Ask The Lawyer

By Debra Roth

Q & A Session – Qualified for GS-14 Position?

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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 under NSPS and have been converted back to the General Schedule as a GS-12. I am receiving retained pay because under NSPS I was the equivalent of a GS-13. I would like to apply for a newly created GS-14 position. I have been certified as fully qualified, but want to know if there is a basis to appeal the decision?

A:

Your question is unclear.

Were you denied the position because you were found unqualified for the GS-14 because you lacked 52 weeks as the GS-13? If so, you have to convince the hiring authority that you did have the GS-13 experience under NSPS. That might be difficult to do, and your remedies are limited. You can file a grievance. If you can prove illegal discrimination EEO might work. If you can show a violation of the merit promotion plan, you might seek help from the U.S. Office of Special Counsel.

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 – Proposed Removal for Drugs/DUI

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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My security clearance has been revoked for possession of marijuana and a DUI. My position requires a clearance. Are there any options to combat my removal?

A:

Illegal drug use while possessing a security clearance is a very serious matter likely to lead to a loss of clearance. It is not automatic, but it will take some very strong mitigating circumstances to keep the clearance. See the Ask the Lawyer column on November 15, 2010.

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 – EAP Referrals

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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 read the previous article on how Employee Assistance Programs (EAP) came into existence. Are there other reasons to refer to an EAP besides alcohol or drug use? What about if your husband is an alcoholic or if your spouse is physically abusive and that has led to poor performance?

A:

EAPs can be used for very broad purposes, including all those mentioned in this inquiry. The reason for the emphasis on alcohol and drug abuse in the earlier column is that the statutory bans for EAPs stem from alcohol and drug abuse.

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 – Hostile Work Environment and Leave

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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:

After 23 years of government service, I was recently reassigned to a new job and new supervisor. I have not yet been placed on performance objectives, but my new supervisor has threatened to place me on a PIP after being unable to complete a task because I had an already schedule appointment. The next day my supervisor yelled at me in front of the office. I felt sick, submitted a leave slip and went home. I called in sick the next day, and I had already gotten leave approved for the remainder of the week. I have received a letter of counseling that said I would be docked pay and marked AWOL because I did not submit my leave properly.  I have never had any problems with my performance and have a great deal of annual and sick leave I would like to use to take my mother to her medical appointments. What should I do?

A:

There is no justification for a supervisor to yell at a subordinate, especially in front of coworkers. That being said, if I had been threatened with a PIP and was given a deadline, I would cancel prior approved leave and doctor’s appointments to meet the deadline.

Also, if I had 23 years of government service with a spotless record and a new supervisor who clearly had me in his sights, I would make sure I followed leave rules, no matter how sick I felt.

Finally, if your mother has a serious health condition and needs your assistance (and this assumes you have documentation for both health conditions and the need for you to help our mother), you are entitled to time off under the Family Medical Leave Act. If you just want your time off to spend with your mother, your supervisor has every right to deny your leave request. You then have every right to file a grievance if you think your supervisor’s leave denial is unjustified and unreasonable.

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

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Q & A Session – Base Pay Reduction

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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:

During the NSPS to GS conversion in June 2010, my base pay was reduced 10%. The reduction in base pay was not administrative or voluntary. Is this legal?

A:

If your base salary was reduced, you may have an MSPB appeal right. You might consider consulting an attorney or filing an MSPB appeal on your own to raise the issue. Non-probationary employees who have their base pay reduced are entitled to due process.

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 – US Citizenship for Civil Service

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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:

When I first applied and was hired onto my position two years ago, the job required permanent residency. Since I have a green card and am a permanent resident, I was hired after an interview process and background check. Recently, I was told the position requires citizenship, and I have been stripped of my responsibilities. Is this allow under EEO and what are my rights?

A:

U.S. citizenship, with a few exceptions, is a requirement for a civil service job. Citizenship status is not protected under EEO law and your rights are limited to those your agency will allow you to have.

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 – Student Loan Debt

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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 security clearance is up for renewal in 3 years. Together, my wife and I have credit card and student loan debt that has been accumulating over the past 15 years from personal injuries and layoffs. My student loans are currently in voluntary forbearance but that will run out in three years and it’s the only reason they have not gone into default. What can I do to try and keep my security clearance? What type of background or information should I be accumulating?

A:

Keep in mind that when your clearance is updated, your credit report will be reviewed. The existence of your student loans and your repayment history will be an issue.

The concern is whether you are living within your means and being responsible with your debts. Bankruptcy and garnishments are not necessarily disqualifying but they require a more detailed investigation to keep your clearance.

From your description of your student loan problems it sounds as if these loans are hurting your finance health and could cause a problem at your next security clearance renewal. Perhaps a voluntary restructure of your budget, other debts, and student loans with the help of a trained credit counselor would be the best way to convince a security clearance adjudicator that you are financially responsible.

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 – 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:

I complained about the cancellation to replace unsafe flooring to my Commanding Officer, as well as to OSHA, DODIG and my Senator. I was terminated after my complaints and 24 hours before my probationary period was finished. Is there anything I can do?

A:

The U.S. Office of Special Counsel might consider your case if you can show the activity that led to our removal was protected whistleblowing. In general terms, whistleblowing is the disclosure of a violation of law, rule or regulation, gross mismanagement, gross financial irregularity, abuse of authority or a specific threat to health or safety.

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 – Termination after Request for Reasonable Accommodations

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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 a targeted disability and qualified for Schedule A. I was terminated for poor performance from an entry level position during my probationary period after I asked for reasonable accommodations that would have helped my performance, but never received any.

What are my options?

A:

The issue in your case is whether the poor performance conclusion of your supervisors renders you unable to perform the essential functions of your job. If so, then you are not entitled to a reasonable accommodation. But, based on your description, I’m not sure that you are actually unable to perform your job’s essential functions with or without an accommodation. It is also unclear whether your conversion from competitive service to Schedule A had an impact on the important “essential functions” issue. If you are still within the 45-day window from the effective date of your separation, you might want to test this in the EEO process.

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 – Temporary Promotion

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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 moved from a nonsupervisory position to a supervisory position for about 10 months and then was returned to my original assigned position after my request. I have asked for temporary promotion pay. Should my agency pay compensation for the detail to a higher graded position?

A:

Because you served in a higher pay band on your detail and that would equate to a temporary promotion, it appears that your pay for that period of time was supposed to increase by a minimum of 6%, and up to 20% with management approval.  Your base salary then should have reverted to the salary of your permanent position upon termination of the detail.

Agencies are not required to officially document details under NSPS unless the detail exceeds one year, crosses component and/or agency lines, assigns an employee from NSPS to another pay system within the component (i.e., NSPS to General Schedule), or documents developmental rotational assignments or deployment.  Although NSPS does not require a detail to be documented solely because it goes beyond 180 days, individual components may have such a requirement in those circumstances and so you would need to check with yours.

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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