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Are you a breastfeeding mother who works in the District of Columbia? Does your employer provide you with the break time that you need to pump milk for your baby?  Does your employer provide you with a clean, private space– other than a toilet stall or a bathroom– for you to pump breast milk?  If not, your employer may be in violation of the law.

In the District of Columbia, there is a law that protects the rights of breastfeeding mothers.  In almost all circumstances, employers must allow women reasonable break time in which to express breast milk in a private, sanitary area.  In 2007, the District of Columbia passed a law, entitled the “Child’s Right to Nurse Human Rights Amendment Act,” which provides that an employer shall provide reasonable daily unpaid break periods to an employee who wishes to express breast milk for her child to maintain milk supply and comfort.  In addition, the law provides that an employer shall make reasonable efforts to provide a clean room or other location in close proximity to the work area where an employee can express her breast milk in privacy and security.  Employers are exempted only if it would cause an “undue hardship” to the employer. An undue hardship is one that “requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources, and the nature and structure of its operation.”  Employers who violate the law commit an unlawful discriminatory practice under the D.C. Human Rights Law.

The law firm of Kator, Parks & Weiser, P.L.L.C. strenuously advocated for the passage of this law in 2007, and has advised breastfeeding mothers in D.C. about their rights to pump milk at work.  If you believe your employer may be in violation of the law, please contact Kator, Parks & Weiser today for a free consultation.

When a federal agency takes an adverse action against a non-probationary federal employee, it must follow basic due process requirements.  The ultimate adverse action is subject to being reversed by the Merit Systems Protection Board (MSPB) if due process is not followed.  The basic requirements are that non-probationary employees must be provided at least 30 days’ advance written notice of the adverse action as a proposed adverse action unless the “crime provision” exception applies.  Adverse actions are generally defined as a suspension for more than 14 days, a demotion or a removal from federal service.

When such an adverse action is proposed, the agency must state the specific reasons for the adverse action in the notice, and the employee must be given an opportunity to review any and all materials relied on in proposing the action.  During the advance notice period, the employee must be given an opportunity to respond, both orally and in writing to the proposal notice, and present additional information, including affidavits.

The agency’s deciding official must consider only the reasons stated in the proposal notice, and the employee’s reply.  If the agency considers any additional information in reaching the adverse action decision, there is a likely due process violation and the action may be reversed in an appeal filed with the MSPB.  Additional new information that relates either to the charged misconduct or to aggravating factors supporting an enhanced penalty could be determined by the MSPB to be constitutionally impermissible if the employee did not have a chance to respond to that information.

If the MSPB concludes that due process was not followed, the Board can reverse the action, and the employee would be entitled to a new and constitutionally correct proceeding.

After issuing a 2009 notice of proposed rulemaking and receiving comments, the EEOC issued changes to federal regulations on July 25, 2012.  These modifications to the federal regulations impact the consideration of discrimination complaints filed by federal employees and applicants.  Significant modifications to 29 C.F.R. Part 1614 are discussed below.

Compliance

Federal executive agencies are required to identify and eliminate discriminatory practices and policies.  Under the recent modifications of 29 C.F.R. Part 1614, the EEOC will review agency programs for compliance with Civil Rights laws and the EEOC’s Management Directives.  If the EEOC determines that an agency’s EEO program is not in compliance, the EEOC will give the agency a reasonable opportunity to cure defects that have been found, provide a reasonable justification for its non-compliance, or establish that its program is in compliance.  If an agency fails to satisfy one of these criteria, a notice of non-compliance will be issued.  Under the rule, the EEOC Chair has discretion to determine whether a notice of non-compliance should be made public.

Pilot Projects

Under the new rule, the EEOC may allow agencies to conduct pilot programs for procedural complaint processing procedures that vary from the requirements of 29 C.F.R. Part 1614.  An approved pilot project can run for two years, and may be extended for an additional year if good cause is shown.

Notice of Rights

Under the EEOC regulations, an agency is required to complete its investigation and notify a complainant that he has the right to request a hearing (or an immediate final decision) within 180 days from the filing of the complaint.  The modified regulations now require that if the agency does not complete its investigation within 180 days, the agency must, within 180 days, issue a written notice to the complainant informing him that the agency has been unable to complete its investigation within the required time limits, and the agency must estimate and provide to complainant a date by which its investigation will be completed.  The notice must also inform the complainant that if he does not want to wait until the agency complete its investigation, he may instead request a hearing or file a civil action in an appropriate United States District Court.  The EEOC, in the explanatory preamble, makes clear that a full range of sanctions are available should an agency not complete its investigation within the required time period, and that these sanctions may be warranted even if the agency issues the required notice under the new final rule.

Retaliation

Under the new rule, the EEOC clarified that federal employees alleging discrimination in proposals to take personnel actions or other preliminary steps to taking personnel actions should be dismissed unless the complaint alleges that the proposal or preliminary step is retaliatory.  That is, challenges to proposals or preliminary steps are actionable if the federal employee alleges that the proposal or preliminary step was issued: (1) because the complainant had engaged in prior EEO activity; (2) because the complainant had opposed a practice which he believed violated one of the federal EEO laws; or (3) to dissuade the complainant, or a reasonable person in the complainant’s circumstances, from engaging in protected EEO activity.

Class Complaints

The EEOC’s final rules makes two significant changes to the class complaint process.  First, the final rule seeks to shorten the class certification process.  An appeal of the acceptance or dismissal of a class complaint will be processed by the EEOC within 90 days.  Second, the final rule makes an administrative judge’s decision on the merits of a class complaint a final decision, which the agency can fully implement or appeal in its final action.  If the agency does not fully implement the administrative judge’s decision, the agency may appeal the parts of the decision that it wishes to contest.

EEOC Process: Electronic Filing

Agencies are now required to submit appeals and compliant files to EEOC in a digital format.  Complainants are encouraged to submit their documentation electronically.

MD-110

In addition to the explicit changes to 29 C.F.R. Part 1614, the EEOC indicated that it will revise Management Directive 110 to provide additional guidance regarding the changes made by the final rule.  The EEOC will continue to review the federal sector EEO process in order to improve its quality and efficiency.