Kator, Parks, Weiser & Harris, PLLC

A Washington, D.C. based law firm with a civil practice in employment law

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Same-sex spousal benefits made available to federal employees

The Supreme Court today ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  Kator, Parks & Weiser, PLLC is proud to be part of the legal effort that helped overturn DOMA.  KPW attorneys Cathy Harris and Andrea Goplerud have assisted GLAD (Gay & Lesbian Advocates & Defenders) for several years in the federal-sector employment law aspects at the MSPB and the U.S. Court of Appeals for the Federal Circuit in DOMA litigation.  The Court’s decision results in same-sex federal employees being eligible for spousal benefits that had been denied under DOMA. For information about how you can secure these and other benefits now available, please visit http://www.glad.org/uploads/docs/publications/post-doma-fact-sheets/post-doma-federal-employees-spouses.pdf.  If you have questions, or if you feel that you have faced any discrimination or harassment due to your applications for same-sex partner benefits, you can contact KPW for a free consultation to discussion your legal options.

EEOC Finds Class-Wide Discrimination

A June 2013 order from the EEOC found that the Drug Enforcement Administration engaged in class-wide discrimination against female DEA Special Agents. The EEOC ordered that separate hearings be conducted to determine the extent of monetary damages due to class members, damages that are expected to be in the tens of millions of dollars.  KPW has proudly represented the class of female DEA Special Agents for decades. To learn more about the case, click here.

IRS Employees Have Rights

Every so often, scandals at federal agencies whip through the news cycle. Frequently, long time federal employees can be improperly targeted in the subsequent attempts to correct perceived problems and clean house.  And, to be sure, there may be instances where disciplinary action is appropriate. But due process rights must be followed and any penalty imposed should be fair and equitable. If you are a federal employee facing a proposed disciplinary action, or think you might be facing a proposed disciplinary action in the near future, please contact KPW at (202) 898-4800 for a free initial consultation.  Our Washington, DC based firm has been representing federal employees for more than 20 years in proposed disciplinary actions and in appeals of imposed disciplinary actions to the U.S. Merit Systems Protection Board. Jessica Parks serves as the Chair of KPW’s MSPB practice section.  Ms. Parks served as an Administrative Judge with the MSPB’s Atlanta Regional Office.  President George H.W. Bush appointed Ms. Parks to serve as one of the three Board Members of the MSPB, and her appointment was confirmed by the U.S. Senate.  President Bill Clinton elevated Ms. Parks to the position of Vice Chair of the MSPB.  While at the MSPB, Ms. Parks decided hundreds of cases, establishing important principles related to protecting employees’ due process rights, guaranteeing fair consideration of adverse actions, and enforcing reasonable and just levels of penalties. Read more about our firm’s MSPB practice here.

KPW Attorneys Named DC SuperLawyers

The 2013 Roster of DC Area SuperLawyers includes KPW Attorneys Michael Kator and Cathy Harris. KPW Attorney Jeremy Wright was also named as a DC Area SuperLawyer Rising Star. KPW congratulates its Members on their recognition as 2013 DC SuperLawyers.

KPW Fights DOMA

Kator, Parks & Weiser, PLLC is proud to be part of the legal effort to overturn the Defense of Marriage Act (DOMA).  KPW attorneys Cathy Harris and Andrea Goplerud have assisted GLAD (Gay & Lesbian Advocates & Defenders) for several years in the federal-sector employment law aspects at the MSPB and the United States Court of Appeals for the Federal Circuit associated with GLAD’s landmark case, Gill v. OPMGill is being held pending the Supreme Court’s ruling in Windsor. For more information about the case, and DOMA, please visit http://www.glad.org/doma.

