By Deborah J. Hopkins, January 17, 2024
With the start of another year, it’s time for our annual update on what’s happening in the Federal employment law agencies most relevant to FELTG readers. Let’s get right to it.
Merit Systems Protection Board
Isn’t it wonderful to have a functioning Board? Nearly every morning, I check to see what new cases have been issued. More often than not there’s something new to read. According to recent case processing data, the Board issued 2,176 decisions between March 2022 (when the quorum was restored) and Dec. 31, 2023. Of those, over 2,000 were part of the original 3,793 in the case inventory (what we at FELTG have commonly referred to as the backlog) the Board inherited following 5-plus years without a quorum.
Despite losing its third Member Tristan Leavitt, whose term expired in February 2023, the Board has been able to function with only two Member positions filled.
As of Jan. 1, the Board had 1,788 cases in its inventory still to be adjudicated. We’ll be covering the most relevant new cases during our upcoming MSPB Law Week in April.
As 2024 gets under way, we await a Senate vote on former Special Counsel Henry Kerner, who President Biden nominated last fall to be a Member. The Senate committee has a vote scheduled for January 17 (today!), so we should know more very soon.
The Board has also published interesting reports on topics including sexual harassment and employee perceptions of prohibited personnel practices in the workplace.
Equal Employment Opportunity Commission
The EEOC’s focus this past year included the implementation of the long-awaited Pregnant Workers Fairness Act, which became law June 27, 2023. This law requires employers to accommodate the pregnancy- and childbirth-related physical and mental limitations of employees in much the same way agencies are required to accommodate disabilities. Regulations are due any day now, so it’s a good time to register for Everything You need to Know About the Pregnant Workers Fairness Act on Feb. 7.
Another major case with EEO impact was the Supreme Court’s Groff v. Dejoy, which raised the standard for an employer to show undue hardship when considering an employee’s religious accommodation request. We wrote about that case here.
And finally, the EEOC’s Office of Federal Operations (OFO) issued guidance on workplace accessibility. You should take a look to ensure your agency is in compliance.
Federal Labor Relations Authority
The FLRA, much like the MSPB, has a leadership panel, which consists of three political appointees. At the moment there are two Authority Members – Susan Tsui Grundmann and Colleen Duffy Kiko. Last September, Kiko was nominated for another term.
Last week, President Biden nominated Anne Wagner, currently the Associate Counsel at OSC, to the third seat. If her name is familiar to you, it may be because Wagner served as a Member of the MSPB for several years alongside Grundmann. Much like the MSPB, the Authority is able to operate with a two-person quorum, so Grundmann and Kiko are issuing decisions as normal.
The FLRA hasn’t had a confirmed General Counsel in longer than I can recall off the top of my head, but there have intermittently been civil servants who have filled the role in an acting capacity.
A couple of weeks ago, Biden nominated Suzanne Elizabeth Summerlin for the third seat. Now, we await Senate action. The senate committee plans to vote on Summerlin today as well.
The FLRA is experiencing major issues with its annual budget, which is actually lower than it was in 2004, according to GovExec. Its workforce has also shrunk despite the increase in labor management activity in recent years.
While there’s emphasis on resolving disputes without time-consuming litigation – check out Dan Gephart’s two-part interview with FLRA’s Collaboration and Alternative Dispute Resolution (CADRO) Director Michael Wolf here and here – we have to wonder how the agency can continue to serve its mission if its budget doesn’t match its workload.
U.S. Office of Special Counsel
Just a few days ago, President Biden sent Hampton Y. Dellinger’s nomination to the Senate, asking them to confirm Dellinger as the Special Counsel, and the Senate committee is scheduled to vote today.
Dellinger was nominated in October 2023. His background includes work at the U.S. Department of Justice as an assistant attorney general overseeing the Office of Legal Policy (OLP), and work for the state of North Carolina investigating and working on initiatives to reduce Medicaid fraud and fight political corruption.
According to its 2023 Performance Report, OSC received 4,611 new cases in FY 2023, which represents a 21 percent increase over the average of the previous three fiscal years, and achieved 418 “favorable actions” which is the second highest in the agency’s history. “What’s a favorable action?” you might ask. We’ll tell you when you come to MSPB Law Week.
Also interesting since it’s an election year (doesn’t it always feel like an election year?), OSC resolved 277 Hatch Act cases and obtained three disciplinary actions against Federal employees who violated the Hatch Act in FY 2023.
That about does it for now. Keep reading our newsletters and we’ll keep you posted as new events unfold. Happy New Year, FELTG readers! I hope it’s your best one yet. [email protected]