EEOC Class Action Pending For Postal Employees Placed Under USPS National Reassessment Process
note: I found this little nugget stuck in the middle of another EEOC case.
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973.
The AJ certification decision recited evidence that the goal of NRP was to assign work to employees who had an approved compensable injury as determined by the Department of Labor. According to the decision, Phase 1 of NRP consisted largely of reviewing the files and medical records of all these employees; where needed requesting updated medical documentation from the employee; and verifying that current work actually being performed matched the current job offer. According to the decision, Phase 2 consisted largely of canvassing facilities to identify work necessary for operations and functions, attempting to match the employee with the necessary work, and if none is found, notifying the employee that no work was available.
The Postal Service filed an appeal from the certification decision, which is pending as of February 13, 2009.
More details will be posted as they become available.
List of USPS Districts Currently Under Phase 2 of the National Reassessment Process
Postal FMLA Coordinators Requiring Employees To Release Medical Info to USPS Law Department
From Michael J Hora, President, National Postal Mail Handlers Union (NPMHU) Local #321
FMLA Coordinators Soliciting Release of Medical Information to USPS Law Dept.
The Postal Service is soliciting medical releases for those employees that are required to partake in the 2nd and 3rd opinion process. In doing so, the FMLA Coordinators are requiring employees to release the “specified information” to the USPS Law Department. Specifically, the USPS is requesting access to:
Any and all records regarding treatment, including but not limited to, all current and past medical treatment, aliments and/or conditions (sic);
Other: Stress, Psychological and/or Medical Disorders, Aliments, Conditions (sic) to include a copy of complete chart, progress notes & interview notes, discharge summaries, operative reports, x-ray & all imagery, laboratory tests, pathology tissue, and all diagnostic studies whether in electronic data or other format.
The Local Union has filed a complaint with the Department of Labor, and we have asked Senator Udall to intervene. We are also addressing the issue at the National level.
The request seems highly improper. What legal purpose does the Law Department have with sensitive, private and personal medical information? Is the Law Department going to review x-rays and pathology tissue?
The USPS letter goes on to assert that the information sought is the “minimum necessary” to accomplish the intended purpose of the request. There is nothing minimal about the information being sought. It is the Postal Service’s customary and routine practice to request everything.
Hopefully we will have this resolved quickly. Until then, we need to have every mail handler that is pushed to a 2nd and/or 3rd opinion (and required to sign the referenced medical release) to file a complaint with the DOL. The Union can assist you with this. It is nothing more then a simple letter written to:
Denver Colorado District Office Martin Barrow, District Director
US Department of Labor ESA Wage & Hour Division 1999 Broadway, Suite 2445 Denver, CO 80202-5712
Those that are affected and do file complaints should remind the DOL that the USPS will likely terminate their FMLA (for refusing to sign and return the medical release) asserting non-cooperative with the 2nd/3rd opinion process. They should ask for appropriate extensions until their complaint is addressed. Additional information will be posted as this situation develops.
See documents accompanying FMLA request (PDF)
Former New Jersey APWU President Pleads Guilty to Tax Evasion
The U.S. Department of Labor’s Office of Labor-Management Standards (OLMS) announced its criminal enforcement data for December 2008
Guilty Pleas
Former APWU Local 190 President Pleads Guilty to Tax Evasion
On Dec. 5, in the U.S. District Court for the District of New Jersey, Gary Weightman, former president of the American Postal Workers Union (APWU) Local 190 (located in Clifton, N.J.), pleaded guilty to two counts of tax evasion. Weightman originally was charged with conspiracy to embezzle union funds in the amount of approximately $400,000. The plea follows an investigation by the OLMS New York District Office.
Former APWU Local 1091 President Charged with Grand Larceny
On Dec. 17, in the Criminal Court of White Plains, N.Y., Thomas Daniels, former president of APWU 1091 (located in White Plains, N.Y.), was charged with one count of grand larceny in the third degree for the theft of approximately $4,250 in union funds. The charge follows a joint investigation by OLMS New York District Office and the U.S. Postal Service Office of the Inspector General.
Enforcement Actions and Civil Complaints
NPMHU Local 308 Enters into Voluntary Compliance Agreement with OLMS
On Dec. 17, OLMS entered into a voluntary compliance agreement with the National Postal Mail Handlers Union (NPMHU) Local 308 (located in Philadelphia, Pa.) concerning the election of officers conducted on Feb. 16, 2008. The union agreed to conduct new nominations and a new election, under OLMS supervision, for the offices of branch president-Philadelphia Bulk Mail Center and Pennsylvania state executive board member. The OLMS investigation of the challenged election disclosed that the union improperly applied a candidate eligibility requirement, which denied a member in good standing the right to be a candidate. The agreement follows an investigation by the OLMS Philadelphia District Office.
