Ask The Lawyer

By Debra Roth

Q&A Session: Flex Time

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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 are the rules and regulations regarding flextime for federal employees?  If a supervisor wishes to flex an employee’s schedule due to events that occur after the normal hours of duty is this legal?

 A:

Go to the Office of Personnel Management’s website (http://www.opm.gov/oca/aws/index.asp#Introduction) to read a detailed explanation of the rules and procedures on flexible work schedules.  The basic answer to the rest of the inquiry is that supervisors can order employees to work outside of their flex schedule, but a grievance can be filed by employees or their union if they believe their supervisor’s decision is unreasonable.

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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Feedback gives context to performance standards

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Anyone can write good performance standards. One does not need to be a good writer or to understand human resources technicalities or the science of performance management to come up with a standard that will pass scrutiny at the Merit Systems Protection Board. But writing standards is only part of the job. The secret to good performance management is what the manager does after the standard is written.

The law requires that performance standards be as objective as practicable. This is important because someone who fails a performance standard can be fired after failure on a performance improvement plan. But what does it mean to be as objective as practicable? This is a concern for most federal jobs that by their very nature require the exercise of subjectivity by the employee and a judgment by the supervisor about whether the employee is meeting a standard. There are few cookie-cutter federal jobs measurable by the number of produced widgets per pay period, and obtaining true objectivity is not only not practicable, it is not possible.

The first step is to consult the employee about what the employee thinks should be in a standard. If the employee is in a bargaining unit, the union should also be consulted. The manager should consider this input and use it when practicable to strengthen the standard. But the manager makes the final call. Once that is done, the employee should be informed of the standards early in the rating year.

Because pure objectivity can rarely be obtained, the supervisor should write the standards as clearly as possible, with an awareness that during the rating year, the employee will receive feedback about performance, both good and bad, that will give the standard content and make it valid. Without content or contextual feedback to an employee during the rating period, there is a good chance that the standard that describes expectations for a professional position will be too vague to pass muster. With feedback concerning how the standard relates to the employee’s day-to-day performance, MSPB will most likely find that an otherwise impermissibly vague standard is valid.

For example, assume that a standard is: Prepares well-written reports that require minimal revision and address most relevant issues. A supervisor who issues such a standard and then has no interaction with an employee about the quality of reports has prepared an invalid, vague standard and will have difficulty winning an adverse action case at the MSPB against a poorly performing employee.

On the other hand, the supervisor who provides clear instructions about what should be in a report when the assignment is issued, provides feedback about the report in the form of an e-mail, memo or notes in the margin and who has opened lines of communication to answer an employee’s questions about a work assignment has given content to the standard and has made it valid.

In other words, supervisors should do their jobs fully, interact with employees about expectations, tell employees when and how they have fallen short and, most important from the perspective of HR specialists and lawyers, keep a record of that interaction.

It is the giving of content to a standard that is most important, not the precision of words in the performance plan. But both must exist and they should work together to put an employee on notice of what performance is expected and when that performance expectation is not being met.

One final word of caution in writing good performance standards is to avoid using negative language to describe acceptable performance. Remember, acceptable performance is that minimum level of performance that an employee must achieve to keep his or her job. Some agencies have a minimally successful level of performance that is not a coveted rating, since it can be the basis for the denial of a within grade increase. But, it does describe acceptable performance, and if it is written in a negative way, it could be found invalid. This is one of the counterintuitive aspects of writing performance standards. Many agencies have avoided the legal difficulty by eliminating minimally successful ratings or by describing unsuccessful and fully successful performance and then stating that minimally successful is in between.

Q&A Session: NSPS Transition and Pay

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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 reassigned to NSPS (the National Security Personnel System at the Department of Defense) from a GS-7 position. On the conversion back from NSPS to the General Schedule (GS), I am now a GS-9, step 1. If NSPS had never been established, I would have been a GS-9, step 2 by now and receiving that compensation level.

The 2010 National Defense Authorization Act, which repealed NSPS, states that employees should be converted from NSPS back to the “statutory pay system and all other aspects of the personnel system that last applied to such an employee.” Wouldn’t my personal pay and grade fall into this? Shouldn’t I get back pay, step increases and the time I have worked in my position credited as a GS-9? There are quite a few people who were reassigned into NSPS and not promoted.

A:

You are asking a complicated question and the answer is not known. Many people will lose out with the conversion back to the GS from NSPS. DoD has promised that no one will lose pay, but many will be in a less advantageous position. Whether a court would be open to providing relief to these disadvantaged NSPS converts is unknown. But the issue may very well be viewed negatively unless an employee can show an actual loss of salary.

