Ask The Lawyer

By Debra Roth

Q&A Session

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Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.

Q:

How should a federal supervisor handle a situation where an employee has voluntarily confessed substance abuse to the supervisor? Should the supervisor send the employee to an employee assistance program (EAP), talk to human relations staff, or report the employee to security staff?

A: Substance Abusing Subordinates

A supervisor who suspects substance abuse, or who has an employee confess substance abuse, has a particular challenge.  First, the supervisor should be aware that current substance abuse, whether it is alcohol or illegal drugs, does not, in and of itself, make the employee disabled.  Thus, the employee is not entitled to special treatment because of their current problem, even if the substance abuse problem is considered an illness.  Also, substance abuse does not excuse or mitigate poor performance.

Second, much of substance abuse concerns illegal drugs.  The supervisor is therefore dealing with potential criminal behavior that could be disqualifying for federal employment, particularly if a security clearance is required for the job in question.

Drug testing, which occurs in some agencies randomly, is certainly an option, but the manager should first check with the General Counsel’s office to make sure it is authorized in your particular circumstances.

Finally, the supervisor with the substance abusing subordinate should immediately notify HR and determine what follow up is necessary.  EAP and security are definite considerations.  Protecting employee confidences or confessions of a problem are secondary to the EAP referral, protecting the employee and others and getting the job done.

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.

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Act quickly when dealing with poor performers

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The underperforming employee is a common personnel issue facing federal managers. When a bad attitude accompanies poor performance, the employee becomes the one everyone wants to avoid, particularly the manager.

These traits usually result in an employee who believes he can “negotiate” what work assignment he’ll do and by when he’ll get it accomplished.

Sometimes, it’s simply passive resistance to work assignments and all kinds of excuses for why the work didn’t get done: “I forgot,” “I didn’t understand what you meant,” “I’m still working on it.”

Sometimes the failure to perform a work assignment is an outright refusal, accompanied by a statement akin to “it’s not in my position description.”

But failure by an employee to regularly and satisfactorily perform his or her job duties can create workplace issues that go beyond the time-consuming managerial task of addressing underperformance.

For example, when a workplace has one employee who has mastered the art of avoiding work assignments, another employee usually has to pick up the task.

Welcome to the beginning of employee morale problems. While your office may have the eager employee who is willing to go the extra distance for the team, the long-term effect of allowing one employee to slack off is the resentment that builds up in other employees.

In the federal workplace, resentment can lead to otherwise productive employees filing complaints about having to do someone else’s job. Those complaints can result in a decision by upper management to order a workplace assessment or review, which invariably backfires on the first-line manager, who has not dealt with the underperforming employee.

Federal employees have individual position descriptions and performance work plans. The tendency in some federal workplaces is to view those documents rigidly as the outer parameters of what is required on the job.

But every position description should include a phrase that requires the employee to perform “other tasks as assigned.” Even in the absence of that language, federal employees are required to perform a task as long as it is not illegal, immoral or a danger to the employee or others — even an assignment that belongs to someone else.

So, the manager should deal early, often and directly with the underperforming subordinate. When the employee fails to follow instructions about when and how to do a particular assignment, communicate the failure directly to the employee, follow up with a brief note to your supervisor file about the incident, and brief HR to determine whether the employee should be counseled, admonished or progressively disciplined.

Yes, disciplinary action. Many federal employees incorrectly believe that performance deficiencies, including failure to perform a job assignment, can be addressed only in the performance appraisal process. The typical disciplinary charge for this type of non-performance is “failure to perform a work assignment” or “failure to follow instructions.” And if the failure to do the work is accompanied by a bad attitude, agencies frequently include a disciplinary charge such as “disrespectful behavior” to address the attitude.

If you suspect an employee isn’t getting the job done because of a drug or alcohol dependency issue or a medical condition, you still have to address the underperformance.

If an employee has a pattern of tardiness, absences and inattention to duties that you believe may be related to drug or alcohol dependency or a medical condition, then report this immediately to your HR staff for assistance in how to address the performance-related issues, and in how to refer the employee to your agency’s Employee Assistance Program.

The employee who slacks off isn’t a new phenomenon. It’s a personnel and management issue in federal and private-sector workforces. It brings with it the challenge for management to get the mission accomplished while still dealing with the poor performer.

Q&A Session

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Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.

