Editorial: Postal Service Keeps Employees Disciplinary Records Forever
Stamps are not the only item USPS considers “Forever”
The following is an editorial by Don Cheney:
USPS Labor Relations keeps a reference copy of an employee’s disciplinary action for the employee’s entire career. Don’t believe it? THEY DO. See the USPS Privacy Act Notice of June 17, 2011 at http://federalregister.gov/a/2011-15038.
Labor Relation’s reference copies are never purged regardless of the disposition of the discipline. Keeping disciplinary records forever is legal under the collective bargaining agreements as long as they are “not considered” in subsequent disciplinary actions. The APWU challenged this nefarious practice and lost.
Postal employees need to keep the disposition of discipline they have received forever, because Labor Relations is not obligated to do so and often doesn’t. I have seen ancient disciplinary actions that were supposedly reduced or expunged surface more than a decade later. Typically, it is to refute a claim made by the employee like, “I’ve never been disciplined for such and such.”
USPS 100.000
System Name: General Personnel Records.
CATEGORIES OF RECORDS IN THE SYSTEM:
4. REFERENCE COPIES OF ALL DISCIPLINE OR ADVERSE ACTIONS: Letters of warning; notices of removal, suspension and/or reduction in grade or pay; letters of decisions; and documents relating to these actions. These are used only to refute inaccurate statements by witnesses before a judicial or administrative body. They may not be maintained in the employee’s OPF or eOPF but must be maintained in a separate file by Labor Relations.
http://www.federalregister.gov/a/2011-15038/p-33
RETENTION AND DISPOSAL:
3. REFERENCE COPIES OF DISCIPLINE OR ADVERSE ACTIONS. These records are kept for historical purposes and are not to be used for decisions about the employee. The retention of these records may not exceed 10 years beyond the employee’s separation date. The records are maintained longer if the employee is rehired during the 10-year period. They may not be maintained in the employee’s OPF or eOPF, but must be maintained in a separate file by Labor Relations.
http://www.federalregister.gov/a/2011-15038/p-45
In the days of paper records and locked filing cabinets, Labor Relations kept disciplinary records for only seven years. Paper files were hard to search. Today, computers have memories like elephants. Do you agree with this statement? “The Postal Service does not expect this amended notice to have any adverse effect on individual privacy rights.”
Don Cheney
Auburn WA
USPS Drops Policy On Direct Marketing Co-Branded Products and Services to Postal Employees?
Filed under: postal, postal employees, postal news, privacy, usps
The policy covered all Postal Service-sponsored direct mail marketing pieces that communicate a co-branded offer by direct mail using the employee mailing list and via other internal employee communications vehicles. “The employee mailing list is derived from the Postal Service employee master file, which is the complete home address database of all career and non-career, full and part-time employees. The direct mail piece must be co-branded. Mailings may only use the Postal Service brand identity or Postal Service brand, or be co-branded, as expressly provided for in the agreement between the Postal Service and the business firm, and as approved by the manager of Brand Equity and Design.”
USPS recently announced:
“Effective immediately, Management Instruction AS-333-2004-7, Direct Marketing and Co-Branded Products and Services to Employees, is obsolete.”
This “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7″ was at the center of a lawsuit filed in 2007 by a 10-year employee in Seattle, Washington. Over 100 Postal Employees had “opted-in” to join the complaint by claiming their rights under the Privacy Act were violated. Many of the Postal Employees were unaware the Management Instruction existed or Postal Employees could “opt-out” of the initiative. The class action lawsuit was dismissed by a District Court judge in late 2009.
The lawsuit accused USPS of selling the personal information of its workers to credit card and other companies without consent:
Postal Employees claimed that USPS violated the Privacy Act by selling its employee master file, containing personal, private employee information, including “the complete home address database of all career and non-career, full and part-time employees.
