Ask The Lawyer

By Debra Roth

Q&A Session – Promotional Denial

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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:

Can a federal employee’s full performance level promotion be denied after the initial probationary period expired without any prior notification of unsatisfactory performance?

A:

Yes. Full performance level or career ladder promotions have a different standard than probationary periods. The standard for full performance is the ability to perform at the next higher level.

Generally speaking, an employee on a PIP has very limited recourse other than to try to adhere to the PIP’s requirements.

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 – Taking a Contract Job

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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:

Is it legal for a retired military officer to take a contractor job doing the same job he did as when in active duty?

A:

Yes, someone can come back as a contractor and do the same job, but with certain limitations. That person cannot represent a contractor or work on the same matter they worked on as a federal employee. To make sure ethics rules are not being violated (they carry criminal penalties). Contact your designated agency ethics official. They will give you an answer.

 

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 Reimbursement for Airline Miles

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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 recently filed a travel voucher with my agency following my return from leave and temporary duty. I purchased airline miles with my credit card and applied the miles toward my airfare. I used the airfare for my leave, but stopped at a TDY location on the way home. I was told that GAO doesn’t recognize airline miles and would not reimburse my ticket to the TDY location. Is this correct?

A:

Even though you paid with your personal credit card for the miles utilized to obtain your airfare that was ultimately used for official travel, you unfortunately are not entitled to reimbursement.  As you indicated, federal employees are eligible for payment of travel expenses, such as air fare, when performing official travel.  41 C.F.R. § 301-10.1-10.2.  It appears that your trip would qualify as “official travel,” thus warranting reimbursement of your air fare.  However, as the Agency advised you, you are not entitled to reimbursement for the miles used to obtain the airfare, or for reimbursement of the credit card payment maid to purchase the miles.  Such payment is prohibited by the Federal Regulations.  Generally, travel expenses should be paid with an employee’s government-issued travel card, unless you have an exemption.  41 C.F.R. § 301-51.1.  If you receive an exemption, you may pay for transportation expenses with cash, personal credit cards, personal check, or travelers check.  41 § 301-51-101.  Because you did not pay for the airfare with cash or a cash equivalent, you are not eligible for reimbursement, and it is immaterial that you did pay for the miles with a cash equivalent. 

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:

An employee has a medical condition that prevents him from doing his job which requires heavy lifting and a lot of walking. What are his options?

A:

Under the Rehabilitation Act, or the Americans With Disabilities Act as applied to federal employees, federal employers are obligated to provide a reasonable accommodation for an employee with a disability, if requested, so long as the accommodation does not pose an undue hardship on the employee.  To qualify for a reasonable accommodation, an employee must show that he has a physical/mental impairment that substantially limits a major life activity, that the disability precludes the employee from meeting the established criteria of his position, and except for the disability the employee is qualified to fill the position.  With or without the reasonable accommodation, the employee must be able to perform the essential functions of the job. Depending on the nature of your job, and the doctor’s diagnosis of your illness, and whether you can perform the essential functions of the job, you may be eligible for a reasonable accommodation. 

If the Agency is unable to accommodate you for your disability, or reassign you to a vacant position at the same grade/pay level, then you may be eligible for disability retirement.  To be eligible for disability retirement, you must have completed at least 18 months of Federal service credible under FERS, have become disabled because of disease or injury, and the disability must be expected to last at least 1 year.  If you meet these requirements, you are eligible to apply for disability retirement within 1 year of your separation from service.

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 – Grieving a PIP

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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:

In a recent column I read that employees could not grieve being given a PIP. Could you please provide the legal reference for this?