KPW Talks Furlough Legal Rights with Washington Post

KPW Co-Manager Jessica Parks was contacted by The Washington Post to provide expert perspective on possible federal employee furloughs.  In an article published February 27, 2013, The Washington Post quoted Ms. Parks regarding possible legal issues that could arise if federal employees are furloughed due to sequestration.  In the article, “Sequester a nightmare for appeals agency,” The Washington Post wrote, “In terms of precedent, furlough cases are ‘largely unexplored territory,’ said Jessica Parks, a former MSPB vice chairman who is now with Kator, Parks & Weiser. She said that many earlier cases involved special rules applying to one small group of employees, administrative law judges.”

Ms. Parks discussed possible legal challenges that may be available to federal employees subject to a furlough order: “‘It comes down to: Are there going to be fairness issues? And that depends on how each agency handles it,’ Parks said. …. ‘While that may sound simple, we see in our practice that agencies often don’t follow procedures correctly,’ Parks said. ‘Sometimes they make mistakes. If that happened in a particular case, it could result in the reversal of an action and then back pay and other relief.'”

If you have questions about your possible legal rights related to a furlough order, contact KPW now (at 202-898-4800) to discuss your legal options.

Federal Times reports that KPW case could result in millions of dollars to class members

The Federal Times reports that a December 2012 order issued by the EEOC could result in the Social Security Administration owing “millions of dollars in back pay to black male employees at its Baltimore headquarters.”  The EEOC order was issued after the class alleged that SSA violated the terms of a settlement agreement reached in a class action filed in 1998. KPW attorneys have proudly represented the class of African American male employees at SSA Headquarters for decades.

To learn more about the SSA class action, click here.
To see the Federal Times report, click here.

Pumping Breast Milk at Work in D.C. is Protected by Law

Are you a breastfeeding mother who works in the District of Columbia? Does your employer provide you with the break time that you need to pump milk for your baby?  Does your employer provide you with a clean, private space– other than a toilet stall or a bathroom– for you to pump breast milk?  If not, your employer may be in violation of the law.

In the District of Columbia, there is a law that protects the rights of breastfeeding mothers.  In almost all circumstances, employers must allow women reasonable break time in which to express breast milk in a private, sanitary area.  In 2007, the District of Columbia passed a law, entitled the “Child’s Right to Nurse Human Rights Amendment Act,” which provides that an employer shall provide reasonable daily unpaid break periods to an employee who wishes to express breast milk for her child to maintain milk supply and comfort.  In addition, the law provides that an employer shall make reasonable efforts to provide a clean room or other location in close proximity to the work area where an employee can express her breast milk in privacy and security.  Employers are exempted only if it would cause an “undue hardship” to the employer. An undue hardship is one that “requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources, and the nature and structure of its operation.”  Employers who violate the law commit an unlawful discriminatory practice under the D.C. Human Rights Law.

The law firm of Kator, Parks & Weiser, P.L.L.C. strenuously advocated for the passage of this law in 2007, and has advised breastfeeding mothers in D.C. about their rights to pump milk at work.  If you believe your employer may be in violation of the law, please contact Kator, Parks & Weiser today for a free consultation.

Due Process and Adverse Actions Taken Against Federal Employees

When a federal agency takes an adverse action against a non-probationary federal employee, it must follow basic due process requirements.  The ultimate adverse action is subject to being reversed by the Merit Systems Protection Board (MSPB) if due process is not followed.  The basic requirements are that non-probationary employees must be provided at least 30 days’ advance written notice of the adverse action as a proposed adverse action unless the “crime provision” exception applies.  Adverse actions are generally defined as a suspension for more than 14 days, a demotion or a removal from federal service.

When such an adverse action is proposed, the agency must state the specific reasons for the adverse action in the notice, and the employee must be given an opportunity to review any and all materials relied on in proposing the action.  During the advance notice period, the employee must be given an opportunity to respond, both orally and in writing to the proposal notice, and present additional information, including affidavits.

The agency’s deciding official must consider only the reasons stated in the proposal notice, and the employee’s reply.  If the agency considers any additional information in reaching the adverse action decision, there is a likely due process violation and the action may be reversed in an appeal filed with the MSPB.  Additional new information that relates either to the charged misconduct or to aggravating factors supporting an enhanced penalty could be determined by the MSPB to be constitutionally impermissible if the employee did not have a chance to respond to that information.

