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
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.
Unions Reach Settlement In Lawsuit Charging USPS With Intrusions Into Employees Medical Records
APWU News
The APWU and National Association of Letters Carriers (NALC) reached a settlement [PDF] with the Postal Service on May 20, 2010, ending a 2008 lawsuit in which the unions charged the USPS with “systematic and widespread intrusions” into members’ medical records. The settlement requires the Postal Service, agents of the USPS Office of Inspector General (OIG), and officers of the Postal Inspection Service to provide specific documentation to healthcare providers when they request medical information about postal employees.
In accordance with the agreement, the Postal Service and its agents must present a “HIPAA letter” to healthcare providers before asking them to disclose any health information about employees. The letter must include a description of the information sought and a statement demonstrating how it is relevant to a legitimate law enforcement inquiry. The letter also must instruct healthcare providers to provide only information that is relevant to the investigation of the employee’s alleged violations of law.
HIPAA is the Health Insurance Portability and Accountability Act of 1996, which protects the security of health data. The law outlines rigorous rules for safeguarding the privacy of medical records, but permits healthcare providers to disclose information to law enforcement officers and “health oversight” agencies without patient consent for legitimate law enforcement purposes and other activities authorized by law.
In accordance with HIPAA rules, the letter requesting medical information instructs healthcare providers to refrain from notifying employees of the disclosure of their records for a period of 30 days, unless OIG agents or Postal Inspection Service officers request a longer period.
The settlement addresses two major concerns that prompted the lawsuit: The alleged intimidation of healthcare providers by OIG agents and Postal Inspectors, who frequently demanded employees’ medical records without explanation, and the indefinite prohibition against healthcare providers notifying postal employees about the disclosure of their records.
“The OIG can no longer violate employees’ rights by using police state tactics when conducting sick-leave or workers compensation investigations,” said APWU President William Burrus. “The obligation to provide details about a request — instead of demanding access to private records — prevents the OIG from abusing its power when investigating routine personnel matters.”
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.
USPS Retail Survey Lacks Privacy Act Safeguards?
It appears USPS Headquarters has developed a retail survey for PS-07 Lead Sales and Service Associates (LSSA) , Clerk Finance Station, and Window Service Technicians. Some concerns are being raised about this survey including a lack of Privacy Act notice on the website.
From PostalReporter Reader (s)
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.’
Here is what the notice says:
The purpose of this survey is to collect data that will assist us in understanding the roles and responsibilities of the LSSA staying within the appropriate job description. The survey will also help measure the LSSA’s level of engagement with other retail clerks and our valued customers. This initiative is also in partnership with National APWU.
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.