According to lawsuit, the Postal Service’s disclosure of information is evidenced by the Postal Service’s “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7,” a postal regulation that allows private corporations to submit competitive bids for co-branding and other types of marketing agreements using the employee master file. Postal Employees complained that all of this is done without the Postal Service employee’s approval, consent, or knowledge. They also argued that the Postal Service received more than $8.5 million in profit by selling its employee master file.
The Postal Service admitted that it engaged in direct marketing of co-branded products and services to its employees but their actions does not violate the Privacy Act. The Postal Service argued in part the lawsuit should be dismissed because (1) it is an improper challenge to a Postal Service regulation, i.e., the “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7,” ; (2) it arises out of Postal Employees’ employment relationship with the Postal Service; and (3) there is no clearly defined independent cause of action for unjust enrichment under federal common law.
The court finds Plaintiffs’ attempt to circumvent the prohibition against challenging a Postal Service regulation by contending that they are not challenging the regulation itself, but the profits received from enacting the regulation, to amount to a distinction without a difference. The core of Plaintiffs’ claim against the Postal Services is its enactment and implementation of the Management Instruction. Accordingly, the court concludes that Plaintiffs’ claim of unjust enrichment is a direct challenge to the Postal Service’s Management Instruction – the regulation granting it authority to enter into the co-branding agreements – and therefore there is no waiver of the Postal Service’s sovereign immunity for this remaining claim. Accordingly, the court concludes that it does not have jurisdiction to adjudicate Plaintiffs’ unjust enrichment claim based on a Postal Service regulation.
For the reasons stated GRANTS the Postal Service’s motion to dismiss (Dkt. # 55). The court DISMISSES Plaintiffs’ complaint against the Postal Service
Postal Worker Loses Lawsuit Claiming USPS Violated Privacy Act And Fraud On the Court
Filed under: legal cases, postal, postal news, privacy, usps
The following is PostalReporter’s summary of several cases related to the same issue:
Darrell Coburn sued the United States Postal Service claiming that the Privacy Act, 5 U.S.C. § 552a, was violated when records from the file on his administrative complaint of discrimination were disclosed internally to several management employees. USPS was seeking evidence of a management employee representing a craft employee which is against postal policy. After a bench trial the district court found that the Postal Service did not make any unauthorized disclosure and entered judgment against Coburn. Coburn appealed to the Court of Appeals which upheld the District Court’s decision. Coburn filed again arguing that the Postal Service committed fraud by submitting an alleged “bogus” document to the court. The court ruled that Coburn was untimely and therefore the Court of Appeals decision stands.
This legal saga started when Darrell Coburn a 19-year Forest Park, IL letter carrier was placed on Emergency Off-Duty status on January 27, 2004.
On February 9, 2004, Coburn was issued a Letter Of Warning for conduct unbecoming of a postal employee which occurred on January 27, 2004.
On February 11, 2004 Coburn filed National Labor Charges against the Postal Service and Former Forest Park Postmaster Migna Sanchez for unfair labor practices and whistle-blowing activity..
On February 12, 2004, Coburn was issued a 14-day suspension for “Failure to Properly Secure A Postal Vehicle.”
On February 19, 2004, Coburn was told that on February 23, 2004, he was being sent for letter carrier re-training at another Post Office.
In 2005, Coburn filed an administrative complaint alleging employment discrimination. Coburn was told that he could select another employee to represent him during the administrative process. However, Postal Service policy precludes management employees from representing craft employees like Coburn, a letter carrier. In spite of the policy, Coburn enlisted his friend Cecil Watson, a management employee, who knew about the policy from his supervisor. When the supervisor later heard that Watson had served a summons on the United States Attorney in a lawsuit filed by Coburn against the Postal Service, he asked a postal official to investigate whether Watson was violating the policy against representing craft employees.
The postal official contacted the personnel employee with custody over the file from Coburn’s administrative complaint, who turned the file over to the postal official. From that file the postal official culled six documents referring to Watson as Coburn’s personal representative.
The postal official turned those documents over to Watson’s supervisor, who cited them in a proposal to his supervisor that Watson be fired. It is these disclosures that Coburn alleged USPS violated the Privacy Act.
