LEOS - Protecting FEDs

LEOS Protection One Step Closer to Securing Overtime Pay for Secret Service

Thu, 14 Nov 2024 18:03:12 GMT

LEOS Protection membership helps employees punch far above their weight...

The Federal News Network ran a story on our 9 year fight to obtain overtime pay for Secret Service Agents. The U.S. Court of Federal Claims, in an Oct. 29 ruling, denied the Secret Service’s motion for summary judgment in the case.

FROM THE ARTICE :

Nicholas Wieczorek, a partner at Clark Hill representing Secret Service agents in the lawsuit, said the motion, if granted, would allow additional Secret Service members to assert their own claims of unpaid overtime.

“We think, under the rules, class action status is the way to go because all of these agents are affected by the same statute, same pay regulation, same working conditions, same conditions of employment. So they are numerous and common, with respect to the issues,” Wieczorek said.

If the court grants the motion for class certification and the case goes to trial, Wieczorek said it would mark the beginning of the end for this drawn-out legal battle.

“If the court rules appropriately and positively on the class certification issue, we will at least see light at the end of this tunnel, in terms of getting the case concluded for the class members,” he said. “The financial analysis is complicated and broad, but it’s not legally complex, so it’s number-crunching and coming up with calculations of who was affected and what amount.”

The latest development in this lawsuit comes at a time of heavy scrutiny for the Secret Service.

Its permanent director stepped down in July, following the first of two attempted assassinations of President-elect Donald Trump during the presidential campaign.

A White House-commissioned report released last month found evidence of a “do more with less” culture at the Secret Service that may have resulted in burnout among agents and contributed to the agency’s security failures leading up to a July 13 assassination attempt at a Trump campaign rally in Butler, Pennsylvania.

Wieczorek said the long-standing overtime dispute also ties back to workplace morale.

“It doesn’t help morale if an employer is not paying the employees the money they are due for the work they perform,” he said. “In any working environment, if you’re not being paid for the work you do, you are not going to be highly motivated, or your morale is not going to be as [high] as it could be.”

The lawsuit focuses on Secret Service agents assigned to protective details of politicians, dignitaries and elected officials.

The lawsuit, first filed in 2015, originally challenged an Office of Personnel Management policy that Secret Service agents had to work two consecutive hours of unscheduled extra duty to receive overtime pay.

But in Horvath v. United States, another case where a Secret Service agent claimed he wasn’t paid the amount of overtime he was owed, the U.S. Court of Appeals for the Federal Circuit overturned that OPM policy in 2018.

The Secret Service updated its pay policies to comply with the appeals court’s decision.

But six years after that ruling, plaintiffs in Naltner v. United States say the agency still hasn’t compensated more than 1,800 agents it estimates worked split-overtime hours in recent years.

Wieczorek said a class-action lawsuit, if granted, would cover even more current and former Secret Service personnel than that.

“It’s in the thousands, I’m quite sure,” Wieczorek said. One of the plaintiffs, he added, estimates the agency owes him $25,000 to $30,000 in unpaid overtime.

In addition to their base pay and standard overtime, Secret Service special agents are generally eligible to earn a Law Enforcement Availability Pay (LEAP) enhancement — a 25% pay enhancement added on top of their base salary each pay period, as long as they average two extra hours of work each day over the course of a year.

“Put another way, LEAP compensates special agents for the unscheduled overtime (i.e., being asked to start a shift early or stay late) that is part and parcel of serving as a special agent,” court documents state.

For example, a Secret Service special agent working a 12-hour shift with no unscheduled overtime would receive eight hours of their base salary, plus two hours of LEAP premium pay, and two hours of hourly pay at the overtime rate of 1.5 times their basic pay rate.

Special agents who work protective duties receive weekly schedules outlining their assignments — including scheduled overtime.

Not including overtime hours, the Secret Service typically schedules agents for eight-hour, 10-hour and 12-hour shifts. All hours beyond the eight-hour mark are deemed “scheduled in advance.”

However, the Secret Service may modify an agent’s schedule after the workweek has begun if operational needs require more overtime than previously anticipated. Any additional overtime hours added to these “red-pen schedules” are considered unscheduled overtime.

Secret Service agents face caps on their total compensation each pay period and calendar year.

Including overtime and premium pay, their aggregate pay cannot exceed the greater of these two categories — the basic pay for GS-15 level employees (including locality pay), Level V of the Executive Schedule, which is currently $180,000.

Special agents can still be assigned overtime hours, even if they have received their pay cap for a given pay period or year.

In 2016, Congress passed the Overtime Pay for Protective Services Act to raise those pay caps. Lawmakers passed another bill in January this year that will extend those pay caps through 2028.

In 2017, more than 1,000 Secret Service agents tasked with protecting Trump and his family hit their pay cap for the year.

EEOC Publishes New Guidance on Workplace Harassment

Wed, 01 May 2024 20:23:14 GMT

The United States Equal Employment Opportunity (EEOC) has issued its final guidance on 'Enforcement Guidance on Harassment in the Workplace'.

Our Clark Hill attorney summary provides valuable insight on the recent guidance.

While not binding law, the new guidance aims to provide updated information on EEOC’s expanded view of what constitutes workplace harassment, including the expansion of Title VII’s prohibition on sex discrimination based on sexual orientation and gender identity as the U.S. Supreme Court determined in Bostock v. Clayton County in June 2020.

This new guidance updates and replaces the EEOC’s previous five guidance documents to provide a single resource for the public on EEOC-enforced workplace harassment laws.

Supreme Court Weighs In on Forced Transfers

Wed, 17 Apr 2024 22:32:58 GMT

Majority SCOTUS opinion sets a lower bar for forced transfer claims.

The Supreme Court in Muldrow v. City of St. Louis, Missouri, et al., 601 U.S. ____ (April 17, 2024), held that where an employer transfers an employee to another position, to prove discrimination under Title VII, the employee need only show 'some harm' from the transfer and need not demonstrate harm that is 'significant' or 'material.'

Writing for the six-member majority, Justice Elena Kagan said that the federal law banning discrimination in employment includes a ban not just on economic discrimination, it also includes a ban on discrimination in the 'terms' and 'conditions' of employment. Kagan said this opinion covers a transfer that changed "nothing less than the what, where, and when of [Muldrow's] police work."

While lower courts have required that these types of discrimination claims show 'significant' or 'material' harm, Justice Kagan in the majority opinion said that is too high a bar. The anti-discrimination statute "targets practices that 'treat a person worse' " because of their sex, race, religion or national origin. Explaining why this higher threshold is necessary, Kagan said that "whether the harm is significant" turns out to be "in the eye of the beholder."

SCOTUS rejected the standard applied by seven circuit courts, the U.S. Supreme Court held that job transferees alleging Title VII discrimination do not have to show “significant harm,” but instead need only show “some harm” from the transfer.
Any forced transfer leaving an employee “worse off” is likely to satisfy the new “some harm” standard, even where there has been no change in salary or benefits.
The holding may expand the number of colorable Title VII claims based on a mandatory job transfer.

See: https://www.supremecourt.gov/opinions/23pdf/22-193_q86b.pdf

Pregnant CBP Officers Win EEOC Class Certification

Wed, 06 Sep 2023 23:30:22 GMT

CBP took similar actions against female employees once advised of pregnancy.

On April 21, 2023 an administrative judge at the EEOC certified a class of employees for claims of discrimination they brought against their supervisors at Customs and Border Protection (CBP). Female CBP employees filed the EEOC class action lawsuit alleging years of discrimination. The lawsuit claims that after informing their supervisors of their pregnancy, the officers were involuntarily placed on temporary light duty (TLD) status, regardless of whether they requested it. The officers claim that the practice caused financial losses, damaged their careers, and further claim that the agency believed their pregnancy would make them less competent.

