By Bill Bransford
What you should know about appealing a furlough
May 14th, 2012 | Uncategorized
The ever-present threat for federal employees is the furlough.
It is there when there is a budget showdown over a continuing resolution, and last summer, groups of Federal Aviation Administration employees were furloughed because Congress could not agree on legislation.
In most cases, Congress approves back pay and everyone goes home happy, and you look back on it and say it was not such a big deal. But there is no guarantee that Congress will continue to approve back pay, and some agencies have threatened periodic furloughs for groups of employees in order to meet budget shortfalls.
What if you are furloughed and you do not think you will receive back pay? Do you have any rights? If you receive no back pay for your furlough and those so-called essential workers are paid, can you challenge the fairness of designating you as nonessential if you did not get paid?
Congress has defined a furlough as being in a nonduty and nonpay status for 30 days or fewer because of a lack of work or funds, or for other nondisciplinary reasons. A furlough can only be ordered to promote the efficiency of the service, and you even have an appeal right to the Merit Systems Protection Board if you are subjected to a furlough. In fact, a furlough is considered an adverse action.
There are two circumstances when furlough appeal rights might really make a difference. The first is when a furlough is used to hide a true motive of a disciplinary action. This is probably a rare occurrence, but if someone is furloughed and he or she believes the agency is claiming there is a lack of work and thus a furlough is necessary, the employee could appeal and perhaps prevail if evidence exists that the real reason for the furlough was personal animus.
The second circumstance when a furlough appeal is meaningful is when the issue is about the fairness of the selection process for those subjected to the furlough. An appeal could be filed and evidence showing a lack of fairness in general could negate the furlough.
Furloughs of longer than 30 days are considered reductions-in-force (RIFs) and are appealable to MSPB under the RIF rules, not the furlough adverse action rules. This could present a confusing circumstance, particularly if some employees are selected for a furlough and others are not. Perhaps that is one reason furloughs are rarely used except as a result of congressional action shutting down the government.
The bottom line on furloughs is that an agency that furloughs its employees for clear-cut reasons related to a lack of work or funds and does not discriminate or treat its employees unfairly will most likely be upheld by MSPB. Because of this, there are few furloughs and fewer furlough appeals.
A couple of variations on this theme could occur. Recently, many state and local public employees had furloughs of a pay period or a month. Some federal agencies have considered this option because of budget shortfalls. This is a legitimate reason for a furlough as long as all employees in the affected part of the agency are furloughed. When an agency starts to pick winners and losers with some employees furloughed and others considered essential, it stands a chance of having the furlough overturned.
An employee is supposed to receive 30 days’ notice before a furlough. Sometimes this is not possible, usually because of Capitol Hill standoffs. The Office of Personnel Management allows for emergency notice if the advance notice cannot be met. If you are furloughed and you think it is unfair, you have 30 days from the start of the furlough to appeal to MSPB.
The complexity of figuring out the fairness of those who go to work in a government shutdown and those who stay home is difficult. Perhaps this is one reason that, to date, Congress has always decided to pay back pay for furloughs caused by failure to approve a budget or a continuing resolution.
Q & A Session – Getting Hired for New Job While Under PIP
May 11th, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I am a federal employee with over 20 years of service. I have always received at least a satisfactory appraisal and have numerous recent performance awards. A year ago, I started a new federal job and, after seven months, I received an unacceptable appraisal with a zero rating, and I was placed on a 90-day PIP. I am desperately trying to get out of a very bad job situation.
If a potential employer does not ask for a copy of the appraisal or does not ask if it was satisfactory during the application or interview process and offers me a job, can they withdraw the offer or terminate me once they receive a copy of my official personnel folder and find the unsatisfactory appraisal in it?
A:
They can withdraw the offer before you start. Once you start, assuming you are not required to complete a probationary or trial period, you may not be terminated, unless you are less than honest during the application process.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q & A Session – LQA Case
May 10th, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I am a civil servant working in Yokosuka, Japan. Earlier this year, I received a decision on the Living Quarters Allowance (LQA) Claim that I filed with the Office of Personnel Management nearly one year prior. My claim was declined, and, after reviewing the decision, I immediately saw several issues with the information presented by the signatory.
For a while, I was reassured that everything was going to be okay and was verbally told that I was approved. LQA is currently about $64,000 a year per person, with family, in the Yokosuka area.
I also emailed the OPM Inspector General with concerns I had with several statements in the Decision, but I have yet to receive a reply.
What should I do?
A:
Several LQA claims have been successfully litigated at the U.S. Court of Federal Claims. You have a six year statute of limitation (starting in 2009) and should obtain legal representation, particular considering the amount of money in dispute.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q & A Session – Travel Compensatory Time Off for Union Activities
May 9th, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
As a Union officer who is asked to travel by managers at my agency to attend various partnership and pre-decisional forums, I have been told repeatedly that I am not eligible for travel compensatory time off. When I question why, I am referred to 5 CFR 550.1403, which defines travel as “travel for work purposes that is approved by an authorized agency official or otherwise authorized under agency policies. Time spent traveling in connection with union activities is excluded.” However, there is no definition of “union activities” in the CFR. Is a labor-management forum, formed at the request of the agency, really a “union activity”? Aren’t labor-management forums and other PDI activities, which are intended to improve the efficiency of the agency, of any benefit to the agency?
