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1. Congress Returns to Plate of Leftovers
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Congress has returned to work from a month-long break with a goal of working
only until around the end of the month before adjourning for the year. While
it's questionable whether that goal will be reached, it's widely assumed that
Congress will work only a few weeks into October at the outside, a short period
to deal with many issues left unfinished. For federal employees, the primary
issue is the fate of the general government appropriations measure, which
contains a 3.9 percent average general schedule pay raise in January, along
with several potential new restrictions against contracting out federal jobs.
That bill has cleared the committee level on both sides of Capitol Hill but
seems destined to be included in a catchall bill. Since President Bush didn't
issue an "alternative" raise by the end of last month, the debate remains
between the 2.9 percent he proposed early this year and the 3.9 percent advocated
by the appropriations committees.

2. Raise Likely Would Be Divided
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Although the appropriations bills are silent on the issue, a 3.9 percent raise
likely would be divided between across-the-board and locality components for
general schedule employees. In most recent years in similar situations, the
funds for 1 percentage point of the raise have been set aside as locality pay
and divided up among the metropolitan localities and the catchall "rest of the
U.S." locality according to labor market data gathered by the Labor Department,
while the rest has been paid to GS employees across the board. The raise earlier
this year of an average of 3.5 percent, for example, produced raises ranging
from 2.99 to 4.49 percent; a 3.9 percent average raise thus likely would yield
actual raises of about 3.5 to 5 percent. The figures are determined according
to Labor Department data on local job markets. The Senate measure would continue
the practice of capping raises for wage grade employees--who are under a
separate locality pay system--at the local GS amount. The House has not published
specific bill language in that area yet but it has supported that practice in
the past.

3. DHS, DoD Bills also Pending
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Also pending final action--and also a candidate to be included in a catchall bill--
is the appropriations measure covering DHS, which would boost employment levels
there, particularly in Customs and Border Protection. Both versions also would
restrict funding for the DHS alternative personnel system, with the House language
more restrictive and essentially aiming to block the program for another year.
Another must-pass bill is the annual DoD authorization measure, which is back
before the Senate. The House version of that bill would impose a three-year
moratorium on new contracting out studies there, as well as certain other
restrictions; in many past years the Senate has accepted restrictive House
language once the bill goes to a conference.

4. End of Fiscal Year Concerns Raised
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In what has become something of an annual ritual, some employees are expressing
concerns about potential agency shutdowns with the end of the fiscal year
approaching September 30 and only limited progress made on agency spending bills.
While partial government shutdowns happened fairly often in the ‘80s and early '90s,
there hasn't been such an event since late 1995, which resulted in a harsh political
fallout for the congressional leaders who were involved. There's a general
expectation that neither political party wants to risk a shutdown in an election
year and that continuing funding of some sort will be enacted in time for the start
of the new fiscal year. However, the threat of shutdowns often is used as a tool in
negotiations over difficult issues.

5. Cost One Issue on Parental Leave Benefit
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Also pending in the Senate is a House-passed bill to provide employees with four weeks
of paid leave for parental purposes. The White House has threatened a veto, calling
the benefit costly and unnecessary, clouding the bill's prospects for further movement.
A Senate counterpart (S-3140) has been offered, but the best prospect for approval
this year might be to attach the language to some other measure considered certain to
pass. A cost estimate said that about 40,000 federal employees would use such a
benefit each year if it were available, based on data showing that there are about
700,000 federal employees in the age group of 20 to 44 and applying general statistics
on birth and adoption rates for people in that range. Based on average salary
information, the Congressional Budget Office said, the average value for women who took
the maximum four weeks would range from about $2,600 to $5,100, while for men the
average range would be $2,800 to $5,800. It pegged the five-year cost, and thus the
value to employees, at $850 million.

6. Comparability Another Issue
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CBO said that "providing a more generous benefit to employees may enhance the federal
government's ability to retain employees after the birth or adoption of a child and
thereby lower recruitment and training costs"--a key argument of sponsors of the bill--
but it could not estimate what those savings would be. Backers say that such a benefit
is needed to keep the government's benefits comparable to what employees could get in
the private sector, although they base that argument largely on offerings of the
largest private sector employers. A report issued earlier this year by the congressional
Joint Economic Committee found that three-fourths of Fortune 100 companies offer paid
maternity leave, averaging six to eight weeks, although only a third of them offer
paid paternity leave, averaging two weeks. Overall, only 8 percent of employers offer
paid family leave, and one in five doesn't even offer unpaid leave, the report said.
It said that paid parental leave is common in other industrialized countries, but
opponents argue that the government does not compete for employees against other
countries, but against U.S. employers.

7. Expert's View: When FEHB Claims are Disputed
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While most health plan decisions about what is covered are correct, there are times
when they may not be, writes benefits expert Reg Jones. "When differences like that
arise, there is an appeals process in place for settling the matter," he writes.
You'll find his column at http://www.fedweek.com.

