Ask The Lawyer

By Debra Roth

Q & A Session – Normal Commute Time Deducted from Travel Comp Time

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Is the deduction of normal commute time supposed to be deducted from compensatory time whether the travel is on a normal duty day or not?

A:

Yes, your normal home-to-work and work-to-home commuting time will always be subtracted from the amount of compensatory time you receive for official travel to/from your home to a temporary duty station.  5 C.F.R. § 1504(c).

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 vs. Compensatory Time

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I was told that when under continuing resolution status, we are unable to get overtime and must accept compensatory time instead. Is this correct?

A:

It may be legal depending on your circumstances. Some employees whose basic rate of pay exceeds that of a GS-10, Step 10 can be required to take compensatory time in place of overtime pay. Many agencies continue to offer overtime pay for employees above that rate, but it is discretionary and likely to be reviewed or changed when operating under a continuing resolution. This regulation can be found in Title 5 of the Code of Federal Regulations, Part 550.114 (c).

 

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 – Garnishment of FERS Annuity Retirement Benefits

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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:

Are FERS annuity retirement benefits subject to garnishment by the state court as a result of a civil verdict?

A:

That depends on the type of civil lawsuit. Generally, FERS benefits may not be garnished by state courts. This is explained by Title 5 of the Code of Federal Regulations, Part 838. There is an important exception to this rule though. Title 5 of the Code of Federal Regulations, Parts 581 and 582, permits state courts to order FERS garnishments in some cases concerning spousal separation, divorce, child support or child abuse.

However, your FERS annuity may be just one of several sources of income and assets you possess. Those other sources of income may be vulnerable in a wider range of civil verdicts.

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 – Compensation When Traveling on a Federal Holiday

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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 true that when a federal employee travels on a federal holiday, he or she is compensated with overtime rather than travel comp time?

A:

Yes, you are correct that a federal employee who is non-exempt from the Fair Labor Standards Act will be compensated with overtime pay when required to travel on a federal holiday.

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 – Compensatory Time for Contractors

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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:

Does the entitlement to compensatory tie while on official travel apply to contractors?

A:

Contractors do not receive the same rights and benefits as federal employees, as contractors are employees of the contracting company, not the federal government.

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 – “Usual Wait Time” for Travel Compensatory Time

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Is there a “usual wait time” definition for travel that consists of multiple sets of flights? I have heard that only two hours can be claimed, even if the person traveling has to wait for over 2 hours for the next flight. Is this correct?

A:

Pursuant to 5 C.F.R. § 1504(b)(1), time in a travel status includes the “usual waiting time that precedes or interrupts such travel,” and the “[d]eterminations regarding what is creditable as ‘usual waiting time’ are within the sole and exclusive discretion of the employing agency.”

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 – Compensatory Time for Travel in Different Time Zones

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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:

Which time zone do you use when you figure travel comp time involving one or more time zones?

A:

When determining the amount of compensatory time earned by an employee for official travel, the election of which time zone to utilize when selecting your travel start and end times is immaterial, as the employee should be compensated for the total sum of the amount of time spent traveling, regardless of which time zone that the calculations of that sum are based upon.

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 – FMLA Notice 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:

A private sector company has a “no-fault” policy regarding unplanned leave.  The company’s policies require an employee must call in at least one hour before the start of their shift.  An employee will receive an attendance “demerit” for the unplanned absence if they call in at least one hour before the start of their shift, but will receive both an attendance demerit and a write-up if they do not call at least one hour before.  If an employee does not comply with this policy and later informs the employer that the unplanned leave was FMLA, may the FMLA be disallowed and would he get an attendance demerit and/or write up?  May the federal and private sectors treat unplanned FMLA leave similarly?