Following an appeal of the initial class certification in May 2023, the EEOC ruled in favor of the group of employees and upheld the class in an August 30, 2023 decision.

Officers claim the involuntary light duty positions forced them to turn in their weapons, reassigned them to menial positions, and denied them premium pay. Up to 80% of the temporary light duty assignments for pregnant women occurred in CBP’s eight largest field offices.

CBP officers could be part of the class action lawsuit if they were involuntarily placed on TLD on or after July 18, 2016.

For further information, see EEOC Case No. 450-2017-00086X

New DOL Procedures for COVID-19 Claims

Sat, 28 Jan 2023 22:06:53 GMT

The CA-1 will rarely be used moving forward

The American Rescue Plan Act of 2021 (ARPA) expired yesterday, January 27, 2023. The ARPA included certain presumptions for federal workers who were exposed to COVID in the course of their duties. Law enforcement officers, first responders, and government employees in general who tested positive for COVID were presumed to have contracted their illness while at work. In line with these presumptions, the Department of Labor (DOL) required that form CA-1, Notice of Traumatic Injury, be used for COVID claims, and up to 45 days of Continuation of Pay (COP) was authorized in conjunction with the filing.

The DOL has published FECA Bulletin 23-02, and it affects workers who test positive for COVID after Jan. 27, 2023. In most instances, workers’ compensation claims for COVID should now be filed on form CA-2 Notice of Occupational Disease (unless the injured worker is capable of positively identifying their exposure to a single event or a single work shift). With an occupational disease claim, there is no entitlement to COP, and any claim for wage loss benefits will require submission of DOL form CA-7. Further, any claims for COVID benefits based on testing after Jan. 27, 2023 received on a CA-1 will be administratively converted to a CA-2 by the DOL, and COP will automatically be denied. Workers will receive written notice of the administrative change.

More information can be found in the DOL FECA Bulletin 23-02

Which is Better - A Disability Annuity, New Job, or Both?

Wed, 22 Jun 2022 15:29:40 GMT

A common concern of federal civilian employees receiving FERS disability annuities is if they should accept an employment offer with a new employer. Accepting an offer may result in one of the following scenarios:

You accept a highly paid position with a new employer that causes you to exceed the FERS earnings limit in the first year, and your FERS disability annuity stops June 30 ^th of the following year;
You decline the position and continue to receive your disability annuity; or
You negotiate a lower salary package that does not cause you to exceed the earnings limit, and you receive both your wages and your disability annuity.

Depending on the specific circumstances of the individual employer, you may receive more total income now and in the future under option three. By staying under the earnings limit, the sum of your salary plus your FERS disability annuity payments may be greater than the higher salary you would receive under option one. As a bonus, your FERS age 62 pension will not be adversely impacted.

Be careful in negotiating total compensation. A bonus or other cash payment could put you over the earnings limit!

How Your FERS Disability Annuity and Age 62 Benefit are Calculated

In order to consider best options, it helps to understand how the FERS disability annuity is calculated. FERS is a governmental defined-benefit plan meaning benefits are calculated based on salary and credited pension years of service. When you qualify for disability retirement prior to age 62 (assuming you are not eligible for immediate voluntary retirement and have less than 20 years of service) your benefit is calculated based on the greater of:

60% of your high-3 average salary for the first 12 months minus 100% of your Social Security disability benefits (if applicable) and, thereafter, at 40% of your high-3 average salary minus 60% of your Social Security disability benefits (if applicable); or
1% of your high-3 average salary multiplied by your years and months of service (for firefighters and law enforcement officers, 1.7% for the first 20 years of service and 1% for years over 20).

If you continuously receive FERS disability annuity payments until you reach age 62, your annuity will be recalculated using an amount that essentially represents the annuity you would receive if you had continued working until the day before your 62 ^nd birthday and then retired under the FERS non-disability provisions. The total service used in your computation will be increased by the amount of time you have received a disability annuity, and your average salary will be increased by all of the FERS cost-of-living increases you received.

What Happens if You Accept a Position Prior to Reaching Age 60 that Results in You Exceeding the Earnings Limit?

If your new position causes you to exceed the earnings limit prior to age 60:

Your disability annuity will stop on June 30 ^th following the year in which you exceed the limit;
Your age 62 benefit will be reduced (in some cases significantly); and
You will lose your Federal Employees Health Benefits (“FEHB”) health and life insurance benefits.

The earnings limit goes away once you reach age 60.

If You Lose Eligibility for the FERS Disability Annuity, Will You be Able to Make Up the Loss of Income?

It may be difficult to make-up the loss considering:

Many private employers have frozen or closed their defined benefit pension plans to new hires;
Accepting a salary and other forms of compensation that cause you to exceed the FERS earnings limit by $1 will cause you to lose your entire disability annuity and FEHB retiree health and life insurance benefits; and
Your FERS age 62 benefit will no longer factor in credited service for the years you received disability annuity payments; nor will it reflect any cost-of-living adjustments you received.

Evaluate Your Choices.

Contact legal counsel before accepting a position with a new employer. Attorneys, can advise you on how to maximize your current and future income and benefits.

If you have already accepted a position with a new employer, legal counsel can assist you in determining the steps you can take to maximize your future income (wages and pension) and possibly requalify for the FERS disability annuity.

Please contact these attorneys for more information:

Nicholas Wieczorek at nwieczorek@clarkhill.com or

Mickey Bartlett at mbartlett@clarkhill.com

A New Phone Number and Direct DOL Online Communication

Mon, 28 Sep 2020 23:41:45 GMT

A new phone number, and the ability to electronically receive and respond to letters from OWCP directly through your ECOMP Dashboard.

Effective 09/28/2020, you can electronically receive and respond to letters from OWCP directly through your ECOMP Dashboard.

If OWCP sends you a letter requiring a response, it will now appear in your ECOMP dashboard under the “Action Required” tab. You can respond online and attach documents to your response.

A video tutorial is also available in ECOMP’s Help Menu under User Guides / Injured Worker / Introduction.

If OWCP sends you an informational-only letter, it will only appear in your Case View, which you cannot access from your dashboard. To access your Case View, you must click on the case number from your dashboard.

The second change also takes effect today, September 28, 2020, when OWCP will start using 202-513-6860 as the sole telephone number where you can reach them from 9:30 a.m. – 6:30 p.m. ET, Monday – Friday (except for federal holidays).

This new voice line will replace the current 12 FECA district office telephone numbers and provide you direct access to your assigned Claims Examiner.

PSOB grants benefits to families of public safety officers lost to COVID-19

Fri, 14 Aug 2020 20:11:51 GMT

WASHINGTON – PUBLIC LAW 116–157 signed - President Donald Trump today signed into law bipartisan legislation led by Senators Chuck Grassley (R-Iowa) and Cory Booker (D-N.J.) to improve timely access to financial assistance for families of public safety officers lost to COVID-19. The Senate unanimously passed the Safeguarding America’s First Responders Act (SAFR) in May with the House of Representatives following suit in July. The legislation clarifies certification requirements for survivor benefits under the Public Safety Officers Benefits Program to account for the unique challenges presented by the current coronavirus pandemic.

The Public Safety Officers Benefits Program, administered by the Justice Department, provides death benefits to survivors of police officers and first responders who perish in the line of duty or as a result of a work-related event. It also provides disability benefits to those who are permanently disabled due to their employment. The program requires evidence linking deaths or disabilities caused by an infectious disease to work-related activity. In many cases, the origin of an infection can be easily identified, but determining where and when someone contracts COVID-19 in the midst of a global pandemic presents a unique challenge.