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: Travel Comp Time

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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 federal employee I believe I am entitled to travel comp time for the work in excess of my normal commute between my home and PDS office when I have to travel outside of normal work hours for TDY. Specifically, my home is 13 miles from my PDS office and my normal commute from work to home is 20 minutes. The airport is 26 miles from my home and 13 miles from my work and takes me 35 minutes to travel to the airport from home. I interpret the comp time rules to allow me to accumulate 15 minutes of travel comp time from for off-duty time spent traveling from home to the airport for TDY. My employer disagrees and says I am only allowed comp time once I arrive at the airport. My employer has identified the county that I live in as the normal commuting area and the airport falls within this area. Should I be given comp time for my commute from my home to the airport?

A:

Per the Federal Workforce Flexibility Act of 2004, federal employees, when traveling away from their official duty station, may be entitled to compensatory time off for travel outside of regular working hours between an employee’s home and a transportation terminal, such as an airport, outside the limits of his/her official duty station.  See 5 U.S.C. § 5550b.  The amount of compensatory time, if available, is limited to the difference between the amount of time required for travel from the employee’s home to his/her regular duty station, and the amount of time required for travel from the employee’s home and the airport.  5 C.F.R. § 550.1404(d).  In order to be entitled to compensatory time off for travel from home to the airport while detailed to a temporary work station, the airport must be outside the limits of the employee’s “official duty station.”  If the airport is not located outside the geographical limits of the employee’s permanent duty station, then compensatory time off does not accrue until the employee arrives at the airport. 

For the purposes of the Federal Workforce Flexibility Act, “official duty station means the geographic area surrounding an employee’s regular work site that is the same as the area designated by the employing agency for the purpose of determining whether travel time is compensable for the purpose of determining overtime pay.”  5 C.F.R. § 550.1403.  When designating the geographic area surrounding an employee’s regular work site that shall constitute an employee’s the “official duty station,” the agency “may prescribe a mileage radius of not greater than 50 miles to determine whether an employee’s travel is within or outside the limits of the employee’s official duty station for determining entitlement to overtime pay for travel.”  5 C.F.R. § 550.112(j).  As such, the Agency is authorized to determine, in its discretion, the geographic region that shall consist of an employee’s official duty station, so long as that geographic region does not exceed a 50 mile radius of the location of the employee’s permanent duty station. 

In your case, it appears from your email that your home, your permanent duty station, and the airport each reside within the same county.  I assume from your email that the county limits have been prescribed by your employer as the “official duty station,” for the purposes of the Act.  Because you do not travel outside the county limits, you also do not travel outside the geographical region designate as your “official duty station,” and as such, you are not entitled to compensatory time until you arrive at the airport.  

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: Submitting Insurance Claims

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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 can I do if my doctor’s office won’t submit my claim to my insurance company? How does this affect my Flexible Spending Account (FSA) claim? How long does FSA have to process a claim or deny it?

A:

OPM regulations do not directly address the question of what to do if your doctor’s office will not submit a claim to your insurance company, nor does OPM address this issue on the Frequently Asked Questions section of its website. However, OPM suggests that for instance where it does not provide guidance, such as this, you should see your human resources (HR) representative. If your HR rep says he or she doesn’t know, then tell them that OPM’s website directs you to HR.

According to the FSAFED (the flexible spending account for the federal government ) website, “For expenses not covered by your insurance or for expenses that you elect to submit directly to your insurance plan, you must sign the claim form verifying that the expense is not covered and/or has not been reimbursed by FEHB, FEDVIP or any other insurance.”  Visit https://www.fsafeds.com/fsafeds/SummaryOfBenefits.asp#GracePeriod for an explanation.  As to how you will get your money back when you have an outstanding claim, you should also visit your human resources representative for more information.

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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Managers must strike delicate balance when handling EEO complaints

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Any subordinate federal employee can file an equal employment opportunity (EEO) claim against his or her boss at any time, for any reason, and without basis or belief that discrimination is really the problem — and can do so with impunity. Thus, even the best manager cannot stop an abusive EEO complaint.

But a good manager can deal effectively with the complainant and substantially reduce the likelihood of a subsequent reprisal complaint.

Some federal managers are subjected to EEO complaints that can hang around for years in a broken EEO system that delays justice for complainants who are real victims of discrimination. The system requires managers to “manage” EEO complainants, some of whom think they are invulnerable because they have filed an EEO complaint.

