The Final Agency Decision or FAD is an odd nuance that exists in federal sector employment discrimination cases. The FAD, and what is included in a FAD, can be confusing for federal employees trying to navigate the federal sector EEO complaint process. Our latest article is designed to help address confusion and answer common questions about FADs. If you are a federal employee and considering requesting a FAD or have additional questions about FADs that, please contact us.
Non-Pecuniary, Compensatory Damages in the Federal Sector
When a federal employee prevails in a discrimination claim, that employee is generally is entitled to damages for emotional and physical harm caused by the discrimination. These damages are referred to as non-pecuniary, compensatory damages. However, there is much confusion over the legals standards that apply to such awards. Our latest guidance seeks to clarify the legal standards that are applicable to these awards of damages.
Federal Sector Employment Law: Medical Inquires and Examinations
The Rehabilitation Act includes limitations on a federal government agency’s ability to make
medical inquiries and direct medical examinations of all employees, not only individuals with
disabilities. The Wick Law Office has issued new guidance on medical inquiries and examinations for federal sector employees, which can be found at the link below.
The Hidden Cost of Disability Discrimination
According to a recent article, more than one third of individuals with disabilities experience discrimination in the workplace. Additionally, regardless of whether the disability is “visible” or “invisible” (i.e. migraines, depression, etc.), employees report feeling stalled in their careers, but are afraid to ask for reasonable accommodations. https://www.cbsnews.com/news/the-hidden-cost-of-disability-discrimination/
We encourage employees with disabilities to seek reasonable accommodations when needed and to report discrimination when it occurs. However, we are mindful of the difficulties in disclosing disabilities and the concerns about retaliation. Creating an atmosphere inclusive of individuals with disabilities benefits employees and the employers. Moreover, most reasonable accommodations have little or no cost to the employer. Disability discrimination is unlawful and studies have shown that employees with disabilities are more ambitious than those without, increasing the margin of missing a potential benefit to the workplace by excluding individuals with disabilities.
If you or someone you know has been the victim of workplace discrimination or if you have questions about reasonable accommodations, please contact us.
Upcoming Presentation: Colorado Bar Association’s Employment Law Clinic
The Wick Law Office’s Benjamin Wick and Holly Franson will be presenting at the Colorado Bar Association’s Employment Law Clinic in Vail, Colorado on October 7, 2017. Our presentation, titled Pregnancy and Breastfeeding in the Workplace: Litigation, Accommodations, and Advising Your Clients, will focus on the federal and state laws that protect pregnant and breastfeeding employees in the workplace. We will also discuss best practices for advising employers and employees to ensure compliance with the applicable statutes. Registration information is available at: http://cle.cobar.org/employment.
The Wick Law Office Is Expanding!
To better serve those clients in the Vail Valley, Summit County, the surrounding mountain areas, and the western slope, we are now offering appointments in Avon, Colorado. If you would like to schedule an appointment to meet with us in Avon, please contact us at 720-999-5390.
New York Federal Court Finds Employment Arbitration Agreement To Be Invalid
On July 14, 2017, the U.S. District Court of the Southern District of New York held that an arbitration agreement was not a binding contract between the employer and employee because there was neither an offer nor an acceptance. The employer, Macy’s, proffered that an “Election Form” was sent to employees for the employees to opt out of their “right to arbitration” by signing and returning the form. Macy’s interpreted the failure to sign and return the form to be a binding agreement to resolve employment disputes solely through arbitration.
The Court rejected this argument relying on New York common law which states in relevant part that “it is well settled that [a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate.” Fiveco, Inc. v. Haber, 11 N.Y.3d 140, 144, (N.Y. 2008) (internal quotation marks and citations omitted). The Court found that the “Election Form” provided to the employee was “remarkably counterintuitive, ambiguous, and misleading.” Weiss v. Macy's Retail Holdings Inc., 2017 U.S. Dist. LEXIS 109757 (S.D.N.Y. July 14, 2017). Additionally, the Court found that there was no acceptance, relying on New York case law which states that “an offeror has no power to transform an offeree's silence into acceptance when the offeree does not intend to accept the offer[.]” Karlin v. Avis, 457 F.2d 57, 62 (2d Cir. 1972).
Although this decision only directly impacts employees in New York, it should be a signal to employers and employees about the requirements for a valid arbitration agreement in the employment context. It also provides employees with arguments that might be used to invalidate arbitration agreements, if presented with similar factual circumstances.
Recent Supreme Court Ruling Impacts MSPB Appeal Rights
The Supreme Court recently determined that federal employees appealing certain decisions from the Merit Systems Protection Board (MSPB) can file for judicial review in federal district court. In Perry v. MSPB, No. 16-399, 2017 U.S. LEXIS 4044 (June 23, 2017), the Supreme Court decided that the proper forum for judicial review of cases involving discrimination (including “mixed cases”) decided by the MSPB is federal district court when the MSPB dismisses a case on the merits, on procedural grounds, or on jurisdictional grounds.