8. Special Rules for ALJs Described
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The Congressional Research Service has issued a report describing the special hiring,
performance evaluation and other rules applying to administrative law judges. For a
closer look, go to http://www.fedweek.com in the hot free info section of our website.

9. All But One TSP Fund Positive in August
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All TSP funds except the international stock I fund posted gains in August, with the
small U.S. company stock fund up 2.17 percent, the large company stock C fund up 1.46
percent, the bond F up 0.92 percent and the government securities G fund up 0.33
percent. The S and C funds remain in negative territory over the prior 12 months,
though, down 6.89 and 11.06 percent in that time; the F and G funds are up 6.09 and
4.16 percent, respectively. The I fund lost 4.16 percent in August for a 14.71 percent
12-month loss. The August and 12-month returns for the lifecycle funds are: income,
0.35, 1.26; 2010, 0.29, -0.86; 2020, 0.16, -4.97; 2030, 0.17, -6.62; 2040, 0.11, -8.13.

10. Federal Legal Corner: TSA Not Immune To Rehabilitation Act Claims
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On August 6, 2008, the Equal Employment Opportunity Commission issued its decision in
Chapman v. Dept. of Homeland Security, EEOC Appeal No. 0120051049. The Commission held
the Transportation Security Administration (TSA) was not immunized from the
Rehabilitation Act by its enacting statute.

Under a provision of the TSA's enacting statute (49 U.S.C. § 44395(f)(1)(B)(iii)),
TSA security screeners are required to "be able to hear and respond to the spoken voice
and to audible alarms generated by screening equipment in an active checkpoint
environment." Chapman, the appellant, had applied for a job as a TSA security screener
and was summoned for interviews at the TSA offices in Oak Ridge, Tenn. in August 2002.
Chapman had a hearing impairment which was roughly corrected to normal hearing through
the use of hearing aids. However, on the day he visited Oak Ridge, Chapman's hearing
aids were being adjusted.

The testing procedure at Oak Ridge consisted of two parts: Phase I, a computer-based
assessment battery with oral instructions, and Phase II, which included an interview,
physical and medical tests (including a hearing test) and a background check. Before
the Phase I test began, Chapman informed the test administrators of his hearing
disability and requested as a reasonable accommodation that either (a) the test
administrators speak loudly when giving the oral instructions for Phase I, or (b) that
he be provided personal assistance to guide him through the test-taking process. The
TSA test administrators summarily refused any accommodation. Chapman failed the Phase I
test; he was not permitted to participate in Phase II of the test (and thus never
received a hearing test from the TSA), and was ultimately not selected for the TSA
screener position.

Chapman filed a formal EEO complaint alleging failure to reasonably accommodate and
nonselection on the bases of disability and age on March 7, 2003. The case came before
an EEOC administrative judge, who dismissed Chapman's claim for failure to state a
claim, finding that the TSA's enacting statute created a hearing requirement for
screener employment which superseded any Rehabilitation Act claim. Separately, the
administrative judge granted summary judgment to the TSA, holding that Chapman was
unable to show that he was a qualified individual with disability, reasoning that
Chapman was not substantially limited in any major life activity since his hearing
aids fully corrected his hearing disability. Chapman then appealed the dismissal of
his disability claims to the EEOC Office of Federal Operations.

The Commission reversed and remanded the case for further proceedings. First, the
Commission held that dismissal was improper under Bell Atlantic v. Twombly, 127 S.Ct.
1955, 1966 (2007), as Chapman had met his burden of stating a complaint which
'plausibly suggested' his entitlement to relief. The Commission found that the TSA's
enacting statute did not globally preempt the Rehabilitation Act for TSA screeners,
and instead held that a case-by-case analysis was required. Under the case-specific
analysis, Chapman's claims were sufficient as (a) challenging the denial of reasonable
accommodation in the testing process, and (b) as asserting that he could have met
the requirements of 49 U.S.C. § 44395(f)(1)(B)(iii) in practice and performed the
screener job adequately.

In reversing the administrative judge's summary judgment decision, the Commission
took note of the evidence of several audiologists in the record, who detailed Chapman's
hearing disability and the limitations in how far the hearing aids corrected Chapman's
disability. Specifically, these audiologists reported that, even when corrected,
Chapman's ability to distinguish sounds was impaired in loud locations even with
hearing aids (causing Chapman to resort in part to lip reading). Accordingly, the
Commission remanded for proceedings to determine if Chapman was a "qualified"
individual with disability (determination of which would include assessment of
whether Chapman could meet the 49 U.S.C. § 44395(f)(1)(B)(iii) standards). The
Commission specifically criticized the TSA for its complete refusal to engage in any
interactive discussion of Chapman's requested accommodation at the Oak Ridge testing
site.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law
firm dedicated to the representation of federal employees worldwide. For more
information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees
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