One of the most difficult things for the manager is figuring out an appropriate balance when an employee has filed a complaint. This is not such a problem in the private sector, where most EEO complaints are filed by discharged employees. But in the federal civil service, approximately 20,000 EEO complaints are filed every year by employees who keep on coming to work. Many of these employees are sincere about their complaints and worry about reprisal. Others demonstrate an attitude that says, “OK, I dare you to come after me. I’ve filed an EEO complaint.”

The manager must keep making tough day-to-day decisions, including adverse decisions about employees who have filed complaints or have otherwise engaged in EEO activity. There are a few caution areas.

First, do not attack what you have previously allowed. Make sure that the negative adverse action, such as a marginal performance rating or a reprimand, is not in response to the same type of poor performance or misconduct that you tolerated for months or years before the employee went to the EEO office. An employee who performed at a substandard level but was carried with a high or at least good rating could have a good reprisal claim if the manager all of a sudden decides to give the employee the rating he or she deserves. This is particularly true if the lower rating comes shortly after the employee contacts the EEO counselor.

Second, document the reasons for an action. The best practice is to document all the time, not just after an employee has engaged in EEO activity. But if the documentation comes only after the complaint, the successful supervisor will document why an employee’s poor performance or misconduct is more severe than it was before the EEO activity occurred.

Third, do not procrastinate. This is another rule that applies all the time. Promptness in dealing with difficult personnel decisions cuts down on problems with a problem employee who says: “What do you mean I write bad reports, these are the same type of reports I have always written. You’re only doing this because I filed an EEO complaint.” A manager who is continuously on top of concerns and issues in the office is less likely to experience a reprisal claim.

Fourth, be professional. Avoid harsh or humiliating language, especially in front of co-workers. Do not make reference, either to the employee alone or in a group, to the employee’s EEO activity. Threatening or mocking behavior about the employee’s exercise of his or her right to complain about discrimination can, by itself and without the presence of any other personnel action, be a basis for a successful reprisal claim.

Finally, be careful and be circumspect. Consider what actions and management style by you might provoke a reprisal claim. Respect the employee’s dignity. Seek the advice of the human resources or general counsel’s office in deciding whether and how to proceed with a negative personnel action. Let an objective professional test your documentation and reasons for proceeding, and be candid with that professional about the subordinate’s EEO activity.

Employees who have filed EEO complaints are not immune from adverse personnel actions. In fact, tolerating bad behavior or poor performance just because an employee has filed an EEO complaint can be harmful to the supervisor in the long run. But, when a subordinate has filed a complaint, the supervisor does have to work a bit harder and more cautiously to avoid or successfully rebut a reprisal complaint.

Q&A Session: Filing with MSPB v. EEOC

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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 filed a case with Merit Systems Protection Board (MSPB), but I believe it will be dismissed for lack of jurisdiction. If the MSPB dismisses my case, can I appeal the discrimination claims to the Equal Employment Opportunity Commission (EEOC)?

A:

You have described a mixed case. So long as you raised your discrimination claim as a part of your MSPB appeal, you may continue with EEO processing if the MSPB appeal is dismissed for lack of jurisdiction. Mixed cases are complicated, so make sure you coordinate with your agency’s EEO office.

 

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: Disability Retirement

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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 a disabled worker, hired under Schedule A (5 C.F.R. 213.3102(u)) authority, successfully completes the extended probationary period, does that time get credited toward retirement? Are there any pending cases or amendments to this regulation? Why do other federal employees get to count their time toward retirement?

A:

To my knowledge, there are no cases or pending amendments related to Schedule A, 5 C.F.R. 213.3102(u).

With regard to the 2-year probationary period, all Excepted Service employees serve a 2-year probationary period unless they are preference eligible. Further, it appears that an individual’s work experience, while on temporary appointment, counts toward the 2-year time period that is required for non-competitive conversion to career-conditional employment if that individual is later converted to a non-temporary 5 C.F.R.  appointment. OPM is in the process of proposing significant reform to the overall federal hiring process and may further address this issue.

With respect to the retirement eligibility, OPM has specifically excluded all employees who have a temporary appointment pending final determination of eligibility for permanent appointment. OPM’s authority to exclude this category of employees is specifically allowed by the retirement statute. It does seem to encompass the type of temporary appointment governed by 5 C.F.R. 213.3102(u). OPM’s exclusion is not limited to, nor does it directly apply to, disabled employees. Rather, the exclusion is for temporary employees awaiting a permanent appointment.

 

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.