Ask The Lawyer

By Debra Roth

EAPs are great tools for managers and subordinates

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Employee assistance programs (EAPs) have existed for many years in all agencies. For managers, they are available as a place to refer an employee who may have conduct or performance problems on the job or otherwise may be having a tough time.

For employees with personal problems, they are free, competent and mostly confidential sources of help. All employees and supervisors should understand the basics of the programs to ensure maximum use and fulfillment of legal requirements.

First, managers should know that agencies are required by law to have EAPs. Thus, it is not just some nice-to-have, optional employee benefit and should not be regarded that way.

Second, managers are required by law to refer employees to EAP if they suspect an employee has a drug or alcohol abuse problem. Employees are not obligated to follow through on the referral, but managers should be aware that Congress first mandated EAPs as a means of helping treat federal employees who have substance or alcohol abuse issues.

Third, EAP counselors must keep confidential anything that is told to them by the employees they treat, with few exceptions. One important exception is the employee who makes threatening statements about or toward others during an EAP session. Under such circumstances, state laws require the EAP counselor who believes the threat may be real to reveal what is said, but only to the extent necessary to protect others.

The most important point about the confidentiality is to recognize that managers cannot use EAP as an investigatory tool to find more evidence to use against a problem employee. An employee who may be distrustful of his management should take comfort in knowing the EAP is a true source of confidential assistance that, over the years, has helped many thousands of employees with difficult life problems, not just alcohol and drug abuse.

Aside from these statutory requirements, EAPs have grown in scope and significance. A capable manager should visit an EAP office to learn the types of services offered, the signs of when an employee may benefit from EAP, and strategies to encourage EAP use.

Managers who are contemplating an adverse action for poor performance or misconduct, particularly if observed behaviors have changed over time, should consider EAP and put a suggestion of EAP use in writing. For example, a memo preceding a performance improvement plan to warn an employee that performance is slipping to the unacceptable level should also include a statement advising the employee about the availability of free, confidential counseling by trained EAP professionals. Such a memo is a good supervisory practice to both document and place an employee on notice.

Adverse-action proposals routinely include EAP advisements, as well as notice that the employee may provide for consideration any medical reason for behavior or performance problems. It is the employee’s decision whether to share with managers a medical reason for misconduct or poor performance or the results or progress in EAP counseling.

The manager should not make paternalistic judgments about the employee’s privacy choices. He should instead focus on making a good supervisory judgment about the employee’s substandard employment or misconduct and take comfort in the fact that, overall, EAP has helped thousands and has greatly contributed to the efficiency of government by helping to produce productive and less-stressed employees.

One final use of EAP is to help the manager deal with the employee whose alcoholism is affecting the workplace. Remedies such as “firm choice” (either go to EAP and get treatment or be fired) and “last chance” (go to EAP and get treatment and if there is further misconduct you will be fired and your appeal rights will have been waived) are effective in helping an alcoholic realize that he has hit bottom and needs help.

While neither firm choice nor last chance is required by law, an agency has the option to use these tools, and EAP is a great partner in an effort to turn a life around to produce a valuable and reformed agency asset.

Remember: It’s there, it’s free, it’s confidential and it makes a difference. Use it.

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Q & A Session – Poor Performer Accusation

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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 been called a poor performer and my attendance and credibility has been questioned, which has created a hostile work environment. How do I handle this as a federal employee?

A:

I do not have enough information to answer this question. Generally, supervisors acting within the scope of their employment who accuse a subordinate of poor performance or attendance issues, even if the accusation is maliciously false, cannot be sued for defamation. An employee who has been unjustly accused of poor performance or misconduct can, of course, file a grievance or an EEO complaint.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Overtime While On Travel Status

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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 is the rule for paying overtime to an employee while on travel status?

A:

Pursuant to 5 U.S.C. § 5542(b)(2) and 5 C.F.R. § 550.112(g), official travel away from one’s duty station is considered hours of work, including overtime hours when applicable, if: the travel occurs within the regularly scheduled work week; or the travel includes the performance of work while traveling, is incident to travel that involves the performance of work while traveling, is carried out under arduous or dangerous conditions, or results from an event that could not be scheduled or controlled administratively by any individual or agency in the Government.  If time while on travel status does not meet one of the above to qualify as hours of work or overtime, then it may be credited to compensatory time.  An employee on a TDY is 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 creditable 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”).