SAFR works to overcome this challenge by establishing a temporary presumption that COVID-19 infections will be considered to be contracted while on duty if diagnosed within 45 days of an officer’s last shift. The legislation ensures that families of officers and first responders lost or disabled while fighting the pandemic don’t face unnecessary barriers to benefits they’ve already been promised.

LEOS Protection is proud to have supported this important legislation through the efforts of our Legislative Director. LEOS member groups such as the Air Marshal Association and the North Las Vegas Police Supervisor Association, as well as our individual member clients will benefit from this necessary clarification to the Justice department administered PSOB program.

Federal Employees Performing Military Duties During COVID-19

Wed, 15 Apr 2020 04:00:00 GMT

The Uniformed Services Employment and Reemployment Rights Act’s (USERRA) federal statutory and regulatory framework prohibits employers of all types and sizes from discriminating against applicants and employees based on their military status or obligations and establishes strong reemployment rights and protections for those military veterans returning to their civilian jobs (regardless of whether the military absence was voluntary or involuntary).

Until recently, many employers may not have faced significant issues under USERRA. Employers have not seen this type of surge in workplace military leaves of absences since 9/11. However, since the COVID-19 pandemic began, employers (both private and public) of all types and sizes across the country have seen their employees be “called up” by their respective state National Guards to help governors and state officials respond to the pandemic in myriad ways. These “citizen soldiers” are performing such functions as delivering meals to school children at home, building field hospitals to serve as overflow treatment centers, operating drive-through virus testing locations, guarding the National Strategic Stockpile, and enforcing governors’ shelter-in-place orders. As of April 13, 2020, there have been 29,000 Air and Army National Guardsmen mobilized in support of the COVID-19 response.

Of those 29,000 members mobilized during COVID-19, however, only 16,500 of them (57%) are on Title 32 orders. Title 32 of the United States Code puts Guard troops under state control but paid for by federal funds. However, the remaining thousands of Guardsmen leaving their civilian jobs to help the country battle COVID-19 are mobilized on State Active Duty (“SAD”), or state militia active duty, which falls under both the control of state governors and covered by state funding. This mobilization status is critical in understanding what servicemembers’ rights are while serving during the pandemic.

Unbeknownst to many, Guardsmen on state active duty or SAD orders—currently, approximately 12,500 members—are not protected by the federal USERAA law. The terms “uniformed services” and “service in the uniformed services” as used in USERRA encompass all facets of both Title 10 and Title 32 military service, along with some categories of persons designated by the President in time of war or emergency. However, those terms do not capture service in a state militia when under control of the governor and state funds. Contrary to the typical monthly Guard “drill weekends” and most other types of domestic Guard service with which employers are most familiar these days, the state militias’ response to assist state authorities with COVID-19 was not conducted under the authority of Title 32. Only recently did we see this beginning to happen as the President authorized state militias to operate under Title 32.

The impact of having thousands of Guardsmen serving in SAD status as opposed to Title 32 is that, unless there exists a state law that protects their civilian employment in the same manner as USERRA, there could be gaps in employment protections (including anti-discrimination provisions relating to military status) for these citizen soldiers. While most states have in recent years amended their state laws to provide such USERRA-type rights to Guardsmen operating under governor control and state funding, there are still some jurisdictions that do not have any protections in place. For example, the District of Columbia (which also has its own National Guard), lacks a USERRA-type law to grant Guardsmen in SAD status the typical employment protections available under the federal law.

It is imperative that employers know and understand what status applies to the Guardsmen in their employ who currently are on leaves of absence during COVID-19. While employers need to comply with USERRA and apply the federally-mandated protections to employees covered by the law, they may not be bound by the same stringent requirements concerning employees serving in SAD status unless a comparable domestic state law exists. Accordingly, employers must know whether their particular state’s militia laws extend employment protections and reemployment rights to their employees performing state active duty, and to what extent such protections and rights exist. Not only do these protections vary from state-to-state, but historically they also have varied depending on whether a person was employed by a company in State A but performed Guard duty in State B. While State B may have USERRA-like laws that protect the Guardsman’s employment rights, that law might not extend to State A’s employer. Numerous states amended their militia laws within the last few years to protect the civilian employment of Guardsmen performing state militia duties regardless of whether in the home state or another state. Previously, many states’ laws only protected employees who were performing Guard duties in the militia of that particular state.

Additionally, if there is a state law that grants employment protections to Guardsmen serving on state active duty, that law may incorporate verbatim the protections of USERRA. Alternatively, it may attempt to create its framework of protections without specifically invoking or incorporating USERRA. Therefore, employers should not simply assume that the same federal requirements apply (e.g., the escalator principle, the reasonable certainty test about promotions, the accrual of seniority, and rates of accrual of leave, etc.). Rather, a careful study is required of the particular state’s military/employment protection laws. The type of protections that exist may directly impact the employer’s obligations during three main phases: (1) the employee’s advance notice and departure; (2) the employee’s absence; and (3) the employee’s return.

If you have employees in the Air or Army National Guard who have had to serve in some capacity during COVID-19, we can help you ascertain the employee’s status and determine what specific laws and employment protections apply to such employees. Your compliance with all applicable laws—both the federal USERRA statutes and regulations and any state militia laws—will reduce your litigation risk when the pandemic clears and Guardsmen seek reemployment in their previous positions or escalator positions.

COVID-19 FECA, Telework, & Hiring Guidance from Federal Agencies

Fri, 10 Apr 2020 15:56:38 GMT

Guidance for Federal Employees during the COVID-19 Pandemic

The COVID-19 pandemic has affected day-to-day life and work across the country. While it seems that the situation and best practices to deal with the effects of the virus on our work and life may change daily, the government has responded with groundbreaking emergency aid legislation.

The Families First Coronavirus Response Act contains provisions for paid sick leave as well as extended unemployment aid for those who qualify.

Similarly, during this time of uncertainty several governmental agencies have provided guidance for federal employees for policies related to workers’ compensation benefits, working from home and the on-boarding process for new employees.

Federal Employee’ Compensation Act

The Federal Employees’ Compensation Act, (FECA) provides workers’ compensation coverage to approximately 2.6 million federal workers for employment-related injuries and occupational diseases.

The Division of Federal Employees’ Compensation within the U.S. Department of labor has created new procedures specifically addressing COVID-19 claims.

Federal employees who develop COVID-19 while in the performance of their federal duties are entitled to workers’ compensation under the FECA.

Special case handling considerations are given to federal workers that are engaged in high-risk employment, such as members of law enforcement, first responders, and front-line medical and public health personnel. This includes TSOs due to the frequency of their work with the public.

OWCP will accept the exposure to COVID-19 of high-risk employees was proximately caused by the nature of the employment; however, a positive COVID-19 test is required to file an OWCP claim.

Teleworking

As part of the strategy to limit the continued transmission of the virus, employees who have the option have begun to work from home. Recently, on March 15, 2020 in a memo from the Office of Management and Budget, the White House has authorized federal agencies to “offer maximum telework flexibilities to all current telework eligible employees.”

For many this also requires caring for children who are no longer able to attend school while working from home. For telework-eligible employees who have caregiving responsibilities, agencies were encouraged to offer flexible work schedules during which employees may perform telework. This would allow an employee to determine his or her own work schedule within the limits set by the agency.

On-boarding

On March 24, 2020, the OPM released guidance for new employees and the on-boarding process. Administering the oath of office may be done virtually through Skype, FaceTime, or Zoom. The new employee should also send an electronic version of the signed document. Other forms required or used in the on-boarding process should also be made available electronically to the extent practicable.

However, agencies that are able to collect and process fingerprints will continue to do so. Agencies will delay reporting the final adjudication of the background investigation until a fingerprint check has been completed and considered in the adjudication. Existing mechanisms for measuring the timeliness of adjudication compliance will continue; however, agencies will not be held accountable for adjudication reporting timeliness during the period this guidance is in effect.