Q: I was the respondent in an EEO (Equal Employment Opportunity) discrimination complaint. I gave testimony and provided evidence in my defense. I was not found in any way to have discriminated against anyone. However, I raised some issues about my superior and her mismanagement and her “threat” made to me. I also did not like the way the EEO investigators conducted themselves, though I was not found to have discriminated.

Since the investigation, Ii have been retaliated against by my boss. She issued me a warning memo for events spanning 21 months prior, the most current was 15 months ago. EEO has entertained more complaints against me that are non EEO and I was brought up on disciplinary charges on hearsay. Can I claim retaliation as I did cooperate in an EEO investigation, though I was the respondent?

A: Retaliation in EEO Investigations

The complainant, the subject and any witnesses in an EEO investigation are protected from any retaliatory action for cooperating with an investigation.  In order to prove retaliation, an employee needs to show a causal connection between his or her cooperation with the EEO investigation and the adverse employment action.  One way to establish an inference of retaliation is to show that there was a close period of time between the protected activity (cooperation with the EEO investigation) and the adverse employment action.  Generally, this will be difficult if an adverse action occurred over a year after the protected activity for which an inference of retaliation is being sought.  Previously planned activity by higher management also can not be used to infer retaliation.  In other words, if a letter of admonishment was being prepared or in the planning stages prior to the protected activity, then it will be difficult to show the letter of admonishment was retaliation. 

In sum, to determine whether there has been retaliation, the employee should focus on the facts.  Why did the adverse action occur now?  Why at all?  Why or why not to others in similar situations?  Was previously tolerated behavior suddenly found unacceptable after participation in EEO activity?  These questions go to the ultimate issue of whether the Agency was motivated by the employee’s protected activity when deciding to take the adverse action. 

 

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.

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Q&A Posts

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Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.

Q: In an appeal to the MSPB (Merit Systems Protection Board), can the employee ask for money damages?  That is, if the board decides the employee’s argument(s) prevail, can they award him money in lieu of getting his job back?

A: Remedies Available at the MSPB

If an employee prevails in an MSPB appeal, the MSPB administrative judge has the authority to award a range of remedies designed to make the employee “whole,” that is, to place the employee in the situation he or she would be in if the adverse action had not taken place.  Remedies an administrative judge may award include reinstatement, back pay with interest, reversal of a demotion or an increase in previously reduced pay, restoration of lost benefits, a purging of records of the adverse action, and if the appellant prevails in an EEO claim, compensatory damages of as much as $300,000. 

The MSPB judge’s discretion is related to the job and while the judge can order reinstatement, back pay, lost benefits and attorney’s fees, the judge may not order money compensation in lieu of a return to the job.  Such a result, however, can be obtained through settlement if both the appellant and the agency agree.

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.

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Q&A Session

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Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.

Q: Please let me know what constitutes sick leave abuse.

A: Sick Leave Abuse Explained

Sick leave abuse is a broad and controversial subject that unfortunately is pervasive in the federal workplace.  It occurs when an employee misrepresents that either he or she or a family member have an illness or medical condition that requires the employee to be absent from the workplace on an approved leave status to care for him or herself or the family member.  Typical examples include employees claiming day-long medical appointments or being ill but instead wanting a long weekend, claiming a full day of sick leave when the medical appointment is for only one hour and employees can report back to work, claiming they are unfit to perform their duties due to an illness or impairment when they are not impaired, and substituting annual leave with sick leave for a non-medical absence just because annual leave is exhausted. 

Most managers suspect sick leave abuse only once it becomes a pattern, such as when employees habitually use sick leave for frequent absences, request sick leave near or on work deadlines, or submit sick leave requests near the weekends or to extend pre-scheduled vacations.  In those cases, it is usually best for managers to first monitor the employee’s use of sick leave and give closer scrutiny to the supporting medical documentation (which may be required for more than three days of sick leave).  If the absences continue, the next step is placing the employee on leave restriction with a formal written notice outlining specific time and attendance and leave requirements, including providing medical documentation for every unscheduled absence.

Sick leave abuse is a serious offense and should be addressed head-on by management.  Besides stealing time from the federal government under false pretenses and causing a disruption to the workplace, sick leave abuse sets a bad example for others in the office and can adversely affect morale.  Managers should consult with their human resources office as early as possible and before taking action to ensure that they are following rules and receive advice on how best to address the issue with the employee.   

