Ask The Lawyer

By Debra Roth

Q&A Session – TDY for Travel Outside “Official Duty Station”

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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 I have to work a half day or more at locations that are 60 miles or greater from my normal place of work, can I be authorized for TDY?

A:

In order for your visits to other locations throughout the city to qualify as a TDY (and for you to gain compensatory time for travel to/from a temporary duty station), one must travel outside their “official duty station.”  Your “official duty station,” however, is not limited to just your work site.  Instead, one’s “official duty station” is a reasonable geographic area surrounding the work site, as designated by the Agency.  5 C.F.R. § 550.1403.  When designating the geographic area surrounding an employee’s regular work site that shall constitute an employee’s “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.  Therefore, in order for your single-day drives to other locations in the city to qualify as a temporary duty assignment, you must travel beyond your “official duty station.”  Because your “official duty station” cannot exceed a 50 mile radius of the location of your normal work station, your trips that are “60 miles or greater” should qualify as a TDY, and warrant compensatory travel time for you.

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 – Veterans Preference on SF50

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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:

On an SF50, which veterans can check yes on box #26 (Veterans Preference)?

A:

Box #26 on a SF-50 may only be checked off as “yes” generally if a civilian employee is both retired from the military (your question states that you are not) and satisfies at least one of the three following conditions:

  1. The retirement was caused by an injury or disease endured directly from armed conflict or war;
  2. The employee has less than 20 years of full-time active duty service, excluding periods of active duty for training; or
  3. The employee has been continuously employed in one of the following since November 30, 1964 and without a break in service of more than 30 days: the executive branch of the federal government; in the competitive service position in another branch of the federal government; or in another position designated with RIFs coverage.

Those who retired at the rank of major or above (or equivalent) may only be considered a preference eligible with special RIF rights (and Box #26 can be checked of as “yes”) if they are a disabled veteran and either: (1) meet one of the three conditions above; or (2) are at least 60 years old and are eligible for certain retirement pay.

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 – Internal Policies on Adverse Actions

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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:

Do federal agencies have internal policies or directives on adverse actions?

A:

Some agencies have internal policies including tables of penalties. If an agency has a policy, it must be consistent with law and it imposes obligation on the agency to follow its stated policies. These policies should be publicly available.

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 – Non-Lawyer Representation

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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 non-lawyer can be a representative in an EEO case and what can’t they do that a lawyer can?

A:

The EEOC is not a court and a non-lawyer can represent a complainant there. If the case ends up in federal district court, the complainant can only proceed pro se (represent him or herself) or with a licensed lawyer. If a non-lawyer represents someone at the agency or at the EEOC, a prevailing complainant would not be entitled to attorney fees.

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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How to decrease the likelihood of a reduction-in-force appeal

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We have not heard much about reductions in force (RIFs) in recent years, but expect a comeback soon as the executive branch copes with budget cutbacks, reorganizations and elimination of some programs. Employees who are separated or demoted because of a RIF have a right to file an appeal with the Merit Systems Protection Board. This column addresses the things that management can do to lose a RIF appeal.

A RIF is a highly technical creature. It does not allow for much discretion. Instead, once it’s decided that a RIF is necessary, an agency must establish what are called competitive areas and competitive levels. Retention registers are developed by listing employees in the order of their retention standings in those competitive areas and levels, and employees “bump” and “retreat” until the RIF is complete — with some employees losing their jobs or being demoted. A separated employee may be entitled to severance pay or discontinued service (early) retirement. A demoted employee is entitled to grade retention for two years and pay retention indefinitely.

Because a RIF is so technical, an agency should be able to go mechanically through the process and survive any MSPB appeal. But it is not that easy. The technical aspects are difficult to understand and should be undertaken by a human resources specialist who is experienced in the RIF process. Otherwise, it is easy to make a mistake.

Keep these basic principles in mind to minimize the likelihood of a successful RIF appeal:

A RIF cannot be personal or used as a pretext to take adverse action against a problem employee. An agency has authority to conduct a RIF because of a lack of work, shortage of funds, insufficient personnel ceiling, reorganization, the exercise of re-employment rights or restoration rights, or the reclassification of a position due to erosion of duties. If one of these conditions exists, MSPB will not dig deeper. However, MSPB will more closely scrutinize a RIF if evidence exists indicating the RIF is personal.

It is permissible to release a problem employee as a result of a RIF as long as that is where the process takes the agency. Because employees’ competitive standings in a RIF include performance appraisal ratings, it is likely that a problem employee would be released in a RIF. What is not permissible is to manipulate the process to obtain a predetermined result. Avoid an e-mail that says: “In doing this RIF, I really want to keep Jane, but Tom needs to go.”

Respect veterans preference. Preference-eligible veterans are in the highest category for retention and, among them, disabled veterans are at the top. Preference-eligible rules can be tricky, so make sure they are followed.

Define competitive levels carefully. A competitive area is the geographic location encompassing the RIF, but the real competition takes place in the competitive level. A competitive level contains all jobs at the same grade level and job series that are similar. The agency has some discretion in defining a competitive level, and one-person competitive levels have been upheld by MSPB. An employee who believes an action is personal may challenge the legitimacy of a competitive level by claiming it has been drawn too narrowly.

