Legal Briefs: Flexiplace fight

Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

The Social Security Administration has to let an employee telecommute because the agency let others do so, the Federal Labor Relations Authority ruled recently.

SSA began a flexiplace pilot project in 1992. Though the pilot ended in 1993, SSA allowed some employees to keep working from home. In 1996, a paralegal legal specialist with a disabled mother and teen-aged son asked SSA if she could work from home. Another paralegal legal specialist had been allowed to telecommute.

But the agency denied the second employee's request because the official pilot project was over, and because the project had allowed for only one paralegal legal specialist to telecommute. The second specialist filed a protest through her union, which an arbitrator sustained.

The FLRA let stand the arbitrator's finding that SSA's telecommuting project required "nondiscriminatory treatment of similarly situated employees." SSA was also ordered to give the specialist back pay for overtime she would have accumulated had she been allowed to work from home.

Lesson: If you're going to be family-friendly to some employees, be family-friendly to all employees.

SSA vs. AFGE Local 3615, 55 FLRA No. 56, March 31, 1999

Timeliness Pays

The Postal Service agreed to pay $463 in attorney's fees under a settlement agreement with an employee, Charles V. Capehart. When Capeheart did not receive his check, he notified the agency that he would file a petition for enforcement with MSPB if he was not paid promptly. USPS did not respond, so Capehart filed the petition. The agency then paid, nearly three months after the settlement agreement. An administrative judge dismissed Capehart's petition. But the following month he filed another motion asking that USPS pay the $665 in attorney's fees it cost him to file the original petition. MSPB agreed that USPS's delay in paying Capeheart was unreasonable and ordered the agency to pay him the $665.

Lesson:Pay up on time, or expect to pay even more.

Charles V. Capehart v. United States Postal Service (DC-0752-96-0725-A-3), Merit Systems Protection Board, March 1, 1999

Disability Reigns

Disability discrimination complaints continue to be the top allegations federal employees file with the Merit Systems Protection Board, ahead of allegations of sex, race or age discrimination.

For at the least the third consecutive year, disability was the most frequently alleged discrimination in initial appeals filed with MSPB in fiscal 1998. Nearly one in three discrimination complaints is disability-related, including complaints under the Americans with Disabilities Act and those based on mental ailments. Race was the second most frequent discrimination complaint, followed by sex. Nearly 38 percent of complaints included more than one type of discrimination. Of cases that were not dismissed, settled or withdrawn, discrimination was actually found in only three percent.

MSPB reported the following breakdown of discrimination allegations:

1. Disability (32%)
2. Race (22%)
3. Sex (19%)
4. Age (15%)
5. Color (6%)
6. National origin (5%)
7. Religion (2%)