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SMART LES Fight Continues

posted June 24, 2019

FEA FIGHT TO FIX/PREVENT PAY PROBLEMS CAN CONTINUE, THANKS TO COURT VICTORY



FEA's fight for a "Smart LES" to make pay, benefits and deductions clear to employees can continue, thanks to an Association victory last week in Federal Court.

The Washington D.C. Circuit Court of Appeals, including Chief Judge Merrick Garland, ruled in FEA's favor in our case against the Federal Labor Relations Authority (FLRA) over the Smart LES.

A majority of the FLRA had claimed FEA had not filed an Unfair Labor Practice complaint over the issue in a timely manner. The DC Circuit Court of Appeals threw out the FLRA's ruling, meaning our original ULP can now proceed.

FEA has been fighting for a "Smart" Leave and Earnings Statement -- one that will present clear and detailed information about things such as regular pay, LQA, TQSA, Post Allowance, insurance, extra duty pay and various withholdings -- for the past 17 years.

In a case won by FEA, an arbitrator's ruling in 2002 required DoDEA to develop the Smart LES. DoDEA appealed and lost, but then spent over a dozen years delaying and making excuses for its lack of progress before finally informing FEA and the arbitrator in 2015 they would not comply with the arbitrator's award.

That action prompted FEA to file the ULP. In response, DoDEA claimed they had provided notice years earlier that the Smart LES would not be implemented and, therefore, any ULP on the issue should have been filed at that time. An Administrative Law Judge (ALJ) held for FEA. But a majority of the FLRA overruled the ALJ.

In its ruling last week, the DC Circuit Court of Appeals agreed with FEA, the FLRA dissenter member, and the ALJ that DoDEA's prior excuses and explanations did not equate to the Agency stating it would not continue its efforts. Such notice from DoDEA only came in 2015 and since FEA filed its ULP within 6 months of that notice, the FLRA was wrong to rule it untimely.

This is a major victory in the fight to reduce payroll problems. If our teachers fully understand what is in each paycheck, they can more easily determine if they are being underpaid or overpaid. They can bring problems to the attention of DoDEA before those problems compound. Properly implemented, the Smart LES would greatly reduce pay grievances.

The best example is Post Allowance: In a recent improvement to the LES, it now lists the number of dependents and location in the "Remarks" section. This enabled scores of teachers to realize they were being paid at the wrong Post Allowance rates.

Another example is LQA: In response to a recon, employees presently receive "mystery pay" if DoDEA determines they have been underpaid. If there is an overpayment, they receive "mystery deductions." There is no explanation of how anything was calculated -- not even what expenses were approved or disapproved.

Unfortunately, the D.C. Court declined to retain jurisdiction over the case. It would have been a first if they had. The Court sent the ULP back to the Trump-appointed FLRA to give them a chance to rule on the merits,

This is the first time in many years the FLRA has been reversed. It is hard to predict what the FLRA will do in response. They could appeal to the Supreme Court. They could simply look for another pretext to throw out the ULP and further prevent development of the Smart LES. But they know the Court of Appeals is on notice. They know that FEA can appeal again if necessary.

The battle is far from over: But, thanks to this legal victory, spearheaded by FEA UniServ Attorney Bill Freeman, the fight will continue.

As we have always done, FEA will utilize all possible legal avenues to fight for better, more accurate pay, and to force DoDEA and the federal government to abide by all legal rulings. The fact that we continue to do so is one of the major reasons why management is seeking to weaken Association rights through the imposition of harmful contracts, among other negative practices.

FEA will not be deterred. Whatever obstacles DoDEA and the current administration place in our way, we will continue to fight on this and countless other issues for as long as our members support us in doing so.