A:

Many federal agency administrative grievance procedures (non-union) and negotiated collective bargaining agreements (CBA) exclude performance improvement plans (PIP) as grievable matters.  This is because PIPs are considered to be a preliminary step in addressing perceived performance deficiencies and have no actual impact on employment, even though the employee usually feels that way.  It is only when management decides to take adverse action on the outcome of the PIP (i.e., a demotion or removal) that a grievance can be filed, though there may be a better route, such as an appeal to the U.S. Merit Systems Protection Board (MSPB).  PIPs can be challenged in other ways, such as with an EEO complaint if there is a belief that it is part of a pattern of unlawful EEO discrimination or reprisal.  You should, however, check your specific agency’s procedure or CBA, whichever is applicable, to see how PIPs are treated where you work. 

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 – False EEO Complaints

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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 have an employee that makes frequent complaints of harassment. Can this employee be brought up on charges that she caused a hostile work environment due to false EEO allegations?

A:

Filing a hostile work environment claim against an employee requires a basis of discriminations, such as race, religion, national origin, disability, sex, etc. You cannot file a hostile work environment claim against an employee merely because she filed a complaint against you.

As for misusing the EEO process, the agency can dismiss an employee’s complaint when the complaints are “part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination.” Under 29 C.F.R §1614.107, a clear pattern of misuse of the EEO process requires:

(i)      Evidence of multiple complaint filings; and

(ii)     Allegations that are similar or identical, lack specificity or involve matters previously resolved; or

(iii)    Evidence of circumventing other administrative processes, retaliating against the agency’s in-house administrative processes or overburdening the EEO complaint system.

Whether to dismiss a case using this basis is a decision made by the EEO office, not the manager.

Remember, employees have a right to use the EEO system to file workplace complaints. Managers have an obligation to respect that right and to work cooperatively with the EEO process. That is part of a federal manager’s job.

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

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Performance or conduct? Standards differ for adverse action

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A perplexing challenge for a federal manager is figuring out whether a problem employee should be handled through the performance or misconduct adverse action systems. Each system has different standards and requirements. To some managers this looks like a legal trap: Make a misstep and the problem employee is empowered, and the manager is paralyzed in dealing with that employee in the future.

This is really not true. Congress has given federal managers both tools, and the U.S. Court of Appeals for the Federal Circuit has ruled that managers are free to use either system. Both tools work, but one may work better than the other depending on the situation.

Let’s take an example of a problem employee we will call Jim. Jim’s job requires him to coordinate projects with other agencies and with the public. Jim’s projects often run behind schedule. Jim also is rude to his counterparts in other agencies and to members of the public. Is this performance or conduct? It could be either.

Since Jim’s job requires him to coordinate projects and deal effectively with others, he should have at least two critical elements in his performance plan, one dealing with coordinating projects and the other setting expectations on interpersonal skills. When Jim has been on his performance plan for at least 90 days, or longer if an agency’s performance system requires it, Jim’s manager can evaluate Jim’s performance as unacceptable and put Jim on a performance improvement plan (PIP). If Jim’s unacceptable performance continues, his supervisor can propose removal or demotion under the performance adverse action system. Jim’s appeal to the Merit Systems Protection Board (MSPB) or an arbitrator will be judged by an evidentiary standard that is favorable to the agency. This is called a performance case.

Jim’s behavior may also be considered misconduct because it affects the efficiency of the service. Efficiency of the service is the statutory standard that managers must use in disciplining employees using the misconduct system. If the case goes before MSPB or an arbitrator, Jim’s supervisor must show a relationship between the efficiency of the service and Jim’s failure to coordinate projects and have a good attitude. Jim’s behavior need only be proved by a preponderance of the evidence, so Jim’s supervisor has to show that it is more likely true than not that Jim’s failure to coordinate projects and his bad attitude occurred. Usually, the supervisor’s testimony and contemporaneous documentation are sufficient.

In the example of Jim, either the performance or misconduct system works because Jim’s misconduct relates specifically to a performance standard. So, it really does not matter whether it is called performance or misconduct. What matters is whether the legal requirements of either system have been met.

A misconduct case must be proved by a preponderance of the evidence and must show some relationship to the efficiency of the service. The so-called “Douglas factors” — such as seriousness of the offense, past record, notoriety, similarity with penalty received by others — apply. An MSPB judge or arbitrator may review the appropriateness of a penalty. Essentially, this means that minor misconduct is grounds for removal only if it is repeated. A misconduct case can be taken without consideration of how long ago the misconduct occurred.

