JSA News and Updates!
JSA NEWS!
1/3/12 – JSA Wins New Business: SRA/DOI
Systems Research and Applications Corporation (SRA) has chosen JSA, as subcontractor to provide support to the U.S. Department of Interior IT Workforce Change Management initiative.
11/14/2011 – JSA Wins New Business: FAA & PASS
The Federal Aviation Administration (FAA) and the Professional Aviation Safety Specialists (PASS) have chosen JSA, as contractor to provide interest based training, interest based consulting services, and labor contract facilitation services to FAA and PASS for negotiation of a new collective bargaining agreement.
9/1/2011 – JSA Wins New Business: SRA
Systems Research and Applications Corporation (SRA) has chosen JSA, as subcontractor to provide the Department of Veterans Affairs (VA) Labor Management Relations Training services in training design, delivery and logistics.
7/12/2011 – JSA Wins New Business: VA
The Department of Veterans Affairs (VA) has chosen JSA, as contractor to design, develop and present a one (1) day labor relations training.
7/11/2011 – JSA Wins New Business: SRA/ICE
Systems Research and Applications Corporation (SRA) has chosen JSA, as a subcontractor to provide labor relations support services to ICE OHC Leadership.
7/1/2011 – JSA Wins New Business: OCC
The Office of the Comptroller of the Currency (OCC) has chosen JSA, as contractor to provide assistance in developing its compliance approach to Executive Order (EO) 13522.
9/19/2010 – JSA Wins New Business: SRA
Systems Research and Applications Corporation (SRA) has chosen JSA, as a subcontractor to design, develop, and deliver introductory awareness training on Executive Order (EO) 13522 for VA Executives, Supervisors, Managers, Union Officials and selected VA employees.
8/2/2010 – JSA Wins New Business: GSA
The General Service Administration (GSA) has chosen JSA to provide authoritative technical advice, guidance and assistance on Labor Management Relations (LMR).
7/30/2010 – JSA Wins New Business: USDA
The United States Department of Agriculture has chosen JSA to provide advisory and facilitation services to enable management to comply with the collaborative labor relations requirements of Presidential Executive Order 13522.
Submit your Resume to JSA!
JSA is looking for resumes from applicants with demonstrated experience in classifying Federal positions us to the GS-15 grade level, as well as administering human resources programs to include classification, position management and related reporting. If you are interested and live in the Washington D.C. area or within commuting distance please send your resume to nsoden@jsafed.com – Position is depended on contract award.
JSA released the Second Edition of The Essential Guide to Federal Labor Relations – What You Need to Know to Be Successful earlier this month. The 225 page Second Edition gives Managers, Supervisors, Labor Relations Practitioners, and Union Representatives an in-depth understanding of labor relations concepts. This easy to read comprehensive guide is essential for practitioners and those actively involved in day-to-day labor relations. The Second Edition contains new and updated information including all new chapters on Unfair Labor Practices and Title 38 issues affecting the Department of Veterans Affairs.
Price: $31.95 plus $4.25 shipping and handling
For discount information on multiple book purchases, or to place an order please call 256-520-9640.
Two Approaches to Negotiations
Distributive Negotiations Integrative Negotiations
Having been involved in labor relations and negotiating throughout my career, I have long been interested in the theories behind negotiations. Also, as a woman, I have become curious about the possible impact that gender may have on negotiation outcomes and styles. Consequently I would like to devote a few articles to these topics. Hopefully there will be some information presented that will be of interest and, ideally, of use, to you.
Let us start with accepting the definition that negotiation is a decision-making process involving two or more people who have issues over which they disagree and/or resources to allocate. From an analytical viewpoint there are two major strategies of, or approaches to, negotiation: distributive and integrative.
Distributive negotiations are what you traditionally think of when you think of negotiations. It is an approach where the idea is to “win”, and by “win” I mean that you want to get the best deal for yourself, and it really doesn’t matter how the other side fares. The opponent is viewed as an adversary. This style of negotiations takes the view that there is a fixed amount of bounty to gain in the negotiation, and the more I get the less you get, or vice versa. Price negotiations are generally a prime example of distributive negotiations. For example: I want to buy a car. I want to get the greatest amount of benefits for the least amount of money. Conversely, the car dealer wants to get the most money for the fewest benefits given to me. The assumptions here are that the amount of benefits and the amount of money available for this deal are both fixed, and each side wants the best possible outcome for his/her own side. If I gain, you lose. Thus, distributive negotiations are sometimes known as “win-lose” negotiations.
In pure distributive negotiations I have a “position” which I have determined is the outcome I need to “win” the negotiation, and I try to stick to my position as much as possible. Conversely, you also have your own “position” to which you want to stick. Sometimes these “positions” take the shape of “proposals” set forth by each party at the commencement of the negotiations. If the other party does not accept our position/proposal right away, we may each have to compromise a bit. But always I am looking to stay as close to my original position as possible, as are you to yours.