In September 2008, after a bench trial on Coburn’s claims, the district court granted judgment for the Postal Service. It found that the employees lawfully viewed Coburn’s records under an exception to the Privacy Act that permits access when employees have a “need for the record[s] in the performance of their duties.”
The Privacy Act generally precludes an agency from disclosing records pertaining to an individual who has not consented in writing to the disclosure. 5 U.S.C. § 552a(b). But several categories of disclosures are explicitly authorized in the statute, including disclosures “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” The district court found that the disclosures here fit this exception.
Coburn countered that his records were disclosed to persons who did not maintain them, and thus the disclosures fell outside the “need to know” exception. But the court said that Coburn misread subsection (b)(I). It is enough that the persons to whom disclosure is made are employees of the agency that maintains the records and that those employees have a need for access; disclosure under this subsection is not limited to the employees responsible for maintaining the records.
Coburn also argued that the Postal Service employees who obtained his records did not need to access those records in the course of their duties. To show this, he cites a vacancy announcement for the position held by the postal official, who obtained the file from the personnel employee and passed along six documents to Watson’s supervisor after first clearing that action with agency counsel. Coburn correctly notes that the vacancy announcement does not mention as a job duty investigating allegations of employment discrimination. But a vacancy announcement would not be comprehensive, and, regardless, the employees to whom the records were disclosed testified that their duties did include investigating alleged misconduct by management employees. The district court believed them, and our job on appeal is not to reweigh the credibility of trial witnesses. Coburn does not otherwise fault the scope or manner of the disclosures, so our analysis may end here.
In February 2010, nearly 17 months after the district court entered its judgment, Coburn filed a motion to vacate in light of new evidence suggesting that the Postal Service and its counsel engaged in fraud on the court. The Postal Service committed fraud, Coburn argued, by using a misleading memo at his bench trial to justify accessing his file. The memo explains that Postal-Service policy bars management employees (such as Watson) from representing craft workers (such as Coburn) in administrative proceedings against the Postal Service. But such memos, Coburn contended, are informational only and should not be treated as official policy of the Postal Service, and in support he pointed to a 1989 employee manual that he characterizes as newly discovered evidence. He also cited a 1996 employee handbook listing five conflicts of interest for employee representation, none of which stated that management employees could not represent craft employees. Therefore, he concluded, Watson did not engage in wrongdoing by assisting him with his complaint, and Postal-Service employees had no need to access his administrative file. The district court denied Coburn’s motion, determining that the one-year statute of limitations under Rule 60(b)(3) had passed and that Coburn did not allege the egregious fraud on the court necessary to succeed under Rule 60(d)(3).
Coburn does not challenge the district court’s finding that his motion under Rule 60(b)(3) was time-barred. Such motions must be brought within one year of the judgment the party seeks to vacate, and Coburn was untimely in waiting almost 17 months after the judgment to file his motion.
Coburn argues that the district court erred in finding that the Postal Service did not defraud the court because, he contends, it overlooked the Postal Service’s “bogus document”—the memo regarding Postal-Service policy. Fraud on the court, which is not subject to the one-year statute of limitations, may include inserting fraudulent documents into the record, but Coburn has not pointed to any evidence to suggest that the memo itself—or the way the Postal Service used it at trial—was fraudulent. Nor has he explained how the mere existence of the 1989 manual undermines the memo’s authenticity.
Coburn also asserts for the first time on appeal that counsel for the Postal Service engaged in fraud by allowing witnesses to perjure themselves through testimony about the memo. But he waived that argument when he did not present it to the district court. And even if he had not, his argument would still fail because here too he does not point to anything in the record to support his claim. Because the purported fraud was not “conduct that might be thought to corrupt the judicial process itself,” the district court properly denied the motion.