A:
I suggest that you have your union raise this at the agency or national forum level. At a minimum, you should not have to personally pay for travel.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q & A Session – Denied Promotion
May 8th, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I work for a federal agency within a branch that is having many personnel issues. Since I have been in this branch, all of the females who have worked on this particular team have always been assigned loads which are heavier than the male associates’. The female associates are always asked to plan the Christmas and retirement parties (which I believe is discriminative), despite the heavier loads.
When I first came to the department, there was a GS-11 female who had the majority of all of the complex tasks. When I was brought in as a GS-12, I was made her backup. She left a few months after I came because she was upset by the fact that she was passed over for the promotion I received. She had the knowledge and skills to receive the promotion, but was ultimately looked over. Months later, a male was hired to replace her. He came on as a GS-11, but about two weeks later was promoted to a GS-12 because we had a GS-12 position open. Since the GS-12 guy has been on the team, he has never been assigned a GS-12 workload.
Due to my frustrations and my increasingly overwhelming workload, I feel burned out and abused and have voiced my concerns to my supervisor. I feel he has grown intolerant of me and, as a result, passed me over for a promotion I was well qualified for. What should I do?
A:
If you believe you are being treated poorly because of your gender, your complaint, at least in theory, can be handled in the EEO system. Keep in mind that ultimately you must prove gender discrimination, which may be difficult. Fewer than 3% of EEOC complaints filed in federal agencies result in a finding of discrimination. Many more, however, are settled, and yours could be as well. Mediation, which can be offered as part of the EEO process, might get you your reassignment.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q & A Session – Appropriate Venue for Exposing Unethical Behavior
May 7th, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
What is the most appropriate venue for exposing unethical practices and illegal behavior by management in a federal agency, particularly when it appears to be wide-spread and ultimately increases agency costs for arbitration and other legal liabilities?
A:
Every once in a while an agency official’s unethical and illegal behavior is confirmed and exposed by an Inspector General’s office. This is the best venue for exposing what you have described and, at least in theory, could lead to disciplinary action.
Unfortunately, there is no other effective remedy and even a favorable IG report will not give damages to you. The administrator’s action, even if baseless and malicious, appear to be within the scope of employment and thus immune from a lawsuit.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q & A Session – Issues Following Receipt of an LOR
May 4th, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I am a Chief Steward and the federal employees I represent are in a Collective Bargaining Agreement. I am looking for answers to questions I have regarding an employee who has provided all the necessary documentation after taking unscheduled leave but who was still issued a letter of requirement (LOR).
First, is there a specified time limit to show a pattern? Can two days a week constitute a pattern? Also, does the supervisor have to give advance notice of any adverse action to the union and the employee represented by one, such as the LOR?
Does the fact that the employee is a reservist and that some of the leave in question is either before or after his required duty play any factor? Also, is the LOR rendered moot since the leave in question was approved by the supervisor?
The employee also has an Unfair Labor Practice case for another issue, so could this be considered reprisal? Finally, the supervisor informed me that he is performing an investigation on other issues. I thought this was not authorized; is this correct?
A:
As to your first two questions, a letter of requirement, or a leave restriction letter, is not an adverse action. It is a notice to the employee of change in the usual method of requesting sick leave. For example, an employee might be, and often is, required to furnish a doctor’s explanation for an unscheduled absence. According to OPM regulations, no advance notice is required. In the absence of a collective bargaining agreement to the contrary, a pattern of absences could be two.
Many CBAs bargain this issue and specify “how many” constitutes a pattern and whether advance notice is required before a LOR is received. In the absence of precise language, an arbitrator might look at past practices to determine the CBAs meaning, particularly for a word like “pattern.”
As to your last four questions, I don’t see how the reservist duty would affect an LOR. Approved leave does not moot an LOR, which usually states how long it is in effect. Whether an LOR for a ULP is reprisal is for the Federal Labor Relations Authority to decide and very much depends on the surrounding circumstances. There is nothing in the law that prohibits a supervisor from investigating any workplace issue, except that criminal matters are required to be forwarded to the IG.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q & A Session – Appeal Processing Time at EEOC
May 3rd, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I sent in my appeal on my EEO case 14 months ago. The Office of Federal Operations at the EEOC assigned the case a docket number, but it is still waiting to be processed. Is it true that once a docket number is assigned, they will, in fact dispose of it?
A:
Yes. Eventually you will receive a response or a decision.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q & A Session – Challenging the Elimination of FERS Supplement
May 2nd, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
Will the unions have any grounds for challenging the elimination of the FERS supplement? With my 23 years of service under the assumption of a FERS supplement, shouldn’t I be entitled to 23/30 of what I would have received before they started monkeying around with the law?
A:
No. FERS is a congressionally passed statute. It can be totally changed or repealed, although it is not likely to happen except in the around-the-edges manner being discussed in Congress. Your union’s continued effective lobbying in Congress is the best and only recourse.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q & A Session – Reasonable Accommodations for Work-at-Home Employees
May 1st, 2012 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
If an agency has a work-at-home policy, are they required to provide an employee with a disability the same accommodation they must provide in the agency’s main site? For example, an employee who requires voice recognition software due to visual disability at the main site.
A:
Providing an accommodation to a disabled employee is never a simple yes or no answer. Instead, it is a part of a collaborative process between agency management and the disabled employee. Your agency has a process for handling requests for accommodation for the disabled. I suggest you review and follow that policy and get an answer to your question at the agency. If you are dissatisfied, you may file an EEO complaint within 45 days of the accommodation decision.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.