile work environment is a personnel action for purposes of an IRA appeal to the Board because, if proven, it would be a “significant change in duties.” A “significant change in duties” is interpreted broadly to include any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system. For example, a hostile work environment may include: exclusion from team emails and meetings, hostile or disparaging statements from a supervisor, and increased or decreased work assignments. Including a hostile work environment claim—if it is appropriate—may result in significant relief beyond what may be available based on the personnel action at issue.

Thus, if you have blown the whistle and are facing retaliation in your workplace, it is important to understand what relief you are entitled to; including potential damages arising from a hostile work environment.


Written by Aaron Herreras.



This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Wednesday, September 5, 2018

Will AB 3080 make an Epic U-turn in California? Probably not.

On August 22, 2018, the California Assembly passed Assembly Bill (AB) 3080, which, prompted in part by the #MeToo movement in Hollywood, would prohibit mandatory arbitration of almost all types of employment law claims in California and prohibit non-disclosure agreements related to sexual harassment claims. Governor Jerry Brown must sign or veto AB 3080 by September 30, 2018.

If signed, AB 3080 would prohibit any employer from requiring an employee or applicant, as a condition of employment, to sign an agreement to “waive any right, forum, or procedure” for alleged violations of the California Fair Employment and Housing Act (FEHA) or the California Labor Code, among other things. The immediate impact of the Bill would be to prohibit employers from demanding that employees waive their right to sue the employer in court for claims of discrimination and/or sexual harassment and, instead, agree to mandatory arbitration.

Court cases alleging discrimination and harassment are presented to a jury made up of men and women, who decide whether the employee has been the victim of conduct at work and, if so, how much should be awarded in damages. A court decision can be appealed if one side or the other believes it’s wrong. An arbitration, on the other hand, is presented to an arbitrator, whose decision typically cannot be appealed. Cases brought in court are public, whereas sexual harassment claims resolved before arbitrators are done so privately. Employers strongly favor arbitration.

The Bill also prohibits an employer from retaliating against an employee who refuses to sign the waiver. While the Bill does not apply to a person registered with a self-regulatory organization, as defined by the Securities Exchange Act of 1934 (such as a stock exchange), the vast majority of employees in California will be covered. If signed, the Bill would extend much further than claims of sexual harassment, since it effectively prohibits mandatory arbitration clauses for any alleged violation under the FEHA or the state’s Labor Code. It would also become the first state law enacted after the Supreme Court’s May 2018 decision in Epic Systems Corp v. Lewis, which held that an employer’s class action waiver clause in an arbitration agreement with its employees was valid under the Federal Arbitration Act (FAA). The Bill’s enactment after Epic promises to relieve many employees in California of mandatory arbitration clauses they may have signed and, on the contrary, restore to them the right to be heard in court for nearly any employment-related claim against their employers.

But the terms of AB 3080 that outlaw mandatory arbitration agreements in the employment relationship may contravene Epic’s holding and rationale. AB 3080 makes no concession to the Federal Arbitration Act, which opponents of the bill argue preempts the effect of any state law to the contrary. As the Court reasoned in Epic, Congress enacted the FAA in 1925 to ensure that courts treated arbitration agreements as “valid, irrevocable, and enforceable.” Thus, even if some experts’ predictions that Governor Brown may sign the law turn out to be true, AB 3080 would be vulnerable to a challenge to its enforceability as preempted by the FAA. Whether a Supreme Court that believes the federal government is limited in the restrictions it can place on state sovereignty will defer to California in this instance remains to be seen.



Written by Puja Gupta.



This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Sunday, August 26, 2018

The “President Overstepped His Bounds” on Executive Orders

Early in the morning on August 25, 2018, U.S. District Judge Ketanji Brown Jackson struck down some of the more pernicious provisions of President Trump’s three executive orders meant to undermine federal-sector worker rights. Judge Jackson found that, although the President has authority to issue executive orders with respect to federal labor relations, “no such orders can operate to eviscerate the right to bargain collectively as envisioned” in the Federal Service Labor-Management Relations Statute.

