-National APWU Files Grievance Over ‘Interactive Voice Response’ (CALL-IN) System-The APWU has initiated a national-level dispute (pdf 1.5mb) over the Postal Service’s unilateral implementation of the Interactive Voice Recognition (IVR) system to handle unscheduled leave requests. Below is a html version of the Step 4 dispute
February 17, 2004
Mr. Anthony J. Vegliante
Vice President, Labor Relations
U.S. Postal Service, Room 9100
475 L'Enfant Plaza
Washington, D.C. 20260
Re: APWU No. HQTG20044, Cert No. 70012510000411584759
Dear Mr. Vegliante:
In accordance with the provisions of Article 15, Section 2 and 4, of the Collective Bargaining Agreement, the American Postal Workers Union is initiating a Step 4 dispute concerning the Postal Service’s unilateral implementation of an Interactive Voice Recognition (IVR) System/enterprise Resource Management System (eRIVIS) and related leave policies and practices affecting wages, hours and other terms and conditions of employment.
The APWU was informed by the Postal Service of its intent to implement an Interactive Voice Recognition (IVR) system. We were informed that with a new eRMS speech application, when employees are unable to work due to unexpected illness/injury, personal emergency, or community disaster, employees will make their unscheduled leave request using the IVR system. The IVR will then update the RMD/eRMS with the employee’s leave request information.
The APWU contends that the implementation and/or application of the IYR/eRMS Speech Application system (or any similar record system) may not conflict with, alter or change, or violate existing rules, regulations, the National Agreement, law, local memorandums of understanding and agreements, past practices or grievance-arbitration settlements and awards.
The APWU raised several concerns regarding IVR/eRMS and requested that before implementation that we be provided access to the IVR/eRMS system. We were told that the system was not available in that a usability test was planned in mid-December at a testing site in Boston. To date, the Postal Service has not provided the APWU access to the IVR system. However, the Postal Service has decided to move forward with its plans to implement the IVR system. In addition, to the APWU’s request for access to the IVR system prior to implementation, we request that the APWU be supplied with all documentation related to the usability test that took placed at the Boston testing site. The requested documentation and access to JVR are necessary for collective bargaining, the administration and interpretation of the collective bargaining agreement between the parties, including in determining whether to continue the processing of this dispute.
Notwithstanding our pending information requests, upon review of the January 21, 2004, response from the Postal Service addressing some of the concerns raised by the APWU, there still remain several disagreements between the parties over the IVR system and related leave policies and practices affecting wages, hours and other terms and conditions of employment. The APWU position is, but is not limited to, the following: that the implementation and/or application of the IVR/eRMS (or any similar record system) is in conflict with, alters or changes, and violates existing rules, regulations, the National Agreement, law, local memorandums of understanding and agreements, past practices or grievance-arbitration settlements and awards. In addition, the Postal Service actions also violate the applicable terms of the March 28, 2003, National Pre-arbitration Settlement (hereinafter referred to as “RMD/eRMS Settlement) involving the dispute over the implementation of the Postal Service Resource Management Database (RMD), its web-based enterprise Resource Management System (eRMS), and the application of current leave-related rules and polices, including the Family and Medical Leave Act.
Accessibility to Employees ‘ Social Security Numbers
For example, it is the APWU position that the IVR/eRMS system permits unauthorized non-postal personnel access to employees’ social security numbers. We believe that providing access to employees’ social security numbers to unauthorized individuals/companies violates the privacy rights of postal employees. Under existing rules and regulations there are a limited number of individuals and/or agencies that are authorized to have access to employees’ social security numbers under limited circumstances. Employees working at call centers are not authorized individuals and “call centers” are not authorized agencies’ permitted to have access to postal employees’ social security numbers.