The OPM also released several memos in late March to give agencies increased hiring authorities to deal with the coronavirus outbreak. Federal agencies will have rotational opportunities for federal employees to support the COVID-19 response. The COVID-19 Response Program will use Open Opportunities, a government-wide platform offering professional development opportunities to current federal employees. The platform provides a centralized location where federal agencies can post details, micro details, and/or temporary rotational assignments.

SUPREME COURT SAYS FEDERAL WORKERS CAN SUE OVER “ANY” AGE BIAS

Wed, 08 Apr 2020 16:10:49 GMT

On April 6, 2020 the United States Supreme Court ruled that federal government employees can sue for age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”) when age bias merely taints the decision-making process, not only when age bias plays a determinative “but for” role in the employment decision. Babb v. Wilkie, Secretary of Veteran Affairs, ---S.Ct.---, 2020 WL 1668281 (Apr. 6, 2020). “If age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination.”

The Court in an 8-1 decision agreed with Department of Veterans Affairs (“VA”) pharmacist Noris Babb that the requirement in the ADEA that federal agencies’ personnel decisions be “made free from” bias means that age cannot be used as a factor. The Court’s decision focused on the federal-sector provision of the ADEA, 29 U.S.C. § 633a(a), which does not apply to private or state and local government employees and, which now, is seemingly broader than its counterpart.

The ADEA prohibits employers from discriminating against employees or from taking adverse employment actions against employees “because of an individual’s age.” 29 U.S.C. § 623. That statute pertains to private or state and local government employees. To prove an age discrimination claim under that statute, those employees must demonstrate that the adverse employment action would not have occurred “but for” age bias. The language in the federal sector statute applicable is different. There, the provision applicable to federal employees states: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age… shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). Justice Samuel Alito, writing for the Court, wrote in the opinion that the language in Section 633a is broader than the language in Section 623, and that it was:

[N]ot anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. When Congress expanded the ADEA’s scope beyond private employers, it added state and local governments to the definition of employers in the private-sector provision. But it ‘deliberately prescribed a distinct statutory scheme applicable only to the federal sector,’ eschewing the private-sector provision language. That Congress would want to hold the Federal Government to a higher standard is not unusual.

Justice Clarence Thomas was the lone dissenting judge. In his dissent, Justice Thomas said the Court had departed from the general rule that discrimination must be the sole cause of an employment decision for it to be actionable, but it had not cited any language in the ADEA that creates such an exception. The Court’s new rule, Justice Thomas wrote, “is so broad that a plaintiff could bring a cause of action even if he is ultimately promoted or hired over a younger applicant.”

In her 2014 lawsuit filed in a federal court in Florida, Babb claimed that the VA denied her promotions and training opportunities that were granted to younger colleagues, which violated the ADEA. The District Court subsequently found, evaluating Babb’s claim under the burden-shifting framework outlined in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), that Babb had established a prima facie case, that the VA had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual.

Babb appealed the District Court’s dismissal of her claim to the Eleventh Circuit U.S. Circuit Court of Appeals. On appeal, Babb contended that under the terms of the ADEA's federal-sector provision, a personnel action is unlawful if age is a factor in the challenged decision. As a result, she explained that even if the VA's proffered reasons were not pretextual, it would not necessarily follow that age discrimination played no part. The Eleventh Circuit affirmed the District Court’s decision finding that Babb’s argument was foreclosed by Circuit. Notably, however, the Eleventh Circuit added that it might have agreed with her if it were “writing on a clean slate.”

Although the Supreme Court found that while could Babb establish that the VA violated Section 633a(a) without proving that age was a but-for cause of the VA’s personnel actions, Babb agreed, and the Supreme Court acknowledged that the but-for causation was important in determining the appropriate remedy. “It is bedrock law that ‘requested relief’ must ‘redress the alleged injury.’” Therefore, Section 633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome. If plaintiffs demonstrate that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself, there is still a remedy. In that situation, plaintiffs can seek injunctive or other forward-looking relief that a district court deems appropriate.

OWCP New Medical Bill Processing System

Tue, 07 Apr 2020 04:00:00 GMT

On April 27, 2020, OWCP will launch its new Workers’ Compensation Medical Bill Process system, (WCMBP).

This begins with transferring all medical bill process services to OWCP’s new bill pay contractor, CNSI.

The new system will allow claimants, survivors and authorized representatives to submit bills for reimbursement, track authorizations, check eligibility, view case status and view bill history.

If you haven’t done so, you will need to register with OWCP Connect to authenticate to the new system. If you aren’t signed up with OWCP connect, you will not have access to the new system.

Here is the OWCP Connect link: https://owcpconnect.dol.gov/owcplogin/

You will be receiving a welcome letter with a Medical Benefits ID card, (MBIC). This card will have a case ID number, which will identify you in the new system and you will need to provide a copy of your ID card to your providers.

Your providers will also be receiving letters explaining how to access the new system and how to register with the new system.

The letters and ID cards are scheduled to be mailed out prior to 04/27/2020

You can go to https://prod.wcmbp.com/outreach for webinars and information pertaining to the transition. This link will be available until April 24, 2020.

Conduent (the current bill pay contractor) will only provide OWCP pharmacy bill processing services and will be utilizing a new web address URL and new mailing address.

The new web address for Conduent will be https://owcprx.dol.gov

OWCP Pharmacy providers should begin using the new PO Box now.

Any submitted pharmacy bills and/or correspondence sent to the old OWCP Central Mailroom PO Box after April 17, 2020 will be returned unprocessed.

OWCP pharmacy-related bills and pharmacy correspondence should now be mailed to:

Department of Labor Pharmacy Bill Processing, DFEC

PO Box 8308

London, KY 40742-8308

TSA Canine Officer Frank Boccabella III

Sat, 04 Apr 2020 19:12:41 GMT

The LEOS Protection team is stunned and saddened by Frank's passing, and our heart goes out to his loved ones. Please keep Frank's wife and family in your thoughts and prayers.

Frank had a heart of gold, and will be sorely missed. In 2018, Frank helped organize TSA Canine Officers under LEOS Protection and even set up a LEOS seminar in Newark NJ. Frank had suffered a workplace injury, and LEOS helped him receive the federal benefits he was entitled to. He was very grateful, and became a big supporter of LEOS Protection.

What I liked most about Frank was how genuine he was, nothing fake about him. He always had a smile, and was upbeat and positive throughout all of his trials. He was a big teddy bear, and he was loved and respected by all of his coworkers. He loved the dogs he worked with, and looked forward to going to work and making a difference. Frank was taken away from us far too early. His passing from COVID-19 is a shock and a loss to the entire federal community.

If you are symptomatic, please get to a testing facility immediately so you can receive treatment as early as possible. Call or email LEOS for immediate assistance with filing any COVID-19 related claims to ensure that your loved ones are provided for.

Stay safe

Relief Checks For OWCP/Social Security Recipients

Thu, 02 Apr 2020 00:00:00 GMT

If you rely on non-taxable government income, i.e., SSI and OWCP compensation, you may still qualify for a relief check.

Relief checks are going to be based on adjusted income on tax returns. If there is no tax return, they will use the 1099 form from Social Security.

Amounts are as follows:

$1,200.00 if single at $75,000.00
$2,400.00 if married filing jointly at $150,000.00
$500.00 per child 16 years or younger

The $1,200.00 amount is reduced $5.00 per $100.00 for incomes above $75,000.00 if single and $150,000 married, filing jointly.

There is no relief check for incomes over $99,000.00 with one child if single or $198,000.00 married, filing jointly.

Those with direct deposit who qualify will have their checks deposited directly into their bank accounts. Those without direct deposit will be mailed a check.