If the MSPB concludes that due process was not followed, the Board can reverse the action, and the employee would be entitled to a new and constitutionally correct proceeding.

EEOC Modifies Regulations For Discrimination Cases Filed By Federal Employees

After issuing a 2009 notice of proposed rulemaking and receiving comments, the EEOC issued changes to federal regulations on July 25, 2012.  These modifications to the federal regulations impact the consideration of discrimination complaints filed by federal employees and applicants.  Significant modifications to 29 C.F.R. Part 1614 are discussed below.

Compliance

Federal executive agencies are required to identify and eliminate discriminatory practices and policies.  Under the recent modifications of 29 C.F.R. Part 1614, the EEOC will review agency programs for compliance with Civil Rights laws and the EEOC’s Management Directives.  If the EEOC determines that an agency’s EEO program is not in compliance, the EEOC will give the agency a reasonable opportunity to cure defects that have been found, provide a reasonable justification for its non-compliance, or establish that its program is in compliance.  If an agency fails to satisfy one of these criteria, a notice of non-compliance will be issued.  Under the rule, the EEOC Chair has discretion to determine whether a notice of non-compliance should be made public.

Pilot Projects

Under the new rule, the EEOC may allow agencies to conduct pilot programs for procedural complaint processing procedures that vary from the requirements of 29 C.F.R. Part 1614.  An approved pilot project can run for two years, and may be extended for an additional year if good cause is shown.

Notice of Rights

Under the EEOC regulations, an agency is required to complete its investigation and notify a complainant that he has the right to request a hearing (or an immediate final decision) within 180 days from the filing of the complaint.  The modified regulations now require that if the agency does not complete its investigation within 180 days, the agency must, within 180 days, issue a written notice to the complainant informing him that the agency has been unable to complete its investigation within the required time limits, and the agency must estimate and provide to complainant a date by which its investigation will be completed.  The notice must also inform the complainant that if he does not want to wait until the agency complete its investigation, he may instead request a hearing or file a civil action in an appropriate United States District Court.  The EEOC, in the explanatory preamble, makes clear that a full range of sanctions are available should an agency not complete its investigation within the required time period, and that these sanctions may be warranted even if the agency issues the required notice under the new final rule.

Retaliation

Under the new rule, the EEOC clarified that federal employees alleging discrimination in proposals to take personnel actions or other preliminary steps to taking personnel actions should be dismissed unless the complaint alleges that the proposal or preliminary step is retaliatory.  That is, challenges to proposals or preliminary steps are actionable if the federal employee alleges that the proposal or preliminary step was issued: (1) because the complainant had engaged in prior EEO activity; (2) because the complainant had opposed a practice which he believed violated one of the federal EEO laws; or (3) to dissuade the complainant, or a reasonable person in the complainant’s circumstances, from engaging in protected EEO activity.

Class Complaints

The EEOC’s final rules makes two significant changes to the class complaint process.  First, the final rule seeks to shorten the class certification process.  An appeal of the acceptance or dismissal of a class complaint will be processed by the EEOC within 90 days.  Second, the final rule makes an administrative judge’s decision on the merits of a class complaint a final decision, which the agency can fully implement or appeal in its final action.  If the agency does not fully implement the administrative judge’s decision, the agency may appeal the parts of the decision that it wishes to contest.

EEOC Process: Electronic Filing

Agencies are now required to submit appeals and compliant files to EEOC in a digital format.  Complainants are encouraged to submit their documentation electronically.

MD-110

In addition to the explicit changes to 29 C.F.R. Part 1614, the EEOC indicated that it will revise Management Directive 110 to provide additional guidance regarding the changes made by the final rule.  The EEOC will continue to review the federal sector EEO process in order to improve its quality and efficiency.

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