A different approach to negotiations is known as integrative negotiations. This approach looks for mutual gains for both parties to the negotiations, trying to make the outcome as good as possible for both sides. This type of negotiation is known as “win-win” negotiations, or collaborative, or mutual gains, or interest-based negotiations. Using this approach, the two parties openly share their “interests” (not positions) and then together creatively search for solutions that will best meet both parties’ needs. The focus in integrative negotiations is to not commence the negotiations with pre-set positions, but rather to openly tell each other what your real interests are, and then to try to find ways to satisfy everyone’s interests to the greatest extent possible.
Often, when underlying interests are revealed, you will find that they are not mutually exclusive. For example, in the car-buying example above, perhaps my real interest is in having the lowest down payment and low monthly payments because I do not have a lot of cash on hand or great cash flow. And perhaps the seller’s underlying interest is having a reasonable sales price and closing the deal quickly because there is an incentive to up the number of cars sold that month. Using the collaborative approach it is possible to explore possible payment plans that extend the payment period, but keep the payments low (my concern) yet keep the final price acceptable and close the deal quickly (seller’s concern).
Integrative negotiations frequently use a problem solving process that involves several steps. These steps are generally:
- The parties agree upon the issue or problem to be resolved
- Each party identifies its interests in regard to the issue, and explores the other party’s interests for understanding
- The parties create several options or potential solutions to resolve the issue (brainstorming)
- The parties agree on criteria (i.e., characteristics of an acceptable solution) to be used to evaluate the possible solutions or options.
- The parties select the solution(s) that best meet their criteria
- If necessary, the parties combine the options into a comprehensive solution
Negotiations are rarely purely distributive or integrative. Often, pieces of the other approach will slip into a negotiation scenario. Both approaches have their strengths and weaknesses. Both are best employed, and most effectively used, in certain types of situations. And interestingly, there is ongoing research as to whether one gender might be more inclined to use one approach, and what the ramifications of that are. These and other considerations will be taken up in my next articles.
Any ideas, opinions or views expressed in this article are mine alone, and do not necessarily represent those of JSA. Information presented is believed to be accurate, but it should not be relied on as authoritative.
written by: Sue Whitney
Comp Time for Travel – What It Is and What It Isn’t
A TRAVEL COMP TIME REFRESHER
In the current times when it seems that all you hear of is Congress looking at ways to reduce benefits of Federal employees, it may be hard to remember that once upon a time, at the end of 2004, Congress actually passed a law providing for a nice benefit to Federal travellers. That law, providing for compensatory time off for Federal employees when travelling on official travel outside of their normal duty hours and away from their permanent duty station (“travel comp time” or TCT), was warmly received by the travellers. Some supervisors and agency fiscal managers, on the other hand, were not all that pleased. Prior to 2005, the vast majority of Federal employees who were required to travel outside of normal duty hours were not officially granted any pay or compensatory time off-duty hours they put in while on official travel. Under the new law, travellers were to be credited with compensatory time off for those extra hours. For some travellers this amounted to several weeks of additional time away from the office. For some agencies it amounted to the equivalent of numerous FTEs of “lost work” time.
As with most matters in the government, especially those dealing with compensation, the implementation of this benefit is complex. This article is not the place to cover all of the specifics and intricacies of the regulations. However, there are some major points that it may be helpful to review in this article. If you remember the following major points or principles in travel comp time, it should hopefully dispel many of your questions.
Major points
- The agency should have a policy on travel comp time which should address the following discretionary points:
- What are the agency’s procedures to request travel comp time?
- Is there is a specific TCT request form to fill out after travel is completed?
- How soon after travel is completed must the proper request for TCT be received by the agency (note: the agency may deny travel comp time if this timeframe is not met)?
- What is to be considered the “usual waiting time” that precedes or interrupts travel (most agencies allow 2 or 3 hours – periods longer than that may require additional documentation or may not be creditable for TCT)?
- What are the geographic limits of the employee’s official duty station (this is generally 50 miles, but may vary)?
- Will the agency credit TCT in ¼ hour (15 minute) or 1/10 hour (6 minute) increments?
- The travel, both foreign and domestic, must be official and authorized. You must follow the agency’s policy on how to obtain official travel orders and approval to receive travel comp time.
- The time requested must be for time spent travelling. It does not include time spent once you arrive at the temporary duty station. Specifically, it does NOT include time you spend working at the temporary duty station (even if these hours are outside of your normal duty hours.)
- The time requested as TCT must NOT be otherwise compensated. TCT hours must be outside of your normal tour of duty, and cannot be overtime or credit hours. Also, since you are compensated for some hours on a holiday, or an in lieu of holiday, those hours may not be credited as TCT.