They expect mailed checks to take much longer; current estimates are up to five months to receive a check in the mail.

The Treasury will be setting up a web-based portal where those who do not have direct deposit can sign up for direct deposit. We will post that information when it becomes available.

Payments are expected to begin in the next two weeks.

Don’t fall for scams

Coronavirus relief check scams are already popping up. Currently, scammers are contacting people (usually by phone) pretending to be from the IRS or other government agency telling people they need their bank account or other personal information to deposit their check.

If you’re entitled to a relief check, it will be automatically deposited or mailed to you, there is nothing you need to do to receive your relief check.

The government will not be calling you for information and if anyone does, they are a scammer, plain and simple.

The OWCP Field Nurse Program is Voluntary

Fri, 27 Mar 2020 00:00:00 GMT

The OWCP Field Nurse Program is Voluntary

Recently, I stumbled on a July 2018 article on a blog written by a law firm that claiming they have been assisting injured federal employees since 1994. The article was about OWCP field nurses.

According to this law firm, a claimant should be as cooperative as possible with an OWCP field nurse.

The article says:

"First, it is important that you remain calm and concede to have a nurse attached to your OWCP federal workers’ compensation case. This is because refusal would look like you are being uncooperative which might make FECA cut off or reduce your payouts. As such, you should speak to the attending nurse and accept their requests to attend your doctor’s visits. However, resist the urge to tell them about your condition should they ask you; this is because they are not on your side and may just be looking for a loophole or piece of information to influence OWCP’s decision to take you off compensation. Your answers should be ‘yes’ or ‘no’, and should always refer them to your physician the minute they start asking convoluted medical questions."

The article goes on to say:

"...it’s in your best interests to be as cooperative as you can without being verbose to avoid sabotaging your compensation."

The only accurate part of this statement is that OWCP’s field nurse is not on your side and is looking for a way to sabotage your claim.

The Federal Employees Compensation Act or FECA doesn't cut off your benefits. FECA is the law, the Act under which OWCP benefits are paid.

The OWCP field nurse program is VOLUNTARY . You DO NOT have to "concede" to have an OWCP field nurse attached to your claim and you don't have to be cooperative.

OWCP CANNOT reduce or suspend your benefits if you are "uncooperative" with their field nurse. Being "uncooperative" doesn't "sabotage" your claim because the field nurse program is VOLUNTARY .

You DO NOT have to allow a field nurse to attend your medical appointments and you DO NOT have to allow a field nurse access to your doctor or refer them to your doctor if they ask medical questions because OWCP’s field nurse is VOLUNTARY .

OWCP’s regulations are extremely complicated and claims are complex. Many out there claim to be OWCP experts but don’t even know the basics and that inexperience can have disastrous results to a TSO with a work-related injury.

At LEOS Protection, we have the knowledge and experience to handle the complexities of OWCP claims, and we work hard to protect your rights.

Union Fees Collection after Janus

Mon, 23 Mar 2020 00:00:00 GMT

In June 2018, a Supreme Court case changed the labor union landscape by overturning forty years of case law.

In Janus v. American Federation of State, County, and Municipal Employees Council 31 (“AFSCME”), the Supreme Court ruled against mandatory union fees and held that state government workers cannot be required to pay “fair share fees” or “agency fees.” The Court found that forcing someone to pay a union fee violates First Amendment protections of free speech and association.

Before Janus, unions were allowed to collect agency fees from nonunion members to recover costs of collective bargaining, contract administration, and grievance adjustment purposes. The Janus case has created widespread implications for agency employers that will continue to develop. After Janus, public sector unions cannot demand fair share fees, which typically made up 70 to 80 percent of full union dues, and employers cannot collect such fees from an employee’s pay without clear and affirmative consent.

Takeaway: An agency employer cannot collect fees from nonunion members unless an individual clearly and affirmatively agrees to pay fees.

Even more recently, on February 14, 2020, the Federal Labor Relations Authority found that the ruling in Janus generally applies to agencies and labor organizations in regard to federal employees’ requests to revoke union dues assignments (71 FLRA No. 107).

The FLRA came down with a 2-1 decision that found that upon receiving an employee’s request to revoke a previously authorized union‑dues assignment, an agency should process the request as soon as administratively feasible, as long as one year has elapsed since the original dues authorization. In other words, an employee may revoke a previously authorized dues assignment at any time he or she chooses after the initial one-year period that he or she first authorized the assignment.

Takeaway: An agency employer should process employee requests to revoke union dues assignments as soon as administratively feasible as long as one year has passed since the employee first authorized the assignment.

From requiring clear and affirmative consent to collect fees to allowing cancellation of automatic payments, the Supreme Court’s decision in Janus has had widespread effects that will likely continue to evolve.

Probationary Federal Employees and Their Rights

Fri, 20 Mar 2020 00:00:00 GMT

Many federal probationary do not fully understand their employee rights, and such rights are often not fully explained by federal agencies to employees.

A probationary period takes place in the competitive service and a “trial period” is often used to describe a similar period in the excepted service. In both cases, the purpose is to provide a federal agency with the opportunity to assess if the employee will be an asset to the government prior to finalization of the appointment.

No matter how thoroughly an employer interviews a potential employee and checks his or her references, there are bound to be surprises when a new employee begins working for an employer. Sure, some of the surprises may be good. Perhaps the employee is very personable and is an exceptional learner. On the other hand, the surprises may be bad such as when an employee is consistently tardy or when an employee is unable to work in partnership with other employees. Those are the sorts of things the government, or any employer, would not know until the employee started the job. As a result, the government requires employees to complete a probationary period to ensure that the hiring decision was correct, and that the employee is an asset to the government.

Probationary periods typically last one or two years. If a federal employee completed their probationary period, the employee becomes a permanent federal employee who is awarded a high level of protection from improper employment actions by federal agencies. However, during the probationary period employees have very limited procedural and appeal rights. Those limited rights are derived from regulations issued by the U.S. Office of Personnel Management.

The very nature of the excepted service is that it is excepted from the ordinary rules of the competitive civil service. OPM issued fewer regulations that apply to the excepted service; however, those agencies possess the ability to issue their own regulations and policies governing such employment.

Removals for Conditions Arising Before the Appointment

Pre-appointment conditions involve something that transpired prior to hiring, such as lying about the employee’s background or falsifying a resume. When a probationer in the competitive service is removed for conditions arising before appointment, the individual is entitled to:

Advance written notice stating the reasons, specifically and in detail, for the proposed action.
Reasonable time for filing a written response to the notice of proposed adverse action. If the employee responds, the agency shall consider the answer in reaching its decision.
Written notice of the agency’s decision in writing, which informs the employee of the reasons for the action, informs the employee of his right of appeal to the Merit Systems Protection Board and the related time limit to file an appeal. See 5 CFR § 315.805

An appeal of a decision to remove an employee from federal service due to conditions arising before the appointment typically involves allegations that the removal did not comply with those requirements. However, the employee may also appeal the removal decision for the reasons set forth in 5 CFR § 315.806, i.e., if the removal was based on partisan political reasons or marital status. If the appeal is based on marital status, the employee must prove that the removal was based on marital status discrimination. Partisan political cases allege that the removal was based on the employee’s political beliefs or support.

Removals for Reasons of Unsatisfactory Performance or Conduct During Probationary Period

In contrast, when an agency decides to remove an employee serving a probationary or trial period because the employee’s work performance or conduct during the period was unsatisfactory, the employee has fewer procedural protections. In that situation, the employee is only entitled to notice as to why the employee is being removed and the effective date of the removal. The information in the notice as to why the employee is being terminated shall, at a minimum, consist of the agency’s conclusions as to the inadequacies of the employee’s performance or conduct. See 5 CFR § 315.804. This kind of removed employee only has the limited appeal rights set forth in 5 CFR § 315.806.