 

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.

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Q&A Session

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Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.

Q: I have a pending case before the EEOC pertaining to disability discrimination in the Federal Sector.  My understanding is that when the statutory time has elapsed I may pursue my case in Federal District Court.  I have read that under the Rehabilitation Act I may be entitled to have an attorney appointed by the Judge to represent me.  Can you advise me further regarding this entitlement?

A: Pursuing an EEO Case in Federal District Court

Your understanding is right!  If your EEO complaint is pending before an EEOC administrative judge (AJ), you can withdraw your hearing request and file a civil complaint in federal district court after 180 days have passed since the request was filed.  The same applies to appeals of EEOC AJ decisions or final agency decisions (FADs) pending at the EEOC appellate level, known as the Office of Federal Operations.  Once 180 days have expired from the filing of the appeal and no final decision has been issued, you can withdraw the appeal and then file a civil action in the appropriate federal district court.  In either instance, you need to file a written notice with the EEOC (and send a copy to the agency’s representative), and then an order will be issued dismissing your case.  After receipt of that order, you then have 90 days to file in the appropriate federal district court.

Some may ask why go to federal district court if you already chose the EEOC?  Reasons include extricating yourself from long delays and contentious discovery disputes that sometimes occur at the EEOC, compelling the testimony of retirees and contractors not possible at the EEOC, having your case heard by a jury, and the ability to recover attorney’s fees in federal court for age discrimination claims that are not recoverable at the EEOC.

Plaintiffs who file a Rehabilitation Act (or even a Title VII, Age Discrimination Employment Act, or other employment based civil action) case in federal district court are not “entitled” to a court-appointed legal representative.  You can apply for one with the judge, but counsel at no charge are usually only appointed for indigent plaintiffs who are unemployed and have no other source of income or other personal finances.  The 90 day clock for filing the civil action continues while the application is pending or otherwise searching for an attorney.

 

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.

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Q&A Session

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Ask the Lawyer received the following paraphrased question from a reader on a legal matter that may be of interest to the entire audience.

Q: Good evening, I am an SSA employee. I have been on medical leave and exhausted all my annual leave and sick time. My manager has informed me they have no choice but to charge me absent without leave (AWOL). I will submit medical documentation to continue my leave without pay (LWOP), but my question is: Should I go to work on even without my doctors authorization?  I have a pending immediate disability retirement claim at the reconsideration level and a SSA disability claim. I filed for workers comp and my claim was denied. I was issued a reprimand due to my use of the Family and Medical Leave Act (FMLA) — they said I was rude to management, but that is not true. I need help.

A: Sick Leave Gone and Still Sick?  What’s Allowed and What’s Not.

This reader’s question is about employee rights and management obligations when sick leave has been exhausted, annual leave has been used up and the sickness and resulting need to be absent from work continues.

Some agencies will authorize leave without pay in these situations and do expect that to receive it the employee will provide medical documentation.  There are also the options of advanced sick leave, donated sick leave and sick leave banks, but these vary from agency to agency and are not absolute rights.

Essentially, when an employee runs out of sick leave the employee can be put in an AWOL status except as outlined below.  Sometimes, the employee can receive LWOP or advanced sick leave when such benefits are given to other employees in similar circumstances.  The employee may also be entitled to Family Medical Leave for LWOP absences of up to 12 weeks a year for serious illnesses.  To obtain FMLA leave the employee must submit medical documentation and, according to OPM regulations, must submit the FMLA request in advance to the extent practicable and, if not practicable, within two days after return from the absence for which the Family Medical Leave is sought.  As a matter of practice, most agencies will approve LWOP for employees who submit medical documentation supporting the need to be absent while a disability retirement application is pending.  But an agency does not have to do this and can put the employee on an AWOL status unless there is some right or expectation to authorized leave, including LWOP.

Whether an employee goes to work when still sick or disabled should be decided between the employee and the doctor, particularly when working could threaten the employee’s health or the health of others.  The remedy, as this reader points out, is disability retirement if the worker has been a federal employee for at least 18 months and has a disability likely to last at least a year.  When disability retirement is approved by OPM, an annuity payment is made back to the point that an employee went into a non pay status, whether AWOL or LWOP.

 

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.

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