We add, however, that a plaintiff can win a Privacy Act suit for damages only if he demonstrates that the violation was intentional or willful. See 5 U.S.C. 552a(g)(4); Jacobs v. Nat’l Drug Intelligence Ctr., 423 F.3d 512, 522 (10th Cir. 2005); Moskiewicz v. U.S. Dep’t of Agric., 791 F.2d 561, 564 (7th Cir. 1986). Even if the disclosures had been unauthorized, the employees who were involved reasonably believed that they were allowed access to Coburn’s file as necessary to investigate possible misconduct by Watson. The district court,in its findings of fact, made clear that it believed there was no intent to violate the Privacy Act, and that finding is not clearly erroneous. See Remapp Int’l Corp. v. Comfort Keyboard Co.,No. 08 3282, 2009 WL 750222, at *3 (7th Cir. Mar. 24, 2009). Accordingly, even if there had been a technical violation, Coburn still would not recover.
USPS: Privacy Act May Apply When Collecting Personal Info From Customers Or Employees
A brief update on an article posted several months ago regarding the omission of USPS’s Privacy Act on an online survey.
Some USPS managers are requiring all window clerks to answer an online survey regardless of how many hours they work the window. I clicked on the link, https://USPSLSSA.questionpro.com, and didn’t see a valid ‘Privacy Act Notice.’ Specifically, content items b, c, d, and e listed in section 3-2.2.b.1 for a ‘Privacy Act Notice’ are missing. Since the retail clerks have to enter their POS ID, they are personally identifiable and should receive a ‘Privacy Act Notice.’ Did your office approve this online survey?
Don Cheney
Today USPS posted the following message:
NOTICE REQUIRED. If personal information is collected from an employee or customer on a form or survey, the Privacy Act may apply. When personal information maintained in a Privacy Act system of records is collected, a privacy notice must be provided. The notice — or “Privacy Act Statement” — is basic information about why data is being collected, the laws that allow USPS to collect it, and the disclosures that may be made using the information. The Privacy Office is responsible for reviewing and approving all Privacy Act Statements.
Update: USPS Retail Survey Lacks Privacy Act Safeguards?
Update regarding USPS Retail Survey Lacks Privacy Act Safeguards?
The POS Identification Number “was only used at the aggregated level. The survey has now been discontinued.” Meaning? Yet two days later, it is still online and working. If you leave your POS ID # blank, it states: “Text Response is Required.” There is still no ‘Privacy Act Notice.’ Typical postal double-speak?
Don Cheney
Auburn WA
________________________________________
From: USPSEmployees @ usps.gov
To: doncheney @ xxxx.com
Date: Thu, 20 May 2010 05:36:47 -0500
Subject: FW: USPS Retail Employee Survey Lacks Privacy Act Safeguards
Good morning Mr. Cheney,
We appreciate your patience while your inquiry was being investigated. The Retail Employee Survey was never reviewed or approved by the Privacy office. The POS Identification Number was not pulled into the survey results and was only used at the aggregated level. The survey has now been discontinued.
Thank you for bringing this matter to our attention.
USPS Privacy Office
________________________________
From: Don Cheney [mailto:doncheney @ xxxx.com]
Sent: Friday, April 16, 2010 4:18 PM
To: PRIVACY OFFICE
Subject: USPS Retail Employee Survey Lacks Privacy Act Safeguards
Some USPS managers are requiring all window clerks to answer an online survey regardless of how many hours they work the window. I clicked on the link, https://USPSLSSA.questionpro.com, and didn’t see a valid ‘Privacy Act Notice.’ Specifically, content items b, c, d, and e listed in section 3-2.2.b.1 for a ‘Privacy Act Notice’ are missing. Since the retail clerks have to enter their POS ID, they are personally identifiable and should receive a ‘Privacy Act Notice.’ Did your office approve this online survey?