Source: Dept. of Labor
New Family and Medical Leave Act Poster
From PostalReporter.com reader
A revised Family and Medical Leave Act (FMLA) poster, reflecting the recently published final rule, is now available for viewing and downloading. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions. Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).
The Department has also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381). In addition, the Department has added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)
The poster and forms become effective on January 16, 2009. Additional compliance assistance materials are also available on FMLA Final Rule Web site at http://www.dol.gov/esa/whd/fmla/finalrule.htm.
Two Postal Union Officers Plead Guilty To Embezzlement
The U.S. Department of Labor’s Office of Labor-Management Standards (OLMS) today announced its criminal enforcement data for November 2008
Guilty Pleas
Former Letter Carriers Branch 272 Secretary-Treasurer Pleads Guilty to Embezzling $45,000
On Nov. 6, in the U.S. District Court for the District of New Jersey, Kevin Sherlock, former secretary-treasurer of the National Association of Letter Carriers Branch 272 (located in Newton, N.J.), pleaded guilty to embezzling union funds in the amount of $45,000. The plea follows a joint investigation by the OLMS New York District Office and the U.S. Postal Service Office of the Inspection General.
Former APWU Officer Pleads Guilty to Embezzling More Than $18,000
On Nov. 17, in the U.S. District Court for the Southern District of Ohio, Tina Curtis, former secretary-treasurer of American Postal Workers Union (APWU) Local 232 (located in Columbus, Ohio), pleaded guilty to one count of embezzling union funds in the amount of $18,283. The plea follows an investigation by the OLMS Cleveland District Office.
SOURCE U.S. Department of Labor
APWU to Re-Run Two National Business Agent Races
APWU News
The APWU will conduct new elections for two National Business Agent (NBA) positions to resolve an investigation by the Department of Labor, union President William Burrus has announced. The two elections to be re-run are the Clerk NBA “A” race in the Dallas Region and the Motor Vehicle Services NBA election in the Southwest Sub-Region. The races were initially contested in 2007, as part of the election of more than 80 national officers.
The new election in the MVS race will be conducted prior to Oct. 5, 2008. New nominations will be held for the clerk position, and balloting will take place prior to Nov. 30. Union members will be notified when a schedule has been finalized.
The elections will be conducted under the supervision of the Department of Labor, in accordance with Title IV of the Labor-Management Reporting and Disclosure Act. President Burrus has appointed Tony Turner to serve as the APWU Election Committee chairperson.
The Department of Labor sought a new election in the Clerk NBA race because of concerns about local endorsements in that contest. The losing candidate is no longer eligible to run for office, so new nominations will be held.
The new election in the Motor Vehicle race is necessary because some eligible voters initially received the wrong ballots. Although corrected ballots were mailed to all affected voters, some did not cast new ballots.
“We will do everything we can to protect the integrity of our election process,” Burrus said. “The direct election of officers is a hallmark of our union’s democracy, and we will take all necessary steps to ensure that our elections are conducted properly.”
Proposed FMLA Rule Changes Would Be Major Defeat For Workers
Editorial By Postal Worker Dan Sullivan
The U.S. Department of Labor (DOL) is proposing revised regulations governing the Family and Medical Leave Act which would give employers formidable new weapons to use against the very workers the law was designed to protect.
The new rules, if adopted, will require employees and doctors to provide more information to obtain FMLA leave and increase costs for employees while broadening the rights of employers to gather personal medical information and deny employees coverage under the law.
The Department of Labor conservatively estimates the proposed changes will save employers at least $45 million a year and cost employees and health insurers $11.3 million yearly, mainly in costs to obtain medical information from health care providers.
One of numerous proposed changes harmful to workers involves substitution of paid leave for unpaid FMLA leave. Read more
APWU: Proposed FMLA Regulations Threaten Medical Privacy, Other Protections
Shortly after agreeing to expand leave for military families, the Bush administration proposed new regulations that would weaken employees’ medical privacy protections and make it more difficult for workers to use leave under the Family and Medical Leave Act (FMLA). Regulations proposed by the Department of Labor on Feb. 11, 2008, have caused concern among unions.
- Current regulations prohibit employers from making direct contact with an employee’s physician. The proposed rules would create exceptions to this prohibition.
- Eligible employees would be required to re-certify lifelong or chronic conditions at least twice a year, regardless of the length of the certification issued by a healthcare provider. (Employees would have to bear the costs of the additional trips to the doctor.) Under current regulations, such certifications last up to a year.
- Current regulation prohibit the disclosure of a “diagnosis or prognosis” on any form. The proposed rule would allow employers to request but not require disclosure.