The three orders at issue in the case were signed by President Trump three months earlier, on May 25, 2018, and they involved collective bargaining procedures, official time, and procedures for firing federal employees. The purpose of the Orders, as described by Judge Jackson, was to “guide agencies toward particular negotiating positions during the collective bargaining process; place limits on the activities that federal employees may engage in when acting as labor representatives; and address the approaches agencies shall follow when disciplining or evaluating employees working within the civil service.”

Shortly after the Orders were issued, a number of federal-employee unions filed lawsuits to block their implementation. According to the unions, Congress had enacted the Federal Labor Management Relations Act precisely to define the relationship between these unions and the government, and the President lacked the authority to alter the statute by Executive Order. Largely agreeing with the unions, Judge Jackson struck down many of the provisions, citing Congress’s pronouncements that the Statute establishes “the right of employees” to “bargain collectively . . . safeguards the public interest, contributes to the effective conduct of public business, and facilitates and encourages the amicable settlements of disputes in regard to the “conditions of [federal] employment.” As described in the decision, these rights cannot be rendered subordinate to the President’s conflicting policy choices.

Getting into the specifics of each Order, Judge Jackson explained that the collective bargaining order, officially called “Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining,” was an attempt to expedite bargaining negotiations, remove certain matters from the bargaining table completely, and require agencies to forego meeting for negotiations in certain situations. Looking to established case law, Judge Jackson found that “almost any attempt to shrink the otherwise generally accepted and traditional scope of bargaining rights under the [Statute] can quickly render such an effort suspect from the standpoint of the boundaries that Congress has constructed.” So, for instance, the Order’s effort to remove an agency’s ability to negotiate over permissive subjects of bargaining or placing arbitrary timelines on negotiations impedes the prospect of good faith negotiations. Allowed to stand, the Order would “dramatically decrease the scope of the right to bargain collectively, because, in the [Statute], Congress clearly intended for agencies and unions to engage in a broad and meaningful negotiation over nearly every “condition of employment.”

The official time order, titled “Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use,” tried to redefine, and limit, the extent to which federal employees may engage in union business during working hours and prohibit federal employees from using certain federal resources. But the Judge correctly pointed out that the Order ignored Congress’s statutory statement that “labor organizations and collective bargaining in the civil service are in the public interest.” The limit imposed by the Order “exacerbates management’s advantages over labor and hampers unions’ ability to engage effectively in future collective bargaining, contrary to the clearly articulated goals of the [Statute].”

Lastly, the removal procedures order, officially titled “Promoting accountability and Streamlining Removal Procedures Consistent With Merit System Principles,” rejects the principle that supervisors and deciding officials should be “required to use progressive discipline” when dealing with underperforming subordinates, and limits opportunity periods to demonstrate acceptable performance. It forbids agencies to make any agreement that requires procedures for considering “progressive discipline,” and it explicitly prohibited bargaining over matters related to employee evaluations and bonuses. But Judge Jackson found that grievance procedures are instrumental in facilitating the protection of statutory rights, and they exist to safeguard the participation rights of individual employees and unions. Judge Jackson explained that the Order inappropriately eliminates the ability of labor representatives to assist federal employees who claim they were improperly evaluated or undercompensated, and this “deprives unions of an opportunity to utilize the collective bargaining process to influence the mechanisms through which accurate and fair treatment of employees within the federal civil service occurs.”

Summarizing her findings, Judge Jackson explained that many of the matters discussed in the Orders fall within the scope of the right to bargain that Congress sought to protect when it enacted the Federal Service Labor-Management Relations Statute:
In this Court’s considered judgment, the President is without statutory authority to promulgate directives that reduce the scope of the statutory right to bargain collectively that Congress enacted in the [Statute]; and, indeed, there appears to be no dispute that the President does not have the constitutional authority to override Congress’s policy choice. Thus, the only challenged provisions of Executive Orders 13,836, 13,837, or 13,839 that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.
Unfortunately, Judge Jackson denied the lawsuit with respect to other matters. Most significantly, the decision did not invalidate the provision prohibiting agencies from entering into any settlement agreement that removes discipline from an employee`s personnel file. This provision has prevented agencies and employees from settlements that involve little or no cost (it is not expensive to change a removal to a voluntary resignation), forcing the parties to litigate before an Administrative Judge or arbitrator, with larger litigation costs and an even larger cost to the government in a loss. The basis for this portion of the Order is nothing short of an open hostility to federal employees.