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Retroactive FMLA

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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 out on sick leave, but never requested FMLA protection. Can an employee ask for retroactive FMLA?

A:

A qualified employee may use up to twelve (12) workweeks of leave during any 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her position.  5 CFR § 630.1203(4).  In order for an absence to qualify as FMLA leave, the employee must invoke his or her right to FMLA leave and must comply with the FMLA notice and medical documentation requirements.  5 CFR § 630.1203(4)(b).  An employee may not retroactively invoke his or her entitlement to FMLA leave unless that employee and his or her personal representative were physically or mentally incapable of doing so during the entire period in which that employee was absent from work for FMLA-qualifying purposes.  5 CFR § 630.1203(4)(b).  In that case, an employee may retroactively invoke his or her right to FMLA leave within 48 hours after returning to work.  5 CFR § 630.1203(4)(b).  The incapacity of the employee must be documented and he or she must also explain why their personal representative was unable to contact the Agency and invoke the employee’s right to FMLA leave.  5 CFR § 630.1203(4)(b).

If an employer asks an employee if they would like to invoke their right to FMLA leave and the employee declines to do so, the employer may not place the employee on FMLA leave.  5 CFR § 630.1203(4)(h).  Should the employee return to work after declining to invoke his right to FMLA leave and provide insufficient medical documentation to support the absence, then the Agency should follow its sick leave policies, requesting more documentation and/or declining the sick leave request were appropriate.  Where the employee has declined to invoke FMLA leave, any subsequent attempt to retroactively invoke his or her right to FMLA leave for the absence after he returns to work must meet both the FMLA timing and incapacity requirements.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Workday Requirements

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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 regulations for when a workday begins? Is it when you enter the building or your office?

A:

Generally, the head of each Agency establishes the work requirements for the basic workweek. Check with your human resources office to get a copy of the policy.

Under the Fair Labor Standards Act (FLSA), any walking and waiting time that occurs after the employee engages in his or her first principal activity and before he or she finishes his or her last principle activity, is part of the “continuous workday” and is compensable under the FLSA. The “workday” is defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Under the FLSA, it appears that the time spent entering a federal property and passing through security in the building do not qualify as the commencement of the workday.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q&A Session – Profane Language in the Workplace

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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:

Who can I talk to about an inspector making public profanity comments in a public building to me? As background, I am a contract security guard. An inspector was explaining something to my partner and when I asked a question he yelled at me and used profane language.

A:

I assume the inspector you mention is a federal employee. As a contract employee, you should report the incident to your company’s management and ask them to report it to the contractor’s technical representative at the agency. The conduct you describe is potentially actionable, although, because of the Privacy Act, you may never learn if any action is taken.


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 – Challenging Classification and PDs

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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 been working without performance standards and my position description, classification and grade does not accurately reflect what I do. OPM has advised that they cannot conduct a review of the agency’s classification program without first allowing the agency to address the issue. The agency has not taken any action. Do we have any recourse to address this issue?

A:

The complicated, arcane and outdated classification system does depend on accurate position descriptions (PD) and fair classification decisions based on those PDs. You can file a grievance over an inaccurate PD or request a desk audit. If you don’t get a desk audit, you can file a grievance over that. But, management may deny your grievance and there is little recourse to that denial (unless you are in a bargaining unit). By raising these issues, you increase the likelihood that management will pay attention to your concerns. Once you have an accurate PD, the classification appeal to OPM is your only and final recourse.

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 – Is It 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:

An employee tells coworkers that he will be taking off for a long weekend, but does not have seniority to receive leave and is on the work schedule for those days. The employee then calls in with an emergency and claims FMLA (Family & Medical Leave) for those same days. Is this FMLA abuse?

A:

The FMLA rules anticipate that an employee request a FMLA absence in advance. Recognizing that this is not always possible, OPM regulations do allow for an employee to request a FMLA absence for a serious health condition for up to 2 days after the employee’s return to duty. The agency may require medical evidence of the serious health condition. Generally, a serious health condition is defined as one night in the hospital or two visits to the doctor for the same condition. Thus, headaches, general malaise, colds and stomach aches that are either not treated by a doctor or only require one visit to the physician’s office do not qualify for FMLA. An employee who claims FMLA without being able to show a serious health condition risks an AWOL (absent without leave) status.