A:

In the private sector, when the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable, and it is expected that absent unusual circumstances, an employee will be able to comply with the employer’s usual and customary notice requirements for requesting such leave, absent unusual circumstances.  29 CFR § 825.303. For example, an employer may require employees to call in at least one hour before the start of their shift in order to invoke FMLA leave in all but unusual circumstances.  An exception may where an employee requires emergency medical treatment and is unable to call in prior to the start of his or her shift. In that case, he or she would not be required to follow the call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. If no such unusual circumstances exist and an employee does not comply with the employer’s usual notice and procedural requirements, then the employer may delay or deny that employee FMLA-protected leave. 29 CFR § 825.303(c).

The extent to which a private employer may delay FMLA coverage for leave depends on the particular facts. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer’s policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.

An employer may waive employees’ FMLA notice obligations or the employer’s own internal rules on leave notice requirements. If an employer does not waive the notice requirements, the employer may take appropriate action under its internal rules and procedures for an employee’s failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the employee is aware of the FMLA notice requirements.

In the scenario above, if the employee calls in to take unscheduled FMLA leave less than one hour before the start of their shift and that employee cannot point to any unusual circumstances for why they did not comply with the employer’s notice requirements, the that employee could be written up for failing to follow the notice policy.  The employee, however, could not receive an attendance demerit for the FMLA-protected leave.

The FMLA regulations applicable to federal employers do not have similar penalties for failing to comply with an employer’s notice requirements for its employees relating to unforeseeable leave.  For federal employees, when the need for FMLA leave is not foreseeable, the employee shall provide notice within a reasonable period of time appropriate to the particular facts and circumstances surrounding the employee’s need for FMLA leave.  5 CFR § 630.1206.  If necessary, notice may be given by an employee’s representatives.  In any case, where the need for leave is not foreseeable and the employee is unable to provide notice of his or her leave because of circumstances beyond his or her control, the leave may not be denied or delayed.

 

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 – Retaining Former GS Pay Grade if Rehired

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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 terminated from federal employment a few years ago but am currently working for a company under government contract. My current position is about to be reclassified into a government position under the GS schedule. If I am hired for the reclassified position, will I be able to retain my former GS grade and/or step?

A:

No. If a former government employee is rehired by the government, he or she would need to be hired at the GS grade and step for the newly classified position.

 

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 Repayment

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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 employed with one federal agency (agency 1) and then quit to become an employee of another federal agency (agency 2). As an employee of Agency 1, Agency 1 made a direct payment to my student loans servicer in the amount of $10,000 pre-tax. I am now employed at Agency 2 and am being told by Agency 1 that I owe them for the student loan payment. Is this correct?

A:

The federal student loan repayment program permits agencies to repay federally insured student loans as a recruitment or retention incentive for candidates or current employees of the agency.  5 U.S.C. 5379.  Each agency is authorized to set up its own student loan repayment program.  An employee receiving this benefit must sign a service agreement to remain in the service of the paying agency for a period of at least 3 years. An employee must reimburse the paying agency for all benefits received if he or she is separated voluntarily or separated involuntarily for misconduct, unacceptable performance, or a negative suitability determination under 5 CFR Part 731.  5 C.F.R. § 537.107.  The service agreement may specify any other employment conditions the agency considers to be appropriate, e.g. duties expected to perform, level of performance.  The service agreement must contain a provision addressing whether the individual would be required to reimburse the paying agency for student loan repayment benefits if that individual voluntarily separates from the paying agency to work for another paying agency before the end of the service period.  5 C.F.R. § 537.107.  Whether or not such individual would be required to repay the student loan payment in such circumstances is left to the agency’s discretion.  5 C.F.R. §§ 537.107 and 537.109.

Therefore, in the above scenario, the individual should review the service agreement with Agency 1 to determine whether he or she owes them for the student loan payment Agency 1 made on his or her behalf.  In particular, you should review the number of years that were agreed to remain in the service of Agency 1 and whether he or she would be required to reimburse Agency 1 the student loan benefit if the employee voluntarily resigned from employment before the agreed-upon service years had elapsed.

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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