Don Cheney
Auburn, WA
Handbook AS-353 Guide to Privacy, the Freedom of Information Act, and Records Management
3-2.2 Privacy Notice
The following describes privacy notice requirements.
a. General. When the Postal Service asks customers, employees, or other individuals to provide information about themselves and that information is maintained in a system of records, the Postal Service must provide an appropriate privacy notice. The Privacy Office must approve all new forms (hard copy and electronic) that collect customer, employee, or other individuals’ information. This includes hard copy and electronic forms, new forms, and forms scheduled for revision and reprinting.
b. Content. The privacy notice must contain the following information:
1. For individual consumers, employees, or other individuals, the privacy notice must explain:
a. The reason the information is being collected.
b. Whether providing it is mandatory or voluntary, and the effects of not providing it.
c. The disclosures (known as routine uses) that may be made of the information.
d. Which statute or executive order authorizes the collection.
e. That the customer privacy policy is available on usps.com.
Exhibit 3-2.2 Procedures to Provide a Privacy Notice
Online
For employees, a privacy notice that meets the content requirement of section 3-2.2b must be available on the screen near where data is collected.
District Court Dismisses Lawsuit Against USPS For Selling Employees Personal Data
This is an update on the nationwide class action court case involving Postal employees filed two years ago. Postal Employees claimed that USPS violated the Privacy Act by selling its employee master file, containing personal, private employee information, including “the complete home address database of all career and non-career, full and part-time employees.
According to lawsuit, the Postal Service’s disclosure of information is evidenced by the Postal Service’s “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7,” a postal regulation that allows private corporations to submit competitive bids for co-branding and other types of marketing agreements using the employee master file. Postal Employees complained that all of this is done without the Postal Service employee’s approval, consent, or knowledge. They also argued that the Postal Service received more than $8.5 million in profit by selling its employee master file.
The Postal Service admitted that it engaged in direct marketing of co-branded products and services to its employees but their actions does not violate the Privacy Act. The Postal Service argued in part the lawsuit should be dismissed because (1) it is an improper challenge to a Postal Service regulation, i.e., the “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7,” ; (2) it arises out of Postal Employees’ employment relationship with the Postal Service; and (3) there is no clearly defined independent cause of action for unjust enrichment under federal common law.
Postal Employees Can Opt Out
The Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7 states, “Employees who have questions about receiving mail under this program or their privacy, or if they would like to opt out of mailings under this program, may contact the Privacy Office at:
Privacy Office
US Postal Service
475 L’Enfant Plaza SW RM 10407
Washington, DC 20260-2200
The District Court ruled in part:
Plaintiffs next point out that the Postal Service’s regulation, i.e., the Management Instruction, enriched no one; rather, it was the unjust enrichment from the performance of the co-branding contracts that is at the heart of their complaint. (Sec. Resp. at 19.) But the Postal Service’s performance of the agreements is done pursuant to the Management Instruction, incorporated into the Postal Service regulations at 39 C.F.R. § 211.2(a)(3).
The court finds Plaintiffs’ attempt to circumvent the prohibition against challenging a Postal Service regulation by contending that they are not challenging the regulation itself, but the profits received from enacting the regulation, to amount to a distinction without a difference. The core of Plaintiffs’ claim against the Postal Services is its enactment and implementation of the Management Instruction. Accordingly, the court concludes that Plaintiffs’ claim of unjust enrichment is a direct challenge to the Postal Service’s Management Instruction – the regulation granting it authority to enter into the co-branding agreements – and therefore there is no waiver of the Postal Service’s sovereign immunity for this remaining claim. Accordingly, the court concludes that it does not have jurisdiction to adjudicate Plaintiffs’ unjust enrichment claim based on a Postal Service regulation.
For the reasons stated GRANTS the Postal Service’s motion to dismiss (Dkt. # 55). The court DISMISSES Plaintiffs’ complaint against the Postal Service.
The lawsuit now moves to the Court of Appeals.
Previous story on lawsuit: http://postalreporternews.com/2007/07/30/class-action-lawsuit-filed-against-usps-for-privacy-violations/
Subcommittee Holds Hearing to Evaluate the Postal Service’s Cuts in Operations and Network
PR note: Correction from yesterday’s post. The House postponed the hearing to markup HR 22 and HR 1345 and not the hearing noted below. Sorry for the confusion.