Probationary Employees in the Transportation Security Administration

The Transportation Security Administration was created by the Aviation and Transportation Security Act of 2001 (“ATSA”). Unlike most federal employees who are covered by Title 5 of the United States Code, ATSA placed TSA employees outside of Title 5’s protections. Most TSA employees are in the screening workforce and are covered by Section 111(d) of the ATSA, which states: “Notwithstanding any other provision of law, [TSA] may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code.”

What does that mean? It means that the TSA is allowed to issue whatever employment policies it deems fit and that that TSA employees do not have the same, if any, civil service protections that other federal employees enjoy. For example, per TSA policy, at any point during the basic trial period when a supervisor determines that an employee’s performance or conduct is unacceptable, the supervisor may initiate a removal. The notice of removal must be in writing and briefly states the underlying reason(s) for the removal and the effective date. There are no other requirements and the employee does not have appeal or grievance rights with respect to the removal.

Other Options for Probationary Employees

There are several other options for removed probationary employees. If the employee believes the removal was discriminatory and based on race, religion, national origin, sex (including pregnancy, gender identity, and sex stereotyping), age, disability, genetic information, and/or reprisal, the employee can file an Equal Employment Opportunity complaint. A probationary employee could also file a whistle blower complaint, a USERRA complaint based on military discrimination, or there otherwise may be issues with the way the agency calculated the employee’s probationary period which the employee could challenge.

Coronavirus, the ADA, and EEOC guidance

Sat, 14 Mar 2020 00:00:00 GMT

Employers and government agencies need to apply a cautious approach to confronting the novel coronavirus. Some employers are considering measuring the temperatures of their employees before they report to work, since a fever may be a symptom of the coronavirus. The Centers for Disease Control and Prevention defines a fever as 100.4°F/38°C or higher. The EEOC has pushed out guidance for pandemic preparedness in the workplace (which is generally the same as for the prior H1N1 and SARS events) .

Is a Temperature Test a Medical Examination Under the ADA?

The Americans with Disabilities Act does not define “medical examination.” However, the Equal Employment Opportunity Commission defines “medical examination” as a “procedure or test that seeks information about an individual’s physical or mental impairments or health”:

“The ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances… The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that :

An employee’s ability to perform essential job functions will be impaired by a medical condition; or

An employee will pose a direct threat due to a medical condition.

This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.”

All information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential. Information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.”

Accordingly, the agency may have authority to screen employees for fever before allowing work to commence, but results of any such tests must be strictly confidential and not populated into the employee’s job file or employment records. In prior guidance, the EEOC took the position that a temperature test in the event of a pandemic may be justified by business necessity. There is scant case law on the issue. An employer can minimize, but not eliminate, the ADA risk by making clear the temperature test is to determine whether someone has symptoms, not whether he or she has an impairment or medical condition.

The fact that having a fever does not mean an individual has COVID-19 or any other disability as defined by the ADA may be helpful but may not be determinative in whether a claim is brought and/or successful. The agency would be well advised to consult with the AMA first. Because temperature testing may benefit the majority of the workforce, the AMA may approve of such testing.

Abusive agency practices or violations of the rights of the workforce may result in a complaint filed with the NLRA. If a group of employees refuse to submit to testing, a real possibility that needs to be considered, particularly in light of privacy concerns. the employees most likely are engaging in protected concerted activity under the NLRA.

Employers need to be clear that the fact an individual does not have a temperature does not mean that he or she does not have Covid 19 or any other medical condition. It is a precaution; it does not equal prevention. Further, the CDC generally recommends that an individual who had a fever not return to work until the fever is gone for at least 24 hours without fever-reducing medicines. In the event the employee has been diagnosed with COVID-19, the waiting period likely would be longer, for example, three days after the cessation of symptoms without medication.

This information is furnished to you by our LEOS Protection partners.

Traumatic Injuries: What To Do When Injured At Work

Fri, 06 Mar 2020 00:00:00 GMT

As a federal employee, workplace injuries can be stressful. Often, managers do not know what to do or understand the process. If you sustain an injury at work, or realize your job has contributed to a medical condition, follow these steps:

Report to Supervisor:

Every job-related injury should be reported to your supervisor as soon as possible.

*Injury also means any illness or disease that is caused or aggravated by the employment.

Medical Care:

Before you obtain medical treatment, ask your supervisor to authorize medical treatment by use of form CA-16. You may initially select the physician to provide necessary treatment. This may be your private physician.

Take the form CA-16 and form OWCP-1500/HCFA-1500 to the provider you select.

Emergency medical treatment can be obtained without prior authorization.

*The form OWCP-1500/HCFA 1500 is the billing form physicians must use to submit bills to OWCP. Hospitals and pharmacies may use their own billing forms.

File Written Notice:

Complete the employee's portion of Form CA-1. You can obtain the form from your employing agency, or online at https://www.dol.gov/owcp/regs/compliance/ca-1.pdf

For #13 cause of injury, provide a brief description. If required, you will be asked by OWCP to provide a more detailed description.

For #15, select Continuation of Pay*, (COP). You can also use your leave if you wish, but using your leave is not required.

Once complete, turn the CA-1 in to your supervisor as soon as possible. This constitutes Written Notice.

*Continuation of Pay:

If you cannot work due to traumatic injury, you may claim COP. This ensures the agency pays you for the first 45 calendar days after your injuries.

If you can work but require medical treatment, COP pays you to attend medical appointments. COP is calculated only by days so if you leave work and attend a medical appointment for four hours, your COP is charged one day.

Obtain Receipt of Notice:

A "Receipt" of Notice of Injury is attached to each Form CA-1 (page 4). Your supervisor should complete the receipt and return it to you for your personal records. If it is not returned to you, ask your supervisor for it.

Other Important Information:

The agency may give you an ‘injury packet’. This will have different forms the agency will instruct you to complete.
The majority of these forms are created by the agency, to benefit the agency and are not required to file your claim.
If you cannot work due to your injuries, only the CA-1 form needs to be completed.
If you can work but require physical restrictions, then you would take the PEPR and MPIS forms to your doctor and have your doctor complete the forms. Keep a copy for yourself, send a copy to OWCP and give the agency a copy.
None of the other forms should be completed, signed, and returned to the agency, especially the FECA Rights and Responsibilities and the Medical Release forms.
The agency may assign a nurse to you. You have no obligation to talk to the nurse, discuss anything relating to your claim, or provide the nurse any information or any documentation.
The agency’s nurse has no authority in your claim and is hired by the agency to help the agency not you. The agency’s nurse has no ability to facilitate or authorize anything relating to your claim.
Any medical documentation is sent to OWCP, not the agency. The agency only gets the completed CA-1 and the PEPR and MPIS forms if you can work.
The agency makes no decisions in your OWCP claim. Only the Department of Labor has the authority to make a decision in your claim.
Write your claim number in the upper right hand corner of every page sent to OWCP for identification. Remember to keep copies for yourself.
If you upload documents, you’ll be given a Document Control Number, (DCN) once your upload is complete. Write this DCN on your uploaded document for future reference.

Keeping thorough records and having proper documentation will ensure you are in the best possible position to advance your federal worker compensation claim.

Coronavirus COVID-19 - Protect Yourself

Mon, 02 Mar 2020 00:00:00 GMT

Airport employees, TSA, CBP, and Border Officers could be at higher risk of the recent Coronavirus, also known as COVID-19.

While employees who are infected while in performance of their job duties are covered by OWCP for infectious diseases, these claims are unique and complex.

LEOS Protection has the knowledge and expertise to handle these, and all other OWCP claims!

LEOS covers our members for OWCP claims, disability retirement, disciplinary actions, grievances, EEOC claims and more. Our representation is unmatched, and it's never more apparent than at times like these.