Moreover, the Postal Service action is contrary to what the APWU has been informed by postal officials responsible for safeguarding postal employee privacy and ensuring that restricted information covered by the Privacy Act does not become accessible to unauthorized individuals. At the parties’ June 10, 2003, meeting regarding proposed changes to the Administrative Support Manual (ASM) and the draft of Handbook AS-353, we were informed that eventually social security numbers would not be use or be accessible on postal systems. Instead, the eight-digit “Employee ID Number” will be utilized and phased into existing systems, and future systems would utilize “Employees ID numbers,” and that on an as-needed basis consistent with the Privacy Act and applicable rules and regulations regarding Privacy Act System of records, authorized postal officials would have access to employees social security numbers through their “Employee ID numbers” (for example for finance purposes).
We believe that the Postal Service action implementing the IVR/eRMS system, utilizing employees’ social security numbers is contrary to and inconsistent with its obligations under to the Privacy Act. Therefore, the Postal Service should cease and desist from utilizing the IVR system (or any similar system) that includes access to employees’ social security numbers. The APWU contends that the IVR (or any similar system) should not be implemented until such time that the eight digit “Employee ID number” can be utilized instead of employees’ social security numbers.
Notification of Absence Requirements
In addition, we believe that the IVR/eRMS system will prevent and deny employees’ “notification of absence” (due to an emergency, injury or illness, including FMLA absences) from being properly recorded. For example, the IVR/eRMS system requires employees when calling in to respond to and/or provide answers to information beyond what is required under existing leave-related rules, polices and regulations. Moreover, when calling in, the failure of an employee to respond to a detailed script of questions, possible answers, and other messages, will result in the IVR/eRMS system not accepting, confirming, or providing an employee a confirmation number; therefore not recording the employee’s notification of absence. Notwithstanding the basic information that is required pursuant to existing regulations that govern call-ins or notification of absence, and regardless of what limited information is provided by employees when calling in to notify management of their absence, it is improper not to accept and record such employees’ “notification of absence.” We believe that this practice is unlawful, in that it interferes with, restrains, or denies an employee the exercise of or the attempt to exercise rights provided under the collective bargaining agreement.
Moreover, the APWU contends that if the IVR/eRMS (or any similar system) is to be utilized it must be modified to permit employees to end the call at any time, record whatever information is provided by the employee, and provide a confirmation number confirming that the employee’ notification of absence was recorded.
In addition, there is a current dispute between the parties that is pending a national-level decision that encompass the parties’ disagreements related to employees’ “notification of absence” requirements and the application of RMD/eRMS. The pending dispute concerns the type of questions supervisors impose on employees when calling in or notifying management of their absence that go beyond what is required, and then records the information in eRMS. In this instant dispute, the Postal Service has simply replaced the supervisor with the I\TRIeRMS speech application, requiring employees to provide information that still goes beyond what is required when calling in. However, we believe the IVR/eRTVIS system goes one step further in that it does not permit employees to have their call recorded unless they respond to questions, possible answers or messages that are not required when an employee calls in under existing rules and regulations.
Existing Rules and Regulations
Under existing rules and regulations, for unexpected absences (emergencies, illness or injury), an employee has to notify appropriate postal authorities at his or her work location and/or facility, and upon returning to duty submit a request for leave on Form 3971, along with medical or other evidence if required (subject to the approval of the employee’s immediate supervisor). Section 5 13.332 of the ELM provides, “in situations such as unexpected illness or injury, employees have to notify appropriate postal officials of their illness or injury and of the expected duration of the absence. Consistent with Section 513.332 of the ELM, an employee has to state (make clear) that he or she will be absent “due to illness or injury” at the time of call in or request.
Call-ins or requests for leave are recorded on Form 3971 by an APWU bargaining unit employee (for example an office clerk) or by management (the practice varies from facility to facility depending on local past practices or agreements). However, answering the phone and recording call-ins for leave is a bargaining unit employee duty and responsibility. Upon review of Form 3971, the supervisor signs his or her signature and the date notified. After the employee returns to work, his or her leave request (regardless of the type of leave or absence) is subject to the supervisor’s approval or disapproval.
