Kirkpatrick Whistleblower Protection Act

On October 26, 2017, the President signed into law the S585 Kirkpatrick Whistleblower Protection Act which provides additional protections for federal employee whistleblowers and, inter alia,  requires that agencies take expedited disciplinary action against managers who are found to have retaliated against whistleblowers.

Accelerated Removal Procedures for VA Executives Held Unconstitutional

In Helman v. Dept of Veterans Affairs, No. 2015-3086, issued May 9, 2017, the Court of Appeals for the Federal Circuit held that the accelerated removal procedures of the Veterans Access, Choice and Accountability Act under which Ms. Helman was terminated constituted an unconstitutional delegation of authority to an administrative judge of the Merit Systems Protection Board in violation of the U.S. Constitution’s Appointments Clause.  The abbreviated removal appeal procedures in that law were enacted in 2014 to make termination of VA executives easier. The Court held other related provisions of the law to be valid. The due process rights of federal employees arise are constitutionally protected and cannot be summarily revoked. The VA’s care problems do not arise from dishonest, lazy or incompetent employees, but from Congress’s underfunding of the long term costs of military actions. The publicized delays and reporting manipulations are symptoms of that shortage and the underlying problem will not be corrected by making it easier to fire VA employees.

Federal Court of Appeals Approves MSPB Standard for Government Shutdown Furloughs

In Synder v. Dept. of Navy, Federal Circuit, April 27, 2017, the Court of Appeals for the Federal Circuit affirmed Merit Systems Protection Board’s approval furloughs of the plaintiff resulting from the October 2013 sequestration.  The legal standard applied is that an agency’s furlough decision must “be a reasonable management solution to the financial restrictions placed on the agency” and the agency must “determine which employees to furlough in a fair and even manner.” 5 U.S.C. 7513(a); 5 C.F. R. 1201.56(a)(1)(ii)(2015).  This standard had been employed in several earlier cases including Einboden v. Dept. of the Navy, 802 F.2d 1321, 1323 (Fed. Cir. 2015). Federal agencies have the legal authority to furlough employees, but they must do this in the proper manner and the employees remain entitled to recover the pay that they lost.

Court of Federal Claims Doubles the Back Pay due Federal Employees From Government Shutdown

On February 17, 2017, the Unites States Court of Federal Claims, issued a decision that doubles the back pay due federal employees from the October 2013 government shutdown. Donald Martin, Jr. v. United States, No. 13-843, U.S. Court of Federal Claims, 2017). The class action case was brought under the Fair Labor Standards Act which requires employers, including the Federal government, to pay employees, at least the minimum wage and overtime. The FLSA further provides for a doubling of the back pay due where a violation has been found to be willful. The Court found that the FLSA had been violated and the violation was willful. Congress should recognize that laws that they had previously passed will be violated if they fail to authorize the funding needed to meet the obligations created by those laws.

7th Circuit Extends Title VII Protection to Sexual Orientation

In Hively v. Ivy Community College of Indiana (7th Cir. 2017)   an en banc decision characterized as “momentous” by the dissent, the U.S. Court of Appeals for the Seventh Circuit holds that Title VII of the 1964 Civil Rights Act’s prohibition of discrimination on the basis of sex covers claims of employment discrimination based on sexual orientation. This holding has previously been rejected by other courts, although the Equal Employment Opportunity Commission has advocated for this coverage for several years. The Hively decision means that nearly all employers within the geographical jurisdiction of the 7th Cir. (Illinois, Indiana and part of Wisconsin) cannot refuse to hire, promote or otherwise discriminate against gays, lesbians and presumably transgender individuals. There are  decisions rejecting this holding in other jurisdictions. The issue is likely to be decided some day by the U.S. Supreme Court, whose current composition would be likely to uphold with the Hively decision. April 5, 2017.




DOCKET NUMBER AT-1221-93-0670-R-1








1996 MSPB LEXIS 1167

November 19, 1996

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During August, President Clinton signed numerous bills into law containing many changes in employment laws. While most employers are aware of broad changes in the minimum wage, welfare, and health care laws, there are many details in these laws that have not been widely publicized. The following discusses some of these changes.

Return to Employment Law Bytes

Return to Adam Conti’s Internet Law Office Last revised November 1996.

Copyright © 1996 Adam J. Conti. All rights reserved.

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A very important but little publicized change was made in the EEOC investigation practices around the first of August this year. The EEOC’s associate legal counsel, Peggy Mastroianni, announced that the EEOC will be making more “cause” findings in its investigations, and changing the standard of what it determines to be “cause” to believe that discrimination had occurred. Mastroianni stated that a “cause” finding used to mean that a charge was worthy of litigation by the EEOC. However, now the finding means that it is likely that discrimination occurred, but the EEOC will not necessarily bring suit.

This change is very important for management. It means that now it is much more likely that the EEOC will find “cause” to believe that discrimination had occurred, and attempt to negotiate a conciliation agreement. In such negotiations, it now appears that the EEOC will be willing to take less than a “full relief” settlement. That is, it appears that the EEOC will be willing to accept a reasonable compromise settlement, if mutually agreeable between the employer and the charging party. Even if the EEOC finds discrimination and is unable to negotiate a conciliation agreement, the Commission itself is less likely to sue, and will probably only sue in a minority of the cases. However, it may be easier for the charging party to get a plaintiff’s lawyer to bring suit, inasmuch as the charging party will have the benefit of a “cause” determination by the EEOC.

Return to Employment Law Bytes

Return to Adam Conti’s Internet Law Office Last revised November 1996.

Copyright © 1996 Adam J. Conti. All rights reserved.

Vizcaino v. Microsoft

In Vizcaino v. Microsoft , No. 94-35770 (9th Cir.Oct. 3, 1996)the U.S. Court of Appeals for the Ninth Circuit finds that a class of certain employees who had been characterized as independent contractors by Microsoft Corporation were improperly denied participation in the company’s 401(k) and employee stock ownership plans. In reaching this conclusion the court relied upon the express language of the plan documents, the legal doctrine of construing certain ambiguous written instruments against the drafter and the nature of the relationship between the plaintiffs and Microsoft. One judge dissented and a request for rehearing by the entire Ninth Circuiten banc is likely.

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Maintaining Employment Records Electronically

The personal computer has radically transformed the way work is performed today. No dimension of this electronic revolution has received more publicity in the last year than the introduction of the Internet into our daily lives. It was only a few years ago that we learned that linking individual desk top and work station PC’s into local area networks or LAN’s significantly enhanced our productivity. E-mail followed closely behind. Today, the LAN is the standard technological configuration of the contemporary workplace. The Internet is the next step in the computer’s evolution. It links individual PC’s and LAN’s together into one global network in which knowledge, information, communications and entertainment can be shared with unprecedented ease, speed and convenience. Because of this, many employers are providing workplace PC’s with access to the Internet. In addition, many companies are establishing intranets which link all the personal PC’s within their organization to one another by utilizing the ease and user friendliness of the Internet’s World Wide Web browser technology. This makes the sharing of information even easier and substantially enhances individuals’ capacity to work together.

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