Be safe out there, follow established hygiene protocols, and contact LEOS Protection with questions.

TSA Makes Suicide Prevention a Priority Goal

Sun, 15 Sep 2019 00:00:00 GMT

September 15, 2019

The TSA has elevated suicide prevention to a top priority for leadership after agent Robert Henry’s public suicide at the Orlando International Airport.

In a proposal obtained by WMFE, the NPR station in Orlando, the agency said Henry’s suicide and the reporting afterward alerted the agency to the problem.

“The most recent workplace suicide of a transportation security officer (TSO) plunging to his death inside Orlando International Airport shocked the agency, and together with the accompanying media coverage alerted the agency to the growing, disturbing national public-health crisis,” the document says.

Before Robert Henry killed himself in February, he sent an email to family friends saying, “Tell my managers I’ll be waiting for them in Hell.”

A WMFE investigation found Henry was bullied at work, and that the Orlando airport has a long history of bullying and harassment.

“To improve the resiliency of the TSA workforce and reduce security risks associated with suicidal employees, the TSA Administrator has elevated suicide prevention training to a priority senior leadership goal in his 2019-20 ‘Administrator’s Intent’ directive,” the document says.

Deborah Hanna is the head of the union representing TSA workers in Orlando. She said if something good comes from Henry’s death, she’s all for it.

She said a few years back, she had two officers attempt suicide in the span of three weeks.

“Thank God neither one of the officers committed suicide,” Hanna said. “I knew who to call and what to do, but it wasn’t from any training that I had at TSA when I started, I can tell you that.”

TSA officials declined an interview, but in documents, the agency says it averages between five and 15 documented employee suicide annually. Based on national statistics, the agency thinks there are 500 unreported suicide attempts.

Stan Tuchalski was Henry’s friend and manager and currently works at Orlando International Airport. He said the training could help save lives.

“I firmly believe that from what talk has said, that he clearly gave some indications, on the day of, that people missed the cues,” he said.

Late last month, TSA solicited for a contractor to create an online suicide training program for all TSA employees and to do in-person work with up to 50 TSA trainers.

Tuchalski says the training should be offered to any officer who is interested in learning about the signs of suicide.

The original article has been re-posted and can be found here:

https://wusfnews.wusf.usf.edu/post/tsa-makes-suicide-prevention-priority-goal

Judges say travelers can sue TSA over screener mistreatment

Sat, 31 Aug 2019 00:00:00 GMT

August 31, 2019

PHILADELPHIA (AP) — A U.S. appeals court says travelers can sue the government over mistreatment by federal airport screeners because the agents can act like law enforcement officers, including when they conduct invasive searches.

The 9-4 decision Friday by the 3rd U.S. Circuit Court of Appeals overturned earlier rulings and is a setback for the Transportation Security Administration and its screeners.

The government is generally immune from lawsuits, but a federal law lets people sue over the actions of officers who can conduct searches and arrest people.

A district court and a three-judge panel of the same appeals court said TSA officers are just screeners who inspect passengers and bags. The full appeals court said, however, that screeners aren’t entitled to immunity from lawsuits because they perform searches for violations of federal law.

The court majority noted that TSA calls the screeners officers, they wear uniforms with badges including that title, and hold positions of authority.The judges also rejected the government’s argument that airport screening is different from a search because airline passengers consent to it. They said it’s indeed a search — noting that screeners can explore a passenger’s entire body including sensitive areas.

A Florida woman, Nadine Pellegrino, sued over a search at the Philadelphia airport in 2006, saying screeners damaged her property and falsely claimed she hit them with a bag. She was arrested but found not guilty at trial.

Pellegrino and her husband asked the TSA for $951,200 in damages. When their claim was rejected, they sued the TSA and three TSA employees.

The court said the overwhelming majority of TSA screeners do vital security work in a professional way and often without appreciation. But, the judges said, if the lower-court rulings stand it would leave travelers with no remedy even if they are assaulted, wrongfully detained or hit with fabricated charges.

The four-judge minority said the screeners should get immunity from lawsuits partly because they conduct “routine, suspicionless searches” that are now standard at airports.

The Justice Department declined to comment when asked whether it plans to appeal to the U.S. Supreme Court.

This article may be found on the Associated Press website here:

https://apnews.com/de76f18824324fd282e6d55aed19d6bd

Clark Hill / LEOS Files Government Shutdown Lawsuit

Thu, 10 Jan 2019 00:00:00 GMT

Clark Hill / LEOS files government shutdown lawsuit

On January 10, 2019 Clark Hill / LEOS filed a Complaint in the United Stated Court of Federal Claims regarding the partial government shutdown on behalf of three LEOS Protection members and other similarly situated federal employees.

Clark Hill has successfully litigated complex lawsuits on behalf of federal employees including EEOC class actions and two current FLSA pay and overtime lawsuits. Clark Hill / LEOS has coordinated hundreds of employee complaints, employment actions, lawsuits, and defenses on behalf of federal employees over the past decade, and no other legal group is more experienced with specific federal agencies than our 700+ attorney firm.

Any government employee forced to work without pay during the period of the partial government shutdown beginning December 22, 2018 may join. There is no fee to join this suit. Should there be a recovery under the FLSA, the government may be required to pay some amounts for attorney's fees and costs of the suit directly to CH pursuant to statute. CH's contingent fee will ultimately be set by the Court as part of case proceedings. Also, having joined another similar suit does not prohibit you from also joining this LEOS suit.

If you would like to join the lawsuit, click on the buttons below. Please print, sign, scan and return the two forms to fedshutdown@clarkhill.com.

FLSA Shutdown Consent Form

FLSA Shutdown Retainer Agreement

During a shutdown, everyone loses. Citizens lose services, government workers lose pay, and tensions run high between workers and managers creating a hostile environment. We are committed to recovering a settlement for government workers made to endure these conditions.

LEOS seminar - Newark, NJ

Wed, 01 Aug 2018 00:00:00 GMT

Federal workers receive free legal advice from LEOS Protection

On Wednesday August 1, 2018 LEOS Protection hosted a seminar for federal workers at the Marriott Hotel on the property of Newark's Liberty International Airport. Dozens of federal workers had questions about a wide range of topics, including agency disciplinary actions, OWCP claims, OPM disability retirement and EEOC complaints. Ask the experts at info@leosprotection.com

Federal Circuit Revives Secret Service Wage Claim

Tue, 24 Jul 2018 00:00:00 GMT

Federal Circuit Revives Secret Service/Diplomatic Security Service Wage and Hour claim

The Federal Circuit on July 19, 2018 revived a U.S. Secret Service special agent’s proposed wage-and-hour class action alleging that he and other agents were shorted on overtime, saying the Office of Personnel Management improperly required that certain hours be worked consecutively to trigger overtime. The decision may also impact pay polices of the Diplomatic Security Service.

The complaint was originally dismissed by the Court of Federal Claims but that decision was reversed with respect to one element of compensation for agents: overtime pay where the agents are required to work two additional hours of overtime on top of their Law Enforcement Availability Pay enhancement. The OPM rule requiring that certain overtime hours be worked consecutively in order for them to be compensable runs counter, according to the court, to Section 5542 of Title 5 of the U.S. Code — a law governing overtime pay.

“Because we find that those challenged regulations are contrary to the unambiguous meaning of the relevant statute, we reverse in part the claims court’s dismissal of Mr. Horvath’s complaint and remand for further proceedings,” the panel said in its decision.

The OPM rule at issue interpreted the statute for overtime pay to mean that any two extra hours had to be worked consecutively to be compensated.

