Wyatt Employment Law Report

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NLRB Creates the New Division of Legal Counsel

By  Edwin S. Hopson

The National Labor Relations Board recently announced that it had consolidated a number of functions together in the newly-created Division of Legal Counsel at its headquarters.  The new Division is headed by Associate General Counsel Margery E. Lieber.  The three Branches of the Division are: 

  • The Ethics, Employment and Administrative Law Branch which will provide the NLRB with advice and  counsel regarding ethics, labor relations, employment and personnel law, government contracting, and the Federal Tort Claims Act. 
  • The Contempt, Compliance and Special Litigation Branch will provide compliance and contempt advice, and will conduct litigation in connection with external, non-administrative issues such as contempt and compliance proceedings in the federal courts, or outside proceedings that may threaten the NLRB’s jurisdiction or mission. It will also be in charge of protecting the NLRB’s remedial orders in bankruptcy courts and against attachments, garnishments, and liens.
  • The Freedom of Information Act Branch will coordinate the processing of all FOIA requests at the regional office level and handle all FOIA requests directed at headquarters, as well as all FOIA appeals.  Eventually, it is anticipated that all FOIA work will be centralized at headquarters in Washington, D.C.

In addition, the Division of Legal Counsel’s Lead Technology Counsel will provide advice and assistance in connection with e-litigation and e-discovery matters.

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AFGE Sues Obama Administration Over Shutdown Plans

By Edwin S. Hopson

In a press release issued today, the American Federation of Government Employees (AFGE), which represents many federal workers, announced that it had filed a lawsuit in federal court on March 30, 2011, against the Obama Administration seeking information regarding the federal government’s plans for a shutdown.  The union on March 2, 2011, had submitted a Freedom of Information Act request to the Office of Management and Budget for those details but the government did not respond.  Specifically, AFGE seeks all federal government department and agency contingency plans in the event of a shutdown.

 AFGE President John Gage in a letter to U.S. Attorney General Eric Holder, stated: 

 “The specter of a person being compelled to work without pay, under threat of legal sanctions, should have ended in this country over a century and a half ago.  And yet, the federal government is poised to demand that tens of thousands of federal workers report for duty without compensation or be fired for not showing up.  If there is a government shutdown, that is what will happen to ‘essential’ employees, although the government still refuses to provide any details.”

 A shutdown will occur if the Congress fails to pass legislation to fund government operations after April 8, 2011. In that event, AFGE President Gage is nevertheless urging his members to report to work.

The Office of Personnel Management has posted guidance to agencies which states, in part: 

“Federal agencies do not have the authority to pay their employees during a shutdown, regardless of whether the employees are working as ‘excepted’ or furloughed as ‘non-excepted.’ ‘Excepted’ employees will receive pay for hours worked when the Congress passes and the President signs a new appropriation or continuing resolution. Congress will also determine whether ‘non-excepted’ employees will receive pay for the furlough period.”


AFGE President Gage, according to a report published on Politico’s website, threatens to sue the federal government if federal workers are forced to work without pay during a shutdown.  Also according to a report in Politico, the White House has stated that some 800,000 federal employees would be furloughed in the event of a shutdown.