Nevertheless, though some portions of the Orders were left intact – and it would not be a surprise if President Trump appeals – Judge Jackson’s decision reminds us all about the value of collective bargaining, and it provides a welcome reprieve for federal employees.


 
Written by Zachary Henige




This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Thursday, August 16, 2018

Revoking John Brennan’s Security Clearance Reveals Flaws in Whistleblower Protections for the Intelligence Community

Yesterday, the White House announced that President Trump had revoked the security clearance of John Brennan, the former Director of the Central Intelligence Agency (CIA). The President’s statement claimed the decision was justified by Brennan’s “erratic conduct and behavior” that “tested and far exceeded the limits of any professional courtesy[.]”

The President noted that Brennan told Congress that “the intelligence community did not make use of the so-called Steele dossier in an assessment regarding the 2016 election,” and he continued, saying:
Additionally, Mr. Brennan has recently leveraged his status as a former high-ranking official with access to highly sensitive information to make a series of unfounded and outrageous allegations — wild outbursts on the Internet and television — about this administration. Mr. Brennan’s lying and recent conduct, characterized by increasingly frenzied commentary, is wholly inconsistent with access to the nation’s most closely held secrets, and facilities [facilitates] the very aim of our adversaries, which is to sow division and chaos.
Brennan’s most recent tweet criticized the President for calling Omarosa Manigault-Newman a “crazed, crying lowlife” and a “dog,” and praising his Chief of Staff John Kelly for firing her. Brennan stated:
It’s astounding how often you fail to live up to minimum standards of decency, civility, & probity. Seems like you will never understand what it means to be president, nor what it takes to be a good, decent, & honest person. So disheartening, so dangerous for our Nation.
This tweet is fairly described as a disclosure about “an abuse of authority.” An abuse of authority is an “arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.”

On August 1, 2018, Brennan tweeted:
Individuals of conscience who believe in rule of law should denounce this blatant effort to obstruct justice. As Mr. Trump’s desperation to protect himself grows, he could turn words into actions, prompting a Constitutional crisis. Congress must warn Trump of dire consequences.
Since obstruction of justice is a crime, this tweet can fairly be read to constitute a disclosure of a violation of law.

In 2014, Congress passed the Intelligence Authorization Act, that included protection of a whistleblower’s security clearance. At 50 U.S.C. Section 3341(j)(1), the law prohibits the revocation of an employee’s security clearance because that employee made a lawful disclosure of “ a violation of any Federal law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety[.]”

The Supreme Court previously held that a law protecting employees from retaliation also protects former employees.

The 2014 Act requires each IC agency to implement its own policy against whistleblower reprisals. If the agency determines that a denial of a security clearance was an unlawful reprisal, “the agency shall take specific corrective action to return the employee or former employee, as nearly as practicable and reasonable, to the position such employee or former employee would have held had the violation not occurred.” The agency can also pay up to $300,000 in compensatory damages.

However, if the agency determines that it did nothing wrong, the whistleblower has 60 days to appeal to the DNI. Under procedures made in consultation with the Secretary of Defense and the Attorney General, the DNI gets to make the final decision. There is no appeal to any court, nor any right to file an individual lawsuit.

The odds that any or all of these presidential appointees would declare that the President himself violated the law seems too remote to build confidence in this system. If Congress wants to assure that employees in the IC will trust that they are protected if they disclose wrongdoing, it needs to provide for appeals to independent tribunals and eventually to the courts. IC employees can already bring discrimination claims to civilian courts, and the same procedures could be used in whistleblower cases.

Using the civilian Whistleblower Protection Act (WPA) would be one way to accomplish this goal. Employees covered by the WPA can make complaints to the Office of Special Counsel, appeal to the Merit Systems Protection Board (MSPB), appeal further to the federal Courts of Appeals, and if their claim is mixed with a claim of discrimination, they can file a civil lawsuit and seek a jury trial.

Now would be a good time for Congress to expand the coverage of the WPA to extend these protections to employees of the Intelligence Community.



By Richard Renner



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