Ask The Lawyer

By Debra Roth

Q & A Session – Overtime Pay 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:

I work Friday through Tuesday with Wednesday and Thursday off each week. I was required to attend a two-day meeting on my days off. I was told I would get paid overtime, however, instead of working 12 days straight, I decided to request leave for two other days. I was then told I would only get paid regular time if I took leave. This this correct?

A:

An employee generally is entitled to overtime pay for work in excess of 40 hours in an administrative workweek.  Assuming this employee was a non-exempt employee eligible for overtime, whether he was entitled to overtime for the two day meeting depended on what type of leave he took on those two other days.  An employee’s absence from duty on authorized leave with pay, e.g. used some of his annual leave, during the time he would otherwise have been required to be on duty during a basic workweek is deemed employment and does not reduce the amount of overtime pay to which that employee is entitled during an administrative work week.  5 C.F.R. § 550.112.  However, if the employee took leave without pay, then an equal period of service performed within the same administrative workweek shall be substituted and paid for at the rate applicable to his basic workweek before any remaining period of service may be paid for at the overtime rate.  Id.

 

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 – Maintaining Security Clearance

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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 exploring starting my own consulting company. I currently hold a TS/SCI and would need to maintain a minimum SECRET clearance in my new role. How can I maintain my clearance without setting up a Security Office?

A:

Prior DOD adjudicative determinations for appointments in sensitive positions or access to classified information, including those pertaining to SCI, will be mutually and reciprocally accepted by all DOD agencies without requiring additional investigation unless there has been a break in the individual’s employment greater than 12 months or unless derogatory information that occurred subsequent to the last prior security determination becomes known.  32 C.F.R. §154.25.  Therefore, so long as the consulting company obtains a contract for services that requires a clearance less than 12 months after this individual’s departure from his prior employment and nothing negative about this individual has come to light, it will not be necessary for him to be reinvestigated.

Whether a Security Office is needed appears to depend upon the structure of this individual’s consulting company.  Typically, after a security determination has been reached, an individual’s trustworthiness is continually assessed by both the government and by the individual’s supervisor and the organization’s command.  32 C.F.R. § 154.60.  Management is required to ensure that employees assigned to sensitive duties are initially indoctrinated and periodically instructed thereafter on the national security implication of their duties and on their individual responsibilities.  Id. Additionally, along with individuals receiving clearances, a DOD contractor’s facilities must also be approved for security clearances, a facility clearance (FCL).   These responsibilities generally are assigned to a company’s Security Office, as noted by the questioner.

The DOD Defense Security Service, Industrial Security Program Office addressed the security clearance and facility clearance issues for self-employed consultants in an April 16, 2003, Industrial Security Letter issued to the public.  The Industrial Security Office stated that cleared contracts may process self-incorporated consultants for a security clearance provided the consultant and members of his/her family are the sole owners of the consultant’s company and only the consultant requires access to classified information.  Additionally, in these cases, a FCL is not required.  However, should other employees of the consultant’s company require access to classified information, that would constitute a classified subcontract and as such, a DD Form 254 (a DOD Contract Security Classification Specification) must be issued by the prime contractor and the consultant’s firm would require a FCL.  In these cases where a company has multiple employees with access to classified information and must meet the standards of a FCL, a stand-alone Security Office may be the most efficient method for handling the necessary security needs of the consulting company.

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 – Disciplinary Records and Privacy Act Violation

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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 a violation of the Privacy Act if an employer discloses information regarding an employee’s disciplinary file, especially if it false?

A:

The Privacy Act prohibits unauthorized disclosure of private information contained in a system of records. It also requires that records be maintained with accuracy. If you believe the employment reference check form is inaccurate and assuming it exists in a system of records (which it probably does), the Privacy Act provides a means to correct the inaccuracy.

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 – Lying During an Investigation

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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 involved in an investigation a few years ago and no wrongdoing was found. However, I later obtained documents that showed the agency lied during the investigation. I reported this to the original investigator and the IG office and GAO. Is it ethically okay for an agency to lie during an investigation?

A:

The short answer to your question is that it is not permissible to lied during an investigation. I gather from the information you provided that there is a disagreement between you and others about whether you have actually shown a basis to investigate a lie. You have inquired and sought relief in all the right places. If these offices will not help, I do not believe you have an additional remedy.

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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Keys to avoiding sexual harassment complaints

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Sexual harassment in the workplace is illegal, but that was not always the case. In the late 1970s, the judicial system began to provide meaningful remedies for those who were subjected to unwelcome sexual pressures or conditions related to their jobs.

Today, though sexual harassment’s prevalence seems to have diminished, it has not been eliminated. There are still piggish bosses and boorish co-workers.

The Equal Employment Opportunity Commission defines sexual harassment as: “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature … when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

This definition has resulted in the creation of what are commonly referred to as “quid pro quo” sexual harassment and “hostile work environment” sexual harassment.

The quid pro quo type of harassment implies a request for sexual favors that is unwelcome and is either granted or denied. If denied, quid pro quo also implies some type of retaliatory action because of the denial.

In hostile work environment sexual harassment, off-color jokes, sexual comments, unwanted touching, requests for dates and lewd pictures have all been depicted as possibly making up a hostile work environment.