WASHINGTON, D.C. – On Wednesday, May 20, 2009 at 10:00 a.m. in room 2154 of the Rayburn House Office Building, the Subcommittee on Federal Workforce, Postal Service and the District of Columbia will hold a hearing entitled, “Nip and Tuck: The Impact of Current Cost Cutting Efforts on Postal Service Operations and Network.”
This hearing is a part of a series of hearings the Subcommittee is conducting to examine and discuss the Postal Service’s current operational and financial challenges. Wednesday’s hearing, in particular, will examine the status and impact of the United States Postal Service’s cuts in operations and services, and recent efforts to optimize its network and improve efficiency.
“The Subcommittee and the American people are alarmed by reports that show that just halfway into this fiscal year the Postal Service already has a loss of $2.3 billion. To further complicate things, Postal officials see no signs of improvement and anticipate a total loss that almost triples that amount by year’s end,” said Chairman Stephen F. Lynch.
Reports from the first half of this fiscal year reflect that the Postal Service’s total revenue loss is $2.3 billion, compared to fiscal year 2008’s total loss of $2.8 billion. These losses, coupled with the recent decision to reduce costs by closing six of its 80 district offices, eliminate positions across the country, and offer another round of early retirements make the Subcommittee’s hearing very timely.
In light of USPS’s current financial pressures, Wednesday’s hearing aims to generate effective short and long term strategies to reduce costs and improve efficiency at the Postal Service.
“The Postal Service has made tough decisions to cut costs by consolidating facilities, realigning carrier routes, shortening post office hours, and the very unpopular, raising of postal rates. The Subcommittee will examine the impact of these cuts on postal employees and customers, assess whether these actions go far enough, and explore what additional opportunities the Postal Service can undertake to remain viable.”
Witnesses’ testimonies, the Chairman’s opening statement and a 10:00 a.m. live broadcast of the hearing can be found on the Subcommittee’s website, federalworkforce.oversight.house.gov
Senator Collins Introduces Postal Resolution Reaffirming Protections of Sealed Mail
April 17, 2007 -
Washington, DC – U.S. Senator Susan Collins (R-ME) today introduced a bipartisan amendment reaffirming that both federal law and the Constitution protect sealed domestic mail from being searched. The amendment is in response to a signing statement that the White House issued in conjunction with the signing of the Collins-Carper postal reform legislation.
In a speech before the U.S. Senate, Senator Collins explained that following the singing of the Postal Accountability and Enhancement Act, the White House issued a statement that resulted in confusion about the Administration’s commitment to abide by the basic privacy protections afforded sealed domestic mail.
“The President’s spokesman has explained that the signing statement was not intended to change the scope of the law. But the statement caused confusion and concern about the President’s commitment to abide by the basic privacy protections afforded sealed domestic mail,” said Senator Collins. “Given this unfortunate perception, I wish to be very clear as the author of the postal reform legislation. Nothing in the Postal Reform Act or in the President’s signing statement alters in any way the privacy and civil liberty protections provided to a person who sends or receives sealed mail.”
The Collins-Carper Postal Reform bill, which was signed into law in December 2006, represents the most sweeping reforms of the U.S. Postal Service in over three decades. It will help the Postal Service meet the challenges of the 21st Century, establishes a new rate setting system, and helps ensure a strong financial future for the Postal Service. And it protects the basic features of universal service. The new law also provided for continued authority for the Postal Service to establish a class of mail sealed against inspection.
“Under current law, mail sealed against inspection is entitled to the Constitutional protection against unreasonable searches. With only limited exceptions, the government needs a court warrant before it can search sealed mail,” said Senator Collins.
Senator Collins’ resolution is cosponsored by Senators Carper, Daniel Akaka (D-HI) and Norm Coleman (R-MN).
Related link: Can Bush Open Mail Without Warrant? (12/29/2006)