- There is no limit to the amount of TCT that you may earn.
- TCT does not count against the biweekly or annual premium pay limitations.
- After completing the travel, you must abide by the requirements of the agency policy to get the travel comp time approved (e.g., filling out the proper request form, if there is one, submitting the request in a timely manner to the proper person, etc.).
- If the agency approves of your request to alter the authorized travel orders for your own convenience (e.g., use an alternate route of travel, insert annual leave during the travel period, etc.), the agency must compute the amount of travel comp time that would be due you under both scenarios and then provide you with the lesser of the two amounts of travel comp time.
- You must use travel comp time within 26 pay periods of the pay period for which the TCT was credited. If you do not use the TCT within that period it is FORFEITED, with few exceptions.
- If your travel covers more than one time zone, you should compute the TCT as if all of the travel took place in the time zone of the initial departure point for each leg of the trip. In other words, if you fly from Washington, DC to San Francisco, TCT should be computed by keeping all of the time in Eastern Time. On the way home, all time should be computed using the departure point (i.e., San Francisco) time zone, Pacific Time, for that entire leg.
- TCT may NEVER be converted to pay.
- TCT does not apply to members of the SES.
- Unused TCT is forfeited upon separation from an agency, voluntary transfer to another agency, or change to a noncovered position
- Travel time to or from a transportation terminal (e.g., airport, train station) and your residence is not creditable time if the transportation terminal is within what the agency has determined to be the limits of your official duty station (normally 50 miles). If the transportation terminal is outside of the limits, then your normal commuting time must be deducted from the time spent going to or from the terminal.
- Time spent travelling in connection with union activities is not creditable.
For those of you interested in labor relations it should be apparent that, given appropriate circumstances, some of the aspects of the agency’s TCT policy could be negotiable as far as the policy applies to represented employees. While OPM took care to write the governmentwide regulations to state that some of the discretionary aspects of an agency TCT policy were “within the sole and exclusive discretion of the employing agency” (thus removing them from negotiations) there are a few aspects that are not thusly limited and could be negotiable. For example: procedures to be used to request approval of TCT, forms to be used, timeframe for submitting required documentation after completion of the travel, whether TCT will be credited in 6 or 15 minute increments, procedures for using accrued TCT, etc.
I always recommend that you go directly to the source whenever you are trying to learn about something. So, in addition to researching your specific agency’s policy on TCT, you should know that TCT was created under the “Federal Workforce Flexibility Act of 2004”, Public Law 108-411, Section 203, October 30, 2004. OPM published interim implementation regulations on January 27, 2005. On April 17, 2007, OPM published final regulations that can be found at 5 CFR 550.1401, et seq.
Any ideas, opinions or views expressed in this article are mine alone, and do not necessarily represent those of JSA. Information presented is believed to be accurate, but it should not be relied on as authoritative.
Writen by: Sue Whitney
Fair Labor Standards Act (FLSA)
The Fair Labor Standards Act (FLSA) Grievances and Back Pay Claims typically come in three situational areas.
- An employee complaint that their position should be designated as Non-Exempt from the FLSA rather than Exempt.
- Management Suffered and Permitted a Non-Exempt employee to work overtime without proper compensation or that they were coerced into taking Compensatory Time in lieu of paid overtime.
- Travel outside the normal tour of duty by a Non-Exempt employee.
I am going to cover situation one very briefly, as it is position specific and requires the application of Title Five Code of Federal 551 (5 CFR 551) regulations (the Federal Government’s FLSA implementing instructions) to the job description content. If the job description is accurate, and the 5 CFR 551.201-216 exemption has been applied judiciously with any doubts resolved in favor of the employee, the Office of Personnel Management (OPM) and any other adjudicating official (Agency Grievance official or Arbitrator) will likely rule in favor of the Agency. However, if the job description is not accurate, and the employee has less flexibility in decision-making or scope and effect of work, or there are other major inaccuracies with the job description content as it relates to 5 CFR 551 exemptions, you can expect the adjudicating official will likely rule in the employee’s favor. Of significant concern to the management official making the FLSA decision and the supervisor of record of the position, is that the incumbent of the exempt position will regularly perform the grade controlling duties of the position – which is the link to the 5 CFR 551 exemption status.
The second situation is the Suffer and Permit provision of 5 CFR 551. Under the general concepts of 5 CFR 551, all work that benefits an Agency is considered Hours of Work. Under the FLSA and 5 CFR 551, Non-Exempt employees are to be compensated for all Hours of Work. Within most Agencies, prior to overtime being worked, there is normally a documented approval process with requesting and approving officials. This provides for prudent fiscal control on salary and wage costs. However, from time-to-time, supervisors permit employees to work outside their normal tour of duty and provide benefits to the Agency without compensation or directed approval of the Hours of Work. If an employee is Exempt for the FLSA, this typically is not a problem unless there is coercion – either implied or directed – to accomplish the work. If the employee is a Non-Exempt employee, the concept of Suffer and Permit comes into play.
