Ask The Lawyer

By Debra Roth

Q & A Session – Backdating PAR

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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:

Recently, my supervisor produced a PAR for me on or about May 14, 2010 and backdated the PAR to October 22, 2008. I was not given the opportunity to sign, nor informed the PAR was placed in my personnel file. Is this considered falsifying official government documents?

A:

This question is difficult to answer without more information. The real issue presented, however, is whether—even if you can prove backdating to the point of it being a false document—anyone would care about it. What is the issue that makes the backdating of your PAR important? If it is evidence in an EEO case, you might get some mileage out of a backdating/falsification argument. Otherwise, you might experience a lot of blank stares and disinterest.

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 – FEHB Coverage and FMLA When Furloughed

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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 the government shuts down, would furloughed employees retain their Federal Employee Health Benefits coverage? If a federal employee were on FMLA leave during a furlough, would the time on the furlough be deducted from the leave time? Can a federal employee use accrued paid leave during a furlough?

A:

In the event of a government shutdown, the Office of Personnel Management has assured employees that even if they are furloughed, they would remain covered by the FEHB program. OPM also explains that no FMLA leave will be deducted for time spent on furlough; instead all leave taken during a furlough will be credited as furlough time. Federal law generally prohibits an employee from taking any paid leave during a furlough because it creates a debt not authorized by the Antideficiency Act (31 USC 1341 et seq.), and employees would not accrue additional leave time while on furlough.

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 Eligibility

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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 a federal employee have to work for the same agency for 12 months in order to be eligible for FMLA? Could previous military service be considered for the 12-month requirement?

A:

Yes, federal employees must have 12 months as an employee. Prior military service does not count.

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 – Douglas Factors and Unauthorized Use of Computer

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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 you provide a complete analysis of the Douglas factors from a case concerning unauthorized use of a computer system?

A:

The Douglas factors are a list of twelve issues which are widely used in determining the appropriate penalty for the non-criminal misconduct of a Federal employee. They are named for the case in which the factors were first outlined, Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981).

The Merit Systems Protection Board has issued several decisions regarding unauthorized use of a computer system which may prove useful to you. Morrison v. N.A.S.A., 65 M.S.P.R. 348 (1994), discusses several Douglas factors in determining the penalty for an employee who stored explicit images on his government computer. In a second case, Biniak v. Social Sec. Admin., 90 M.S.P.R. 682 (2002), the MSPB reviewed several Douglas factors relating to a case of an employee who used a government computer system to run a private financial planning business.

Also, check out the Ask the Lawyer column titled “Weight Douglas Factors in Disciplinary Cases” at: http://blogs.federaltimes.com/federal-law/2011/01/09/weigh-douglas-factors-in-disclipinary-cases/.

 

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 – Answering Employment Questions After Clean Record Settlement

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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 an individual was removed from federal service, appealed the action to the MSPB and accepted a “clean record” settlement agreement in exchange for voluntary resignation, how does that individual legally and honestly answer some of the questions found on legal documents? For example, some of the questions ask if anything has happened in the last five or seven years and lists such things as: “left my job by mutual agreement following allegations of misconduct or unsatisfactory performance” or “quit a job after being told you’d be fired.” Do I have to respond yes to these?

A:

The answer to all of these questions on the cited federal forms is yes, with an explanation. Failure to disclose the prior removal, even though it has been settled, could be viewed as a false statement and could be the subject of a criminal prosecution.

 

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 – NSPS Conversion to GS Misclassification

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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:

To took a promotion to the GS system out of the NSPS system. I was assigned step 1, which is not where I would have been if I had remained GS throughout my career. This affects my CSRS “high three” computation, as well as my final years of federal service. The Merit Systems Protection Board said they had no jurisdiction in 2008 and the Office of Special Counsel concurred. What are my options?

A:

Because your case has been fully litigated, I doubt you could relitigate it as class action. Generally speaking, there is not remedy beyond an agency or OPM classification appeal for an equal pay claim based upon a misclassification or an argument that is based on a misclassification. The obvious exception is an EEO claim. Generally speaking, merit system principles are not self-executing. Instead, one has to challenge a law or rule that implements a merit system principle. Even then, that’s not all you have. Most likely, you are at the mercy of the prosecutorial discretion of 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 – Federal Employee Consultant for Another Agency

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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 there any rules prohibiting a federal employee from being compensated as a consultant for another agency where they do not work if the work is done on their off hours or during annual leave and is not a conflict of interest?

A:

There are not necessarily rules prohibiting such work, but such arrangements can be heavily regulated and conflicted. Contact your designated agency ethics official with full information about what you plan to do. The DAEO’s decision is controlling.

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 – No Accidents Objective

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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 am evaluated using the Total Army Performance Evaluation System and one of my objectives is to have no accidents. If I do, I am supposed to receive a less than successful rating on that objective. Doesn’t this discourage employees from reporting accidents and getting compensation available to them?

A:

Base on the interpretation provided by the Federal Circuit Court of Appeals, performance standards may be written to expected perfection, but they cannot be applied to fire someone who has only a simple lapse in his or her performance standard.

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 – Collective Bargaining Agreement

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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 base was part of the new BRAC law regarding joint baseing and three similar unions were transfer into one new joint base organization. We currently have three CBAs and were advised by the employer that they will no longer stand. Aren’t the current CBAs or past practices and policies still in place until a new agreement is reached?

A:

Your unions have staff to deal with the intricacies of the labor law issues. Generally, a collective bargaining agreement remains in effect even after it expires until a new CBA is negotiated. Generally, past practices are coordinated with the CBA and can often be changed with notice and impacted and implementation bargaining. I see the potential for conflict, overlap and duplication in the circumstance you describe. Common sense and a lot of hard work by management and labor is the only answer.

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 – Leave Without Pay Duration

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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 am excepted service and was placed in leave without pay status by the USPS about six months ago. I’ve been given no news from the agency. How long can LWOP last and what are my options?

A:

If you’re a full-time permanent employee, forcing you to an LWOP status could be an illegal suspension. However, your collective bargaining agreement may also shed some light on your status if you are in a bargaining unit. Without more information about your status, I cannot say more about the legality of your current pay status.

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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