AFSA Reminds Employees of Weingarten Rights

Cherub With Open Book On John Donnelly's Bronz...Image by takomabibelot via Flickr

The latest communication from AFSA reminds employees of their right to union representation. Relevant section reprinted below:

AFSA reminds you of your right to AFSA representation (“Weingarten right”), and strongly encourages you to invoke that right any time you are being interviewed by OIG, DS, the RSO or your supervisor about any matter which you reasonably believe could result in a proposal for disciplinary action against you. See 2 FAM 4322.3(h). In this situation, the agency does not have to inform you of your Weingarten right – you must invoke it on your own. You are permitted a reasonable amount of time to obtain AFSA representation and it is an Unfair Labor Practice if the agency blocks your right to representation by insisting the interview go forward without AFSA.

In addition to your Weingarten right, under 3 FAM 4322.3(e) and (i), you have the right to know whether you are the subject of an investigation or just a witness and, whether the interview is voluntary or compelled, and the principal purposes for which the information is intended to be used. If you are told the interview is voluntary, this means it could lead to criminal charges against you. Therefore, it is doubly important that you not to agree to the interview in this situation without first talking to one of AFSA’s attorneys.

AFSA is aware of several recent cases in which the agency representative did not advise the employee of his or her rights, and later argued that the interview was not an “administrative inquiry” under 3 FAM 4322.3 but merely a “counseling session” between a supervisor and a subordinate employee. In a recent Grievance Board decision, the Board found that a meeting between a employee and his supervisor to “uncover facts that may be used as a basis for discipline” was not merely an informal counseling session but an administrative inquiry and the agency erred by not advising the employee of his rights.

Your Weingarten Rights

During an investigatory interview, the Supreme Court ruled that the following rules apply:

The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

After the employee makes the request, the employer must choose from among three options. The Employer must either: grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; deny the request and end the interview immediately; or give the employee a choice of having the interview without representation or ending the interview.

If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

Colton v. Clinton: Expeditionary Diplomat Booted Off Career Ladder, Too Old

Giant Longevity Peach BunsImage by Sifu Renka via Flickr

Mandatory Age Retirement Goes to Court, Again

On September 18 Sutherland Asbill & Brennan LLP, together with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, filed a complaint in the U.S. District Court for the District of Columbia against Hillary Rodham Clinton in her capacity as Secretary of State. The case was filed on behalf of Dr. Elizabeth O. Colton, a 64-year-old Foreign Service officer whom the Department of State has “subjected to discrimination by denying her the opportunity to serve at certain posts simply because of her age.” Dr. Colton is represented by Sutherland Litigation Partners Thomas R. Bundy III and Lewis S. Wiener and Litigation Associate Christopher W. Hammond of the firm’s Washington, D.C., office, in conjunction with Susan Huhta of the Washington Lawyers’ Committee.

According to Mr. Bundy, “This case is one of first impression where the Department of State is preventing Foreign Service officers like Dr. Colton from taking certain posts years before they reach the 65-year-old mandatory retirement age for Foreign Service members under the Foreign Service Act.” Mr. Bundy added, “We believe the State Department should stop this unlawful, discriminatory employment practice. The mandatory retirement age itself is unconstitutional, lacking any rational basis, and is based on outdated stereotypes and misinformation.”

“We are confident that the court will finally agree that if presidents, judges, Congress members, civil servants, ambassadors and other political appointees in the State Department are capable of serving our great country well past 65 years of age, then so can your average citizen who is a Foreign Service officer,” said Mr. Bundy. “Dr. Colton’s career is distinguished, and there is no reason a woman of her experience, energy and enthusiasm should be forced to retire when she wants to continue to serve.”

The law firm’s press release states that before joining the Foreign Service, Dr. Colton was the chair of the mass communications department and professor of politics and media at Shenandoah University; served as Jesse Jackson’s press secretary during his 1988 presidential campaign; was an international journalist for Newsweek, ABC News, NBC News, Asiaweek, and Far Eastern Economic Review; and served as a diplomatic correspondent for National Public Radio in D.C. She also worked at the United Nations, in the U.S. Senate as a media adviser to the late Sen. Terry Sanford, and served as a U.S. Peace Corps Volunteer in Africa.

This is of course, not the first time that mandatory age retirement in the Foreign Service was taken to court. In Vance v. Bradley , 440 U.S. 93 (1979), the question put forth before the Supreme Court was whether Section 632 of the Foreign Service Act of 1946 violated the Equal Protection component of the Due Process clause of the Fifth Amendment. The Supremes reversed the lower court’s decision and sided with the government in an 8-1 decision. AFSA, the bargaining agent for the Foreign Service also filed an amicus curiae supporting the government’s position. That was was 30 years ago. About time the mandatory age retirement (MAR) is revisited.

Dr. Colton’s case alleges age discrimination, constitutional and civil rights violation, and retaliation against plaintiff by the State Department. To say that her career was fast-tracked in the State Department would be an understatement – a more appropriate term might be “bullet-trained.” A quick summary of her career below, excerpted from the complaint:

May 2000 – Entered the FS as a PD-coned, FS-05 entry-level Foreign Service Officer

October 2000 – Began a 2-year assignment in Riyadh, Saudi Arabia on a consular/political rotational assignment

November 2001 – Promoted to FS-04

January 2003 – Received Superior Honor Award for political reporting and public outreach

Summer 2003 – Promoted to FS-03

September 2003 – Began an FS-02 stretch assignment as Public Affairs Officer in Algiers, Algeria (one year danger/critical threat assignment)

August 2004 – Began an FS-02 stretch assignment as Public Affairs Officer in Khartoum, Sudan (one year danger/critical threat post)

Fall 2005 – Began an FS-01 two-stretch assignment as Information Officer in Baghdad, Iraq (one year war zone assignment)

Summer 2006 – Superior Honor Award for sustained performance

October 2006 – Promoted to FS-02

November 2006 – Began an FS-01 stretch assignment as Information Officer in Islamabad, Pakistan (one year danger/hardship position)

Summer 2007 – Agreed to stay on another year as Information Officer in Islamabad, Pakistan per personal request of the Ambassador.