The individual taking the call or request records, on Form 3971, such information as the employee’s name, pay location, social security number (last four digits), scheduled reporting time, non-scheduled days, and expected duration of the absence. Under the “remarks” section of Form 3971, the individual taking the call records that the employee is calling in “due to illness or injury” and “the expected duration of the absence.”
It should be noted that if an employee is calling in due to a job-related injury, it would be appropriate to enter into the Remarks” section “job-related illness or injury.” If an employee calls in for Family Medical Leave Act (FMLA) leave, it would be appropriate to enter into the “Remarks” section of Form 3971 “FMLA leave” or “due to an FMLA condition.” However, pursuant to the FMLA, when the need for leave is not foreseeable, an employee should give notice to the Postal Service as soon as practicable by telephone, fax or other electronic means. The employee or employee’s spokesperson need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. However, the employee or spokesperson will be expected to provide more information that would enable the Postal Service to determine if the leave is because of a serious health condition.
In situations where it is necessary for the Postal Service to inquire further to determine if the leave is because of a serious health condition, examples of appropriate information concerning such medical condition that would be sufficient to enable the Postal Service to make a determination would be (I) due to inpatient hospital care; (2) due to pregnancy or prenatal care; (3) due chronic condition: (4) due to a permanent or long term condition requiring supervision; (5) due to condition requiring treatments for restorative surgery; (5) due to condition in the absence of medical intervention or treatment may result in incapacitation of more than 3 days; (6) to care for a spouse, parent, son or daughter. If the employee fails to provide such information, the leave may not be protected under the FMLA. But, nevertheless, the employee notification of absence is recorded The Postal Service would therefore provide the employee notification (Publication 71 and related information) of the employer expectations and obligations and the consequences of a failure to meet these obligations, including medical certification to support the need for such leave.
Consistent with part 5 13.361 of the ELM, an employee’s statement explaining that an absence is due to “illness or injury” is acceptable for periods of absences of 3 days or less. However, 513.361 of the ELM permits the Postal Service to require medical documentation or other acceptable evidence of incapacity for work when an employee is either on “restricted sick leave” or when the supervisor deems documentation desirable for the protection of the interest of the Postal Service. The parties agree that a supervisor’s determination that medical documentation or other acceptable evidence of incapacitation is desirable for the protection of the interest of the Postal Service must be made on a case-by-case basis and may not be arbitrary, capricious, or unreasonable.
For absences for periods of 4 days or more, Section 513.362 of the ELM permits the Postal Service to require employees to submit medical documentation or other acceptable evidence of incapacity for work. However, pursuant to Section 513.364 of the ELM, supervisors may accept substantiation other than medical documentation if they believe it supports approval of the sick leave request.
Below are other examples of disagreements between the parties regarding the implementation and application of the IVR/eRMS systems and related leave rules and policies.
Order of Script
The IVR/eRMS Speech Application script makes reference to the “Call Center” following a similar script as 1VR, but in a different order. To date, the APWU has not been provided the Call Center script. Moreover, we believe that in order to be consistent with existing rules and policies, the opportunity to respond to “Illness — Leave request,” should come before
“Illness — FMLA determination.” In most cases (for example, employees calling in due to “illness or injury” for 3 days or less), it is not necessary for an employee to go to “FMLA — determination” in order to provide notification of absence.
It is not clear under what circumstances employees with an existing FMLA condition are flagged through eRMS for recertification (submission of additional medical information) in the event such employees should call in due to that condition. It’s also not clear whether the eRMS application accommodates those circumstances where an employee is not required to provide additional information (recertification). For example, once an employee provides certification for intermittent FMLA absence, no further medical certification may be required for such absence due to the already certified condition. We believe that the eRMS does not provide for such exceptions. Moreover, the parties have a pending dispute that encompasses whether the employer can require additional medical evidence or recertification regarding an employee who already provided certification for intermittent FMLA absences.
FMLA Serious Health Conditions
We believe that the portion of the script under “Illness — FMLA determination” that asks whether the employee is requesting leave for one of several FMLA conditions should also include “due to a chronic condition, to care for a spouse, parent, son or daughter, and nonchronic multiple treatment for restorative surgery.”