A performance case must be based on performance that occurred within the past year and was repeated after notice and placement on a PIP. Failure to perform must relate to failure to meet a performance standard, as opposed to efficiency of the service in a misconduct case.

The agency need only prove a performance case by substantial evidence, a lower burden of proof than the preponderance of the evidence needed in a misconduct case.

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Q&A Session: Duty Hours During TDY Travel Day

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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:

Our supervisor wants us to account for all hours on a TDY travel day. If the work/hours do not account for 8 hours, we’re supposed to take leave or go into the office. To accommodate people at a TDY site, we usually start work later than our normal duty hours. Our supervisor also wants us to add up all the hours we work and travel in the day and anything over 8 hours is Travel Comp time. He said that we have to take leave for the early morning hours before we start work.

A:

Per the Federal Workforce Flexibility Act of 2004 (the “Act”), 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 temporary duty station outside the limits of an employee’s official duty station.  See 5 U.S.C. § 5550b; see also 5 C.F.R. § 550.1404(c).  However, an employee is only entitled to compensatory time off “for time in a travel status away from the employee’s official duty station when the travel time is not otherwise compensable.”  5 C.F.R. § 55.1401 (emphasis added); see 5 C.F.R. § 550.1403 (“Compensable refers to periods of time that are credible as hours of work for the purpose of determining a specific pay entitlement, even when that work time may not actually generate additional compensation because of applicable pay limitations”).  Because your tour of duty at the temporary duty station begins later than your normally scheduled tour of duty, while presumably still ending at your usually scheduled time, your travel time occurs during the hours of your normal tour of duty, or during “compensable time.”  Because the Act only provides compensatory time of for travel time that “is not otherwise compensable,” or time greater than your regularly scheduled, 8-hour tour of duty, your supervisor appears to be correctly applying the OPM regulations. 

 

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 a Formal Complaint

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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:

A colleague regularly breakes rules from our employee conduct handbook. Several of us have kept notes documenting the incident and have reported it to management. The only incidents that have been addressed have been when one of us agreed to be named as the person that reported the behavior. For those people that fear retaliation because of being a subordinate of the problem employee, is it necessary to make a formal statement before the employee is confronted?

A:

Each federal agency has an obligation to investigate allegations of misconduct against its own personnel, and similarly, federal employees have an obligation to report any known misconduct.  Of course, federal employees also possess many rights in the workplace that often intertwine with these respective obligations.  Specifically, a federal employee may only be disciplined for just cause, and federal employees have the right to reply to any proposed and/or final disciplinary action.  In responding to a disciplinary action, a federal employee may review the evidentiary materials relied upon to support the disciplinary action, and may also present additional evidence to rebut the disciplinary action.  Moreover, the government may only administer disciplinary action against an employee when a preponderance of the credible evidence supports the finding that the employee engaged in the alleged misconduct as charged.  While each case is different, the government would generally require evidence greater than an anonymous allegation to meet its burden of proof to support a disciplinary action (which may explain why you have not seen the Agency respond to you and your colleagues’ complaints in the past).  A written, signed, and certified statement, however, is substantially stronger and more persuasive evidence than an anonymous, verbal complaint.  Accordingly, a signed, certified statement is more likely enough evidence for the government to meet it’s ultimate burden of proof to support a disciplinary action.

While it may be discouraging to you that you are required to make formal complaints of misconduct in writing, it also protects you from facing an administrative investigation or proposed disciplinary action likewise based solely upon an anonymous, frivolous complaint.  Furthermore, the Whistleblower Protection Act, and presumably Agency directive/policy, prohibits retaliation in the workplace against those who report misconduct.  If you believe that you have been retaliated against for reporting your supervisor’s misconduct, you may file an internal complaint within your Agency, or file a formal complaint at the Office of Special Counsel. 

 

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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