June 2008 – Began an FS-01 stretch assignment as Special Assistant to the Bureau of Oceans, Environment and Science, Washington DC.

Received Superior Honor Award (not dated)

November 3, 2008 – Received a “handshake” to be Chief of Pol/Econ Section in Algiers, Algeria

November 20, 2008 – Informed verbally by Deputy DG that “handshake” had been withdrawn; DDG reportedly stated that MAR waiver would not be given.

November 21, 2008 – Received email from NEA boss officially withdrawing “handshake.”

December 12, 2008 – Received Unlimited Medical Clearance for worldwide availability

Heh! Show me a 30-something with the experience and a career trajectory like hers and I’ll buy you coffee I can’t afford.

What really strikes me as I read the Colton complaint is that this Foreign Service officer, except for a one-year assignment in Foggy Bottom has had assignments in nothing but critical and dangerous posts overseas. All but her entry position had been on “stretch” assignments, that is, she was working beyond her rank. She has received Superior Honor Awards for her work in Saudi Arabia, Baghdad, and the OES Bureau. She has also received Meritorious Honor Awards for her work in Algeria, Sudan and Pakistan. And when she wanted to serve out her full retirement tour, she did not ask to go to Paris or Rome or London, she only wanted to go to Algiers!

Algiers? A Foreign Service assignment that has been sitting on the list of the Department’s top most dangerous posts forever!

Holy mother of goat and all her crazy nephews!

It seems to me that if the State Department and the Foreign Service had allowed some flexibility here, this may not even be in court. The Director General of the Foreign Service is given authority to extend the tenure of any FSO subject to mandatory retirement. Given the gap in mid-level staffing in the Service, it can be argued that extending her tour for eight months beyond her 65th birthday would have been in the public interest. But even beyond the public interest, just allowing our diplomats to retire at the completion of their last tour, wherein they turn 65, would have been not only rational but also most human. It would have also allowed for an easier transition with people leaving at the conclusion of their assignments instead of chucking them out the airlock on the dot when they turn 65.

In one case I’ve heard, a unnamed FSO subjected to MAR reportedly related to his/her “career development officer” his/her need for a three-month extension that would have allowed the FSO’s kids to conclude their school term overseas. The FSO was told not to bother requesting a formal extension because the Director General almost never grants a waiver. A great PR move for an agency that touts its “family-friendliness” doesn’t it?

Understandably, when reached at the US Consulate in Karachi, Pakistan Dr. Colton declined to discuss details of this litigation. Karachi, of course, where she is currently posted is another danger/hardship assignment. It must be said that this officer went where the Service needed her. She worked in some of the toughest posts in the Foreign Service since she joined the Service. She did not avoid service in dangerous posts, she simply went and did the job. The leadership at the State Department and Congress have been talking about developing an expeditionary corps, diplomats willing to serve at unaccompanied posts and US missions in war zones and conflict zones.

Well — here is one. Take a good look. She’s female, older, wiser, she knows her craft and she won’t take “no” for an answer. And we’re telling her she can’t go on a full tour at a danger post because she’s too old? Now she had to go to court. Please – help me scratch my brain. tension

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Quickie: Portrait of HRC’s Early Tenure at State

Secretary Clinton Addresses U.S. Embassy Staff...Image by via Flickr

Glenn Kessler
of the Washington Post pens A Team Player Who Stands Apart,” and writes that tension between leading or blending in marks Clinton’s tenure at the State Department (TWP | Saturday, September 19, 2009).

Hillary Clinton has not even reached her first year anniversary as Secretary of State, but with things moving every which way in the global chessboard, I supposed it is tempting to look at her early tenure and see if she is at the top of her game. Excerpts below:

“The portrait that emerges from interviews and from the observation of Clinton’s early tenure is one of an intensely political figure who wants to remain above the fray of day-to-day diplomacy and to work well with her fellow Cabinet members, but who also wants to stand alone from time to time. She has had the self-awareness to know that she is not an expert in diplomacy: One senior aide was assigned to spend the first six months listening to Clinton’s public comments in an effort to discern her foreign policy philosophy.”


“Clinton said her years in the White House, where she watched conflicts among President Bill Clinton’s advisers spill out into the open, have influenced how she operates. “You can disagree with the president, you can argue for different policies, but at the end of the day you have to be part of a team that is there to serve the country and the president who the country elected,” she said. “It may sound very old-fashioned, but that is sort of how I view it.”

About her resource gathering talents:

But if Clinton’s retinue has grated, her skills as a politician and her contacts in Congress and elsewhere have helped her attract accomplished talents and win substantial increases in funding for State in a time of soaring deficits.

About Clinton’s verbal bombs and State’s public affairs:

Some at State have questioned whether Clinton’s proclivity for throwing verbal bombs has undercut her public authority. “When Condi spoke, you knew that was policy,” said one senior State Department official, referring to Clinton’s predecessor, Condoleezza Rice. “When this secretary speaks, you don’t really know.”

“Ironically, the press operation at Clinton’s State Department is so constrained that virtually every public statement issued by its spokesmen must be reviewed by James B. Steinberg, the deputy secretary of state. He said that is an effort to ensure the government speaks with a single, carefully vetted voice.”

Read the whole thing here.

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