By Bill Bransford
What you should know about appealing a furlough
May 14th, 2012 | Uncategorized
This article originally was first posted on this blog on May 14, 2012. We are re-posting it because of its renewed relevance to the current sequester cuts and expected furloughs.
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 – Discrimination in a Promotion
May 21st, 2013 | 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 does a complainant need to prove in order to prevail in a case where he claims discrimination in a promotion?
A:
There is no concrete answer to this question. You must prove by a preponderance of the evidence that the illegal discrimination was the reason for the action that is part of your case. How and whether to do this varies from case to case and often depends on credibility of witnesses and the outrageousness of the actions experienced by a complainant.
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 – Leave of Absence Violation?
May 21st, 2013 | 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:
While on a leave of absence for a week, my return date changed. After informing my boss, I received an email that I found overstepping and threatening, basically questioning why my doctor would be okay with me returning to work one day, then putting me out for an additional few weeks the next. Is his response legal?
A:
I am not sure I understand your question. If you are out on sick leave, management has the right to seek medical evidence to show you are medically incapacitated for an absence of more than three days.
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 – Unfair Hiring Practice?
May 20th, 2013 | 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 was offered and accepted a permanent job promotion to a GS-12 position at my workforce. Prior to the start date of the new job, I called HR to ask where and who I was to report to.
HR then informed me that the job offer was postponed and that I would be notified of the new start date for the job and to contact my workplace administration office if I had any questions. I emailed my workplace administration personnel regarding the decision to postpone the job and was told that there were manning issues and I would be notified when a decision was made.
Although HR assured me that they would keep me informed and let me know about the decision, I did not receive any subsequent phone calls or emails but decided to be patient and wait for a response. No response was ever provided.
Much later, I found out that another person was hired for the job. The individual who was hired is of a different gender, race and age.
Is the situation described considered an unfair hiring practice and can I file a grievance with the Merit Systems Protection Board, EEO or any other program that prohibits unfair hiring practices based on what happened?
A:
You do not describe a case that is appealable to the Merit Systems Protection Board. You could file an EEO complaint, but just being a member of a different protected group is not enough. You have to prove the position was filled with a discriminatory motive.
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 – Harassed by Inspector General
May 20th, 2013 | 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 believe I am being harassed by an Inspector General and I am not sure how to fight this. I am a Commissioner on a Federal Commission. My non-profit is not in the position to take on the federal government and I have been reminded by many that this IG’s actions could be a career buster for me. What should I do?
A:
In your position, you have an obligation to cooperate with an Inspector General. There is no way to fight it, but being prepared and truthful in responses are good starting places.
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 – Advertising Temporary Positions
May 17th, 2013 | 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:
Does an agency have to advertise a temporary position within a division or can they simply select an employee of their choosing?
A:
A temporary position can be filled with an employee of management’s choosing. If the position is a temporary promotion, it must be completed after 120 days.
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 – Management-Directed Reassignments
May 17th, 2013 | 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:
Can a management-directed reassignment be initiated for a contract specialist to a contracting officer position? A contracting officer is required to be warranted, which allows them to obligate the government contractually. In addition, the contracting officer can be held criminally responsible for their actions in performance of their duties by virtue of their contractual authority. Also, the position would take them from a non-supervisory position to a supervisory position.
A:
The management-directed reassignment can occur assuming all the other requirements can be met.
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 – Libel?
May 16th, 2013 | 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:
Should I hire a private lawyer to defend myself against what I believe is libel from a union official? I am a manager, GS-14, and have received a copy of an email from this individual sent to the highest levels of management within my agency, accusing me of outrageously unprofessional behavior.
A:
Libel or slander are common law torts that normally can be the subject of a lawsuit. However, federal employees, acting within the scope of their employment, are immune from suit for common law torts. Your union official most likely fits into this category.
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 – Oversight of OPM’s Retirement Program
May 16th, 2013 | 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:
Why doesn’t the Office of Personnel Management answer any inquiries from me or my Senator or Congressman? I have been waiting more than 12 months for OPM to correct my disability retirement. Now I am in a financial disaster because OPM has taken an unreasonable amount of time to correct my disability retirement after Social Security stopped my benefits. Why is OPM exempt from any oversight or scrutiny? I guess it is time to go to the press…
A:
You are certainly free to go to the press. The Office of Personnel Management is under tremendous scrutiny for its administration of the retirement program. I don’t know why they don’t answer your inquiries or correct your situation.
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 – Am I Entitled to a Temporary Promotion?
May 13th, 2013 | 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 current GS-14 Supervisory IT Specialist and recently served as the acting Section Chief (GS-15) for 180 days when my boss left our branch for another position. My Branch Chief says I am not entitled to a temporary raise for the vacant position due to a lack of funding. Am I entitled to a temporary promotion for the period that I acted in the vacant position role? They eventually moved another GS-15 into the vacant position from another branch.
A:
You are entitled to a temporary promotion with the higher pay if you are actually promoted. Temporary promotions without competition are time limited. If you were just detailed, you are not entitled to the higher pay.
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 Upgrade Request
May 13th, 2013 | 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:
Another administrative officer in my agency has far less responsibilities than I have and is a GS-11/12. I am a GS-09. We perform essentially the same functions but my responsibilities are considerably more complex and expansive. My supervisor and his supervisor submitted an upgrade request but our in-house classifier said that my position should remain a 9. What steps can I take to challenge this?
A:
You can file a classification appeal with the Office of Personnel Management, but the standards for prevailing there are pretty tough.
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.