In Perry, an employee of the U.S. Census Bureau appealed his suspension and coerced retirement to the MSPB, alleging discrimination based on race, age, and disability, as well as retaliation based on a prior complaint with the Equal Employment Opportunity Commission (EEOC). The MSPB administrative law judge presumed Perry’s retirement to be voluntary and dismissed his case for lack of jurisdiction. The Supreme Court held that for case like Perry, a mixed case dismissed by the MSPB on jurisdictional grounds, the proper forum for judicial review is federal district court.
The ruling in Perry correctly applies the law and expands the rights of federal government employees to seek judicial review of MSPB decisions. Employees are better served by the opportunity for the applicable federal district court to hear MSPB cases alleging discrimination when the case is dismissed on the merits, procedural grounds or jurisdictional grounds.
Are you curious about the protections to ensure employees receive equal pay?
If you are interested in information about the requirements to pay employees equally, take a look at our fact sheet on the Equal Pay Act.
Should you have an employment agreement?
Not many employees enter into employment agreements. As discussed in our latest article, it can be beneficial to both the employer and employee to have an employment agreement in place. There are numerous terms that can be included in an employment agreement. These terms can address termination, wages, compensation, and other benefits of employment. Having an employment agreement can help to avoid dispute if an employee is later separated. Please contact us if you have questions about employment agreements.
What is unlawful harassment in the workplace?
We receive calls almost daily from potential clients inquiring about harassment experienced in the workplace. As we explain to the potential client, harassment is not in the abstract. In other words, there is no general prohibition on people being mean to each other in the workplace. Rather, for a claim of harassment to be viable, it must be discriminatory harassment, harassment in violation of a contract, agreement, or the employer’s policy, or harassment in retaliation for engaging in some activity protected by statute, rule or regulation. Additional information can be found in our new article.
DISCRIMINATORY HARASSMENT IN THE WORKPLACE: LEGAL STANDARDS FOR CLAIMS AND EMPLOYER LIABILITY
If you believe you have been the victim of unlawful harassment, contact us: 720-999-5390.
Upcoming Presentation: Representing Government Workers 101 →
in Trainings
Benjamin E. Wick will be presenting at the Colorado Plaintiff Employment Lawyers Association's upcoming conference titled Representing Government Workers 101. The conference focuses on the complications associated with representation of public employees, including state and federal workers. Mr. Wick will be presenting on the federal EEO process for federal employees raising allegations of discrimination, harassment, or retaliation. He will also be part of a panel providing tips for representing government workers. Information on registration can be found at the link below. Join us!
https://coloradopela.wildapricot.org/event-2535468
Understanding And Identifying Reasonable Accommodations Can Be Difficult
Employers are required to provide reasonable accommodations to individuals with disabilities. Although such accommodations are mandated by the Americans with Disabilities Act (ADA) and Rehabilitation Act (Rehab Act), it can be difficult to find the right accommodation. This is particularly true for accommodations that are new, different, or changing. Furthermore, the accommodation cannot pose an undue hardship for the employer. As such, it is important to explore and identify various reasonable accommodation options. Here are some tips.
Federal employees with disabilities may have more options for reasonable accommodations
Federal employees and private sector employees can have a different legal standard applied to the same set of circumstances. One of the areas where is problem arises is when a reasonable accommodation is needed for commuting to or from work. Navigating the differences in the ways in which the Americans with Disabilities Act and Rehabilitation Act are interpreted can be challenging. The link below includes information about the legal standard that applies for federal government employees who need an accommodation because of a disability when commuting.
Accommodating Commuting Restrictions For Federal Government Employees
Older Workers Benefit Protection Act
Curious about protections provided to workers over age 40 in signing settlement agreements, severance agreements, and otherwise waiving claims? Check out our new article on the Older Workers Benefit Protection Act (OWBPA).
Federal Sector Equal Employment Opportunity Topics
Numerous questions have been posed to our attorneys about the overlap between discrimination claims raised by federal government employees with other types of claims raised by federal employees. Information on the overlap between types of claims can be found in our new article titled:
Overlapping Issues in Federal Sector Equal Employment Opportunity (EEO) Complaints
New Guidance for Federal Sector Employees
The Wick Law Office's Holly V. Franson has issued new guidance for federal government employees who have been forced to take leave or suspended, without notice, from employment with a federal agency. The guidance discusses situations in which employees of the federal government can challenge constructive suspensions and forced leave lasting more than 14 days.
Our new book is available for preorder!
The Wick Law Office is very pleased to announce that our new book, Federal Sector Equal Employment Opportunity Practice Guide, is available for preorder. The book was written by the Wick Law Office’s Benjamin E. Wick and Holly V. Franson. It includes detailed practical guidance for federal sector processing in equal employment opportunity cases from start to finish, including relating to procedural issues that arise in complaints and the legal standards that apply to specific discrimination claims. Preorder information can be found at the link below.
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The Wick Law Office has advice for federal employees on filing complaints
The Wick Law Office has issued some recommendations to federal employees to assist in determining if an EEO complaint is timely.
https://www.avvo.com/legal-guides/ugc/federal-employee-pitfalls-filing-a-timely-complaint