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Federal union employees have to make a Sophie’s Choice of paths to remedies for discrimination issues
Bill Clinton signed the law, which I quote and link to below. I suppose it was a compromise deal of some sort, because the law is anti-employee. Whereas Bill was generally pro-employee — He gave us FMLA.
People in Government unions feel highly motivated to complain to the unions about conduct that could be considered discrimination-related, before they try to file an EEO complaint about similar conduct. This could be a mistake, as I will explain below, because of a law I discovered that was signed by Bill Clinton.
And who knows which path will ultimately be best (Union or EEO)? — Sometimes the union path is best, and sometimes EEO is best, for similar conduct — Let a lawyer help you decide which path is right for you in your unique circumstances.
I have not yet met a Federal Union-Covered Employee who is aware of the existence of this choice of paths. Postal workers are probably the most affected, because the Postal Union appears to be more aggressive than the other Federal Government Unions. But all Federal Government Unions are covered.
In practice, the EEO office will still take your discrimination complaint, even after you go through the Union grievance process over the same discrimination-related issues — But they don’t have to do so, and they certainly know it.
But later on, when you try to eventually sue for illegal discrimination, if you had filed with the union over similar conduct before filing with EEO, you are going to face a mountain of legal battles — For example, you may have lost the right to file EEO, due to the union grievance being filed first, and therefore you may not have really had the ultimate right to file for a hearing with the EEOC, even though the EEOC might have agreed to hear your case, and so then the Court may lack jurisdiction to hear your further appeal of what the EEOC decided — All of that is possible.
Your lawyer will of course argue that the law does not demand the choice that it appears to demand.
Here is a snipet from the actual law, followed by links —
(d) An aggrieved employee affected by a prohibited personnel practice under section 2302 (b)(1) of this title which also falls under the coverage of the negotiated grievance procedure [FYI This means the union grievance process] may raise the matter under a statutory procedure [FYI This means the EEO-EEOC process – I have not figured out yet whether this provision applies to the Merit System] OR the negotiated procedure, BUT NOT BOTH.
(Emphasis and FYI comments mine) (Did you notice the “But not both” words in the law? Words mean things.)
The devil is in the details — Thanks, Bill, for hurting employee rights.
We can try to argue that the law does not completely prohibit taking both paths, but instead merely means that both paths cannot be taken at the same time. Iffy, though.
But the EEOC agrees with my fear that 5 USC 7121 requires a permanent choice, and will dismiss your EEOC complaint if you took it to a Federal Union first.EEOC page about the requirement to make the choice
See the law here: 5 USC 7121.Here is the other statute cited within 5 USC 7121, which talks of discrimination, and makes me somewhat confident that a Court will give you a hard time, if you feel discriminated against and file with the union first, rather than file EEO, because your union contract probably discusses discrimination issues: 5 USC 2302.
Considering this law, 5 USC 7121, Federal Union Contracts should NOT any longer include ANY mention of “discrimination”, to better enable you to argue that your grievance was about something other than “discrimination” and is not covered by this evil 5 USC 7121 law. (FYI Union contracts typically contain routine promises by the employer not to engage in illegal forms of “discrimination”. I think it has become a bad idea for Federal Government Union contracts nowadays to mention “discrimination”).
This little law provision is so buried in the dirty details that I have seen no discussion of it among lawyers. There is some coverage of it on government websites, but it got no meaningful attention when passed, and I discovered it purely by accident, because I like to read this boring crap, and then try to figure out what it might mean for my clients.
This kind of sneaky stuff happens all the time, and you are unaware of it — They are always coming after your employee rights, as is happening right now in Missouri, and people like employment lawyers are trying to protect you. Sometimes we fail. There are too many attacks on your employee rights — We apparently can’t keep up.
Let’s recap: If the issue is discrimination, you have EEO rights, but you can harm those rights by filing a union grievance first, over the same or similar issues. Despite that, the EEO people will take your complaint after the grievance process unfolds, leading you to the false belief that your EEO rights have been fully preserved.
Later on, you will learn that the Government has engaged in a farce, and they will argue in court for dismissal of your EEO-related case, due to your choice of the union grievance mechanism first, when the union issues were related to your allegations of discrimination, rather than use the EEO process first. And oh, by the way, they will also argue that your EEO claim was untimely filed, due to the delay caused by the union grievance process.
So, as they say in the famous “Saw” movie franchise — Make your choice.
The Government screws its employees every which way it can.
Have a lawyer help you decide what to do, please.
Article written by | Tim Willoughby
Maintained by Attorney Phil Willoughby
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Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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