WH-380 or Other Forms
We believe that the portion of the script that refers to Publication 71 being mailed out, along with DOL form WH-380 should be consistent with the parties’ mutual agreement that an employee submission of certification using in any form or format which contains the required information is acceptable.
Annual or Sick leave in conjunction with LWOP
Under existing rules and regulations when an employee has insufficient sick leave, at the employee’s option, such employee must be granted annual leave or leave without pay (LWOP). Moreover, an employee may use annual and sick leave in conjunction with LWOP consistent with applicable leave regulations. An employee need not exhaust annual or sick leave prior to requesting LWOP. it is not clear whether the eRMS application accommodates employees’ rights to request annual or sick leave in conjunction with LWOP and the respective number of hours requested of each type of leave. We believe that eRMS does not accommodate such requests.
Submission of Medical Evidence to Protect USPS Interest
Pursuant to 5 13.361 of the ELM the Postal Service is permitted to require medical documentation or other acceptable evidence of incapacity for work when an employee is either on “restricted sick leave” or when the supervisor deems documentation desirable for the protection of the interest of the Postal Service. However, there must be justification on a caseby-case basis when determining whether medical evidence is desirable for the protection of the interest of the Postal Service and such requirement may not be arbitrary, capricious, or unreasonable. It is not clear how a supervisor through the eRMS application or system makes such a determination and under what circumstances an employee is flagged, requiring the submission of medical documentation on the next occasion such employee calls in.
Return to Duty Medical Requirement
Portion of the eRMS script automatically requires employees whose absences are due to hospitalization, mental or nervous conditions, diabetes or seizure disorders, cardiovascular diseases, communicable or contagious disease, or for more than 21 days, to provide a detailed medical report, sufficient to make a determination that they can return to work without hazard to self or others, in order to return to work. Notwithstanding the fact that the parties have a pending dispute regarding the USPS return to duty medical requirements, we also contend that the Postal Service must have justification to require such medical information on the basis that it must be job related and a business necessity. Moreover, we contend that the Postal Service return-to-duty requirement may be unlawful and violate employees’ rights as provided by the Rehabilitation Act.
Emergencies vs. Personal Emergencies
In accordance with existing leave rules, regulations; and the collective bargaining agreement, annual leave is provided to employees for rest, for recreation, and for personal and emergency purposes. An exception to the advance approval requirement for annual leave is made for emergencies. The Postal Service is permitted to require an employee to submit documentation upon returning to duty, explaining the reason for the emergency leave request, subject to the supervisor’s approval. However, contrary to and inconsistent with existing leave rules, regulations and the collective bargaining agreement, a portion of the eRMS script
describes or refers to emergencies as “Personal Emergencies.” It is not clear for what purposes the Postal Service has attempted to unilaterally define “emergency” as “personal emergency.” However, the eRMS script should be modified to delete the word “Personal” (and any related inference) and simply refer to the word “emergency,” consistent with applicable rules and regulations, and the collective bargaining agreement.
Portions of the eRMS script also make reference to “Community Disaster,” Moreover, this language has been changed to reflect the changes to ELM Section 519. The parties have a pending dispute over the Postal Service failure to provide the APWU proper notification as required pursuant to Article 19 of the collective bargaining agreement. It is not clear what the Postal Service’s intent or purpose is in unilaterally revising 519 of the ELM, and its impact on bargaining unit employees.
Article 15 provides that within thirty (30) days of the initiation of a dispute the parties shall meet in an effort to define the precise issues involved, develop all necessary facts, and reach agreement. It is requested that you or your designee contact my office to discuss this dispute at a mutually agreed upon date and time.
Greg Bell, Director Industrial Relations
APWU #: FIQTG20044 Case Officer: GregBell
Dispute Date: 2/17/2004 ContractArticle(s): 10, Leave Regulations ELM 510;
cc: Resident Officers File