- While the proposed regulations would allow eligible employees to seek damages against employers who fail to provide them proper notice of their rights under the FMLA, the burden of proof in such cases would be quite high and employees would have to show actual damages suffered.
- Current regulations stipulate that a health problem can qualify as a serious condition when an absence is followed by two visits with a healthcare provider. The proposed regulations would restrict FMLA eligibility by requiring that follow-up treatment take place within 30 days of the start of a medical absence.
- Current law requires employers to provide notice to employees within two business days. The proposed rule expands the period to five business days.
The APWU and other unions are currently reviewing the proposed regulations and plan to file objections within the 60-day public comment period before the new regulations can take effect. The Labor Department has until the end of 2008 to publish its final regulations.
Bush Administration Seeking Changes To FMLA Regulations
According to the Associated Press:
The Bush administration is proposing the first changes to regulations in the Family Medical Leave Act in more than a decade.
The act allows eligible workers to have up to 12 weeks of unpaid leave in a year for such things as caring for a newborn or a sick family member, or to address a serious health condition.
The Labor Department says it has sent the proposed changes to the White House, but won’t say what the changes are.
Advocates for the act say they’re worried that the administration will try to cut back or weaken protections of the law. They say the government should be working to expand it.
But the Labor Department says people already eligible under the act will remain eligible, and that changes will be aimed at stopping people from abusing the system.
The changes will be made public once the White House signs off on them. The Labor Department hopes the final regulations will come by the end of the year.
The New York Times reported:
Labor Department officials said on Thursday that they had proposed new regulations that address some corporate complaints that workers are abusing the Family and Medical Leave Act. Under the proposals, workers would generally have to call in to request a leave before taking it; currently, employees can take off for two days before requesting a leave.She said the proposed regulations would allow companies to require doctors to recertify annually that a worker has a serious health condition. Under current rules, doctors can provide a multiyear certification that a worker has a serious condition.
Although a Labor Department official announced the move through interviews with the Associated Press and The New York Times, the department has not provided any details about its recommendations.
Workforce Management reports:
The White House budget office has up to 90 days to review the proposal, but observers estimate that it likely will be published by mid-February in the Federal Register. The public would then have 60 days to comment. Then the Labor Department would issue a final regulation.
DOL Complaint Seeks To Ban USPS Mail Hauling Contractor
U.S. Labor Department seeks nearly $1.4 million in back wages, plus debarment, of California mail hauling company
Press Release – SAN FRANCISCO – The U.S. Department of Labor today announced the filing of an administrative complaint against Woodland Hills, Calif.-based Alan Berman Trucking to recover $1,369,870 in back wages for 80 current and former employees. The complaint also seeks debarment of the company and its principals, which would prohibit them from receiving government contracts for a period of three years.
“Federal contractors have a responsibility to pay workers in accordance with federal law,” said U.S. Secretary of Labor Elaine L. Chao.
Alan Berman Trucking had some $10 million in mail hauling contracts with the U.S. Postal Service subject to the Service Contract Act (SCA) during the time period investigated, providing services from postal facilities in the greater Los Angeles and San Francisco Bay areas.
Investigators with the Labor Department’s Wage and Hour Division found violations on eight contracts where the company treated the drivers as independent contractors, requiring that they use their own trucks and assume all costs. The company paid employees either by the mile or by the trip, failed to record hours worked and failed to pay any fringe benefits as required by law. In addition, the company made illegal deductions for fuel from the drivers’ pay and failed to reimburse the cost of the driver-owned trucks’ maintenance and wear and tear. As a result, the drivers’ wages fell below the prevailing wage rate required by the SCA.
The back wage compensation sought covers work performed between June 2004 and February 2007. This investigation is the department’s ninth of the company, and violations of federal labor laws were found during seven prior investigations. This suit names the company, as well as president Alan Berman of Woodland Hills, Calif., and vice president Osvaldo “Ozzie”Tarditti of Northridge, Calif., as defendants.
Under the SCA, contractors and subcontractors on federal service contracts exceeding $2,500 must pay their service workers no less than the wages and fringe benefits prevailing in the locality. The Labor Department issues wage determinations that provide the required SCA wage rate and fringe benefits for each service occupation. These determinations are incorporated into covered federal contracts.
For further information about the SCA and other laws administered by the Wage and Hour Division, call the department’s toll-free helpline at (866) 4US-WAGE (487-9243), visit the division’s Web site at http://www.dol.gov/esa/whd/ or contact the division’s Los Angeles District Office at (213) 894-6375.
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Chao v. Alan Berman Trucking et al
Case Number: SCA-2007SCA00010