How does the OPM define Suffer and Permit Work: Any work performed by an employee for the benefit of an agency, whether requested or not, provided the employee’s supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed.
In FLSA Pay Claims, OPM normally places the burden of proof for the first part of the definition on the employee to establish the time or hours spent performing activities for the benefit of the Agency. It is not atypical for the claim adjudicator to interview other members of the staff who could have observed the work as well as the supervisor. OPM has accepted employee blanket statements, hand notations on calendars, as well as other more sophisticated forms of documentation to demonstrate work was performed for the agency.
The second part of the definition is that the supervisor had knowledge or had reason to believe the work was being performed. In this arena, OPM normally shifts the burden of proof to management to demonstrate that they had no knowledge of the work being performed. The assertion by a supervisor that they did not order, direct, or approve the work to be preformed is insufficient to support the burden of proof placed on management. OPM adjudicators will look to determine if there was a reasonable expectation that management was aware of the work being performed. This may include physical observations by the supervisor, work products produced by the employee, email communications, or the normal operational tempo of the organization and its client base. For example, if a supervisor permits a receptionist to remain seated at his/her work station greeting and registering clients and answering phone calls during the employee’s non-paid lunch period, even if the supervisor does not observe this every day, their knowledge of the operational climate is sufficient to establish that they were knowledgeable of the work being performed.
The final part of the definition is that management had the opportunity to prevent the work from being performed. Here the burden of proof is always on management. The OPM adjudicators will be looking for affirmative actions by management to prevent the employee from performing the work. Management will need to demonstrate that the employee was on notice that the performance of the work was not to occur at the time and place it occurred. This may include written communications to the employee, or specific rotational schedules to provide for non-paid lunch periods, etc. The mere statement by management that they told the employee not to do the work, but did not follow-up to ensure compliance, may not be sufficient to persuade the adjudicator that management did indeed try to prevent the inappropriate work efforts.
The final area I will cover is that of travel for Non-Exempt employees. Travel for all employees Non-Exempt, as well as Exempt, should be scheduled during an employee’s normally scheduled duty hours to the maximum extent possible. When travel can not be scheduled during an employee’s normally scheduled tour of duty, and overtime is not paid, the supervisor is to document the reason why. If the employee requests why they are required to complete the non-compensated “hours of work” for travel, the supervisor is to provide the employee with their rationale (5 CFR 610.123).
A couple of basic rules that supervisors need to remember for their Non-Exempt employees are:
Traveling is considered “hours of work” if:
- Travel is during regular work hours;
- The employee is required to drive a vehicle or perform other work while traveling inside or outside regular work hours;
- The employee is required to travel as a passenger on a one-day assignment away from the official duty station inside or outside regular duty hours; or,
- An employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on a non-work day that corresponds to the employee’s regular work hours.
If an employee elects to use an alternative means of travel other than that proposed by the Agency, and the alternative means of travel requires more time “hours of work” than the Agency’s proposed travel, the employee is only entitled to the lesser amount of time considered “hours of work.”
If your activity needs assistance educating your supervisors concerning FLSA for Non-Exempt employees, Joseph Swerdzewski and Associates has a four-hour course designed to equip supervisors with a working knowledge of how to administer the Fair Labor Standards Act as it relates to the overtime provisions of the Act. For more information on this course or any of our other workshops please feel free to contact us at info@jsafed.com.
Written by: David Brooks, JSA Partner
6 Steps to Pre-decisional Involvement:
A formalized pre-decisional involvement (PDI) process will reduce misunderstanding about PDI and increase over time the trust the parties have in the relationship and the process itself.
Step 1 – What issues are appropriate for PDI? Develop criteria for what issues are subject to PDI. Some issues may be handled in the forums and others by supervisors/stewards.
Step 2 – When should the Union be involved? Under some circumstances, the point at which an agency has determined to study or review a matter may be the time to involve the union.
Step 3 – Who should be involved? Both labor and management should designate representatives at the forum level who can deal effectively in PDI.
Step 4 – What are the Expectations of Union and Management? The authority of the PDI groups should be understood so it is clear whether there is an expectation that the Union and Management will engage in collective bargaining after the PDI process is complete.
Step 5 – Develop the process for providing information and obtaining union input. An agreed upon process for providing information and obtaining input should be decided upfront.
Step 6 – Develop a Problem Solving Approach. It is the intent of the E.O. that problem solving will be used during PDI. Each side must learn skills in using problem solving techniques.