In its ruling, the Court said that the Claims Court was wrong to accept the government’s argument that its interpretation of the law was reasonable and should be afforded deference. “While the text of Section 5542(e) is silent, the rest of Section 5542 suggests that the consecutive-hours requirement is not appropriate,” the panel said. “When the statute refers to periods of hours, it consistently does so in a manner that clearly refers to a cumulative tally of hours, which are not always consecutive.”

Moreover, the panel noted that OPM’s consecutive-hours requirement doesn’t comport with the statute’s legislative history, noting that Section 5542(e) didn’t exist when LEAP was first passed and was inserted later by Congress, which designed it to help people like Secret Service agents.

The Federal Circuit directed the lower court on remand to assess whether class certification is warranted with respect to the claim that agents were denied overtime under OPM’s consecutive-hours rule. What this decision means for current and former agents is that you may be entitled to monetary damages based on the Agency failure to properly compensate you for all overtime worked over the past three to five years. If the court approves the class certification, notices may be posted in field offices or you may receive a notice of class action to opt in to participation in the suit.

Counsel for the plaintiff includes the law firm of Clark Hill, which is national plan counsel for the Law Enforcement Officer Services (LEOS) legal defense plan tailored exclusively for federal employees and federal law enforcement officers. LEOS is designed to proactively represent the interests of federal workers in agency disciplinary, pay, and policy disputes for a monthly plan membership fee. Details of the LEOS plan can be found at www.leosprotection.com .

The May 25, 2018 Trump EOs - what it means to you

Sat, 07 Jul 2018 00:00:00 GMT

In today's federal workplace, you must protect your career and benefits.

On May 25, 2018 President Trump signed Executive Order (EO 13839) which will significantly impact the federal work force and in particular the manner in which federal LEOs may negotiate disciplinary and separation issues. The order, named Promoting Accountability and Streamlining Removal Procedures Consistent with Merit Systems Principles, has the stated goal to ensure that “employees should be retained based on the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.”

The order was immediately met with criticism by federal employee organizations who believe the Executive Branch is intruding into the administrative discretion of multiple federal agencies. Important elements of the order include:

Supervisors and deciding officials should not be required to use progressive discipline. The penalty for an instance of misconduct should be tailored to the facts and circumstances of the particular case.

When taking disciplinary action, agencies should have discretion to take into account an employee's disciplinary record and past work record, including all past misconduct -- not only similar past misconduct.

Agencies should prioritize performance or length of service when determining which employees will be retained following a RIF.

No agency shall subject to a grievance procedure or binding arbitration disputes concerning the assignment of ratings of record.

Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee's performance or conduct in that employee's official personnel records, including an employee's Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.

The LEOS legal plan has successfully mitigated or obtained rescission of multiple disciplinary proposals over the last seven years based on defusing disciplinary proposals at the agency level and not requiring the involvement of the MSPB except in extreme cases. Strategies for defending against proposed discipline or removal may need to evolve as the Agency digests the presidential order and issues new regulations for administration of discipline. The prior policy embracing the use of progressive discipline may become secondary to the proposing official’s individual view of the specific conduct at issue in an investigation. Second step grievance procedures may also be streamlined or eliminated.

Once important change will be employees’ ability to negotiate terms of separation through the settlement or MSPB process. Previously, LEOS plan counsel has been successful in negotiating a “clean SF-50” as part of a settlement including separation. This order may eliminate use of that as a tactic or purpose for filing any MSPB appeal or with dealing with a potential removal.

The OPM Director is allowed 45 days from May 25, 2018 to determine whether existing regulations need to be revised or proposed to effectuate the principles of the order. Agencies are required, within 45 days of the order, to revise their discipline and unacceptable performance policies to conform to the principles and requirements of the order and to further revise policies within 45 days of any new final OPM regulations.

The entire order can be accessed at this link:

https://www.whitehouse.gov/presidential-actions/executive-order-promoting-accountability-streamlining-removal-procedures-consistent-merit-system-principles/

The playing field has been changed by this order. The LEOS legal plan and its attorneys will respond to any new regulations aggressively in an effort to protect the position of plan members under threat of disciplinary action.

Clark Hill, Strasburger & Price Announce Merger

Tue, 10 Apr 2018 00:00:00 GMT

Firm Will Have 25 Offices In U.S., Ireland And Mexico

Expansion Will Enhance Client Value, Extend Industry Reach And Create a Firm with Nearly 650 Attorneys

Apr 10, 2018

DETROIT & DALLAS - Clark Hill, an international, full-service legal and professional services firm with more than 450 lawyers in 17 offices, and Strasburger & Price, a highly respected firm with nearly 200 lawyers in 9 offices in Texas, New York, Washington, D.C. and Mexico City, today announced plans to merge effective tomorrow, April 11, 2018. Together the two firms will have more than 200 years of combined history providing legal services to clients.

“Strasburger’s core values and culture are well aligned with ours and its commitment to the highest levels of client and community service is just as strong,” said John Hern, CEO of Clark Hill. “This merger aligns perfectly with our strategy of expanding into high growth markets which is also where our clients are moving and where they need our services.”

The combined firm will have nearly 650 lawyers with 25 offices in 11 states, the District of Columbia, Ireland, and Mexico and will be known as Clark Hill except in Texas, where it will operate as Clark Hill Strasburger.

This combination will strengthen and enhance Clark Hill’s resources in the booming energy, oil and gas, construction, retail, tax and healthcare sectors in Texas where Strasburger has offices in Austin, Beaumont, Collin County (Frisco), Dallas, Houston and San Antonio. It will provide Strasburger with a significantly enhanced national platform with resources in many more U.S. financial and business centers.

“Both firms already have deep regional roots and together have a national reach in the key industries and practices driving the global economy,” said Daniel L. Butcher, Managing Partner of Strasburger. “This combination will expand our ability to help clients take advantage of business opportunities and resolve their legal challenges.”

Founded in 1890, Clark Hill is an entrepreneurial firm that provides business, government and public affairs, and personal legal services to clients in the U.S. and abroad from offices coast to coast and in Dublin, Ireland.

Clark Hill has been in expansion mode since 2013 beginning with a merger with Thorp Reed & Armstrong, adding 100 lawyers. The firm completed another significant combination in 2017 with Morris Polich & Purdy LLP adding nearly 100 lawyers and four offices in California and Nevada.

About Clark Hill

Clark Hill is a multidisciplinary international law firm that draws on its attorneys’ comprehensive industry and policy knowledge, deeply held shared values, and a global network of premier firms and advisors to provide effective legal solutions and client-service excellence. With more than 450 attorneys currently based in 17 offices across the United States and in Dublin, Ireland, the firm is a committed partner to a diverse range of businesses, public entities, and individuals. For more information about the firm and its services, visit clarkhill.com.

About Strasburger

A premier Texas law firm with a proud history spanning more than 75 years, Strasburger & Price, LLP meets the full range of legal needs for Texas-based, middle-market companies, as well as national and international clients. With experience in more than 30 practice areas, Strasburger attorneys provide legal advice to a variety of businesses – publicly and privately held companies from start-ups to those in the Fortune 500 – as well as individuals and governmental entities. Strasburger has Texas offices in Austin, Beaumont, Collin County (Frisco), Dallas, Houston and San Antonio, along with offices in, New York and Washington, D.C. and, as Strasburger & Price, S.C., in Mexico City.

LEOS Sponsors Memorial

Fri, 07 Apr 2017 05:10:13 GMT

LEOS Protection sponsors memorial bench

LEOS donated a memorial park bench which now stands at the former workplace of Cheryl Brown in Cleveland, Ohio. It is a place where her colleagues can rest and reflect on her life of service and compassion. Cheryl Brown took her own life after being removed from her government position. The circumstances surrounding the removal suggest that the agency could have acted differently. LEOS Protection fights for government employees every day, and we work to ensure that every member is treated like family.