Understand “bump” and “retreat” and the different RIF protections for competitive-service and excepted-service employees. Bump and retreat only apply to competitive-service positions. Bumping is when you move to a lower group to avoid being released, but bump another employee in the process. Retreating is going back to a job you once held, displacing the incumbent. The rules are highly technical and provide a good place for a misstep in a RIF.

This discussion is not an exhaustive explanation of RIF rules. It is a starting point for an agency’s success in a RIF. Failure to follow these principles greatly increases the chances of losing a RIF appeal.

Q&A Session – Management Discipline

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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 management be disciplined if cameras are in the interview area and there is a Memorandum of Understanding that specifies that cameras should not be in that area?

A:

It is difficult to tell the context of this question. As a general rule, a lower level employee cannot order, mandate, or insist upon the discipline of a higher level manager. The lower level employee could report what he or she perceives as wrongdoing to an even higher level of management that the wrongdoer. That higher level manager could then decide to discipline the offending lower level manager.

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 – Whistleblower Protection

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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 an employee do when they are being retaliated against by their supervisor through the performance/conduct evaluations for reporting unsafe practices?

A:

Reporting unsafe practices is protected by the Whistleblower Protection Act. If that is the reason for a lowered appraisal, you can report the reprisal to the Office of Special Counsel. For more information, go to www.osc.gov.

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 – FMLA Abuse

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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 who was placed on Family and Medical Leave (FMLA) to care for an estranged child. However, the employee has been posting pictures on Facebook showing him with his child during activities like site-seeing and fishing. Is this an abuse of FMLA?

A:

A qualified employee may use up to twelve (12) workweeks of leave during any 12-month period to care for his or her son or daughter if that son or daughter has a serious health condition.  5 CFR § 630.1203.  A serious health condition means an illness, injury, impairment, or physical or mental condition that involves inpatient care, continuing treatment by a health care provider, which may include a period of incapacity of more than 3 consecutive calendar days that involves at least two or more treatments by a health care provider or treatment that results in a regimen of continuing treatment or a period of incapacity or treatment due to a chronic serious health condition.  5 CFR § 630.1202.  Federal regulations also define a son or daughter to mean a biological or adopted child, foster child or step child under 18 years of age or, if 18 years of age or older, incapable of self-care because of a mental or physical disability.  5 CFR § 630.1202.   

An employer may require that a request for FMLA leave is supported by evidence that is administratively acceptable to the Agency.  5 CFR § 630.1206.  The Agency, therefore, may require that the request to care for a son or daughter over the age of 18 be supported by acceptable evidence that the son or daughter is incapable of self care.

The employer also may require medical certification supporting the FMLA leave.  5 CFR § 630.1207.  The medical certification shall include the date the serious health condition commenced; the probable duration of the serious health condition or that it is chronic with an unknown duration; the appropriate medical facts regarding the serious health condition, including information about the incapacitation, examination and treatment that may be required for this condition; and, a signed statement from the health care provider that the son or daughter of the employee requires psychological comfort and/or physical care coupled with a statement by the employee regarding the care he will provide and the estimate of the amount of time needed to care for his son or daughter.  5 CFR § 630.1207(b).

If the employee has submitted this information to the Agency, then the Agency may not request new information from the health care provider, although a health care provider representing the Agency may contact the health care provider who completed the certification, with the employee’s permission, for clarification of the medical certification.  5 CFR § 630.1207(c).  To remain entitled to FMLA leave to care for his son or daughter, the employee must comply with any requirement that his son or daughter submit to an examination to obtain a second or medical certification from a health care provider other than the individual’s health care provider.  5 CFR § 630.1207(f). 

It is not relevant to the issue of whether the employee may use FMLA leave to care for his son the fact that the father has or has not cared for his son during the past twenty years so long as that son, who is presumably over 18 years old, is incapable of self care because of a mental or physical disability and meets the definition of a son under the regulations.  That the father is posting pictures on Facebook showing the father and son site seeing and fishing also may not be relevant should these activities be shown to be part of the psychological comfort related to the son’s recovery from the serious health condition.  

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 – Retirement 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:

My brother is a federal retiree. He is currently serving time in prison for a crime he committed before he was a federal employee and the conviction was not related to his federal service. Will the felony conviction affect his retirement pay?

A:

Assuming your brother is already retired, the conviction will not affect retirement eligibility. Federal employees lose their retirement when convicted of offenses such as treason, espionage, sabotage and other offenses related to these. Members of Congress have a much broader list of offenses that will result in the Congressman’s loss of an annuity, if convicted.

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 – NSPS Pay Retention

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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:

With the transition back to the General Schedule (GS) from the National Security Personnel System (NSPS), can they lower the grade level or pay of the employee?

A:

The conversion from NSPS back to the General Schedule has caused a great deal of confusion. Employees are supposed to be moved from their NSPS designation to a GS position with the equivalent duties and responsibilities. An employee is not supposed to see a decrease in pay. However, if you were making a salary under NSPS that is higher than the GS salary for your converted position, you will be placed under pay retention – which means you will not be eligible for full salary adjustments until the General Schedule catches up. Your supervisor and HR specialist should be able to discuss your specific situation.

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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