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 – Work Travel Time and TDY

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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:

Sometimes I am required to travel outside my normal duty hours to perform work at different base that may require the travel to start at 4:30 AM and return to my place of duty after 5PM. This isn’t on TDY but must be done in order to meet the contractors at the site they are working so I can provide COR over site. I have been told that all travel outside my normal duty day must be claimed as travel comp time and I can’t claim comp time earned because the work was done away from my regular office. As I understand the regulations on travel comp it is to be claimed when on official travel to a temporary duty station or waiting for a connecting flight. This appears to me as a TDY duty not within the normal work day. I think I should be able to claim comp time earned or overtime depending on if I am covered under FLSA or not. Is this correct?

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).  In order for your travel 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 actual 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.  Thus, for your travel to qualify as a TDY, you must travel beyond the geographical area designated as your “official duty station.” 

An employee on a TDY 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”).  In your case, your travel may be compensable. Pursuant to 5 U.S.C. § 5542(b)(2) and 5 C.F.R. § 550.112(g), official travel away from one’s duty station is considered hours of work, if: the travel occurs within the regularly scheduled work week; or if the travel includes the performance of work while traveling, is incident to travel that involves the performance of work while traveling, is carried out under arduous or dangerous conditions, or results from an event that could not be scheduled or controlled administratively by any individual or agency in the Government.  Based on the limited facts you provided, it is possible that your travel may be compensable as hour of work, as your travel to other bases to meet with contractors may qualify as travel that “results from an event which could not be scheduled or controlled administratively [by the Government].”  5 C.F.R. § 550.112(g)(2)(iv).

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 handle threatening behavior

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The issue of threats in the workplace is a serious matter for managers and for those employees who are subjected to the fear and intimidation that can accompany a threat. Managers have a duty to respond quickly and decisively. But when is a threat really a threat, and what action is appropriate?

In the federal workplace, managers and human resources professionals use a five-part formula to determine how serious the threat is. This formula is often referred to as the Metz factors, a name taken from the court case that decided when a threat is a threat. The Metz factors are: the listener’s reactions; the listener’s apprehension of harm; the speaker’s intent; any conditional nature of the statements; and the attendant circumstances.

The first two Metz factors center on the person who heard the threat. How seriously did the listener take the threat? Was he nonchalant or concerned? Did the listener wait hours before reporting the threatening comment, or was the issue raised immediately? These are probably the most important parts of assessing a threat. If a supervisor or co-worker feels that harm may occur and acts as if that is genuinely believed, it is more likely that a threat would be considered real and serious.

The speaker’s intent is sometimes difficult to ascertain. What is meant by the statement, “I’ll take you out?” Does it mean physical violence or the filing of an equal employment opportunity complaint? If the speaker’s intent is physical violence, immediate administrative leave and a probable proposed removal are appropriate responses. But if the speaker is talking about an EEO complaint, a reaction by a manager could be viewed as reprisal.

Context is important in determining the speaker’s intent. What else was being discussed when the threat was made? Was the speaker physically agitated? Was the speaker mentioning legal process and the exercise of rights? These are important considerations and increase the need for immediate and detailed documentation describing the context of the statements. It is appropriate to include in this documentation the tone of voice, the body language and other characteristics that might show out-of-control behavior consistent with a threat of physical violence.

A conditional threat, the fourth Metz factor, could require lesser penalties, but not always. Consider the following threat to the supervisor: “Get off my back or watch your back the next time you go through the parking lot at night.” Technically, the threat is conditional, but the supervisor has an obligation to supervise, which could be construed by the subordinate as being on his back. The comment is meant to intimidate a manager and is most likely a serious threat, assuming the manager interprets it that way. Sometimes the “conditions” surrounding a conditional threat can be so remote that a listener would not be concerned. Again, context is important.

The final factor, the attendant circumstances, requires care to ascertain. When is a threat real and when is it just venting? Sometimes a threat will be made to a third person and directed to a supervisor or a co-worker who is not present. When confronted, the speaker may say he was not serious and was just getting frustrations off his chest. But the fact that the listener reported the comment may tell a different story.

If the Metz factors indicate that the threat was not serious or perhaps not a threat at all, a manager might feel comfortable returning the employee to work, but may want to impose some penalty, perhaps for a lesser charge such as disruptive behavior.

But whenever a manager thinks that a threat might be real, the most important immediate action is to remove the speaker from the workplace and place him on administrative leave while the Metz factors are reviewed and evaluated to determine appropriate action.

Office of Personnel Management regulations at 5 CFR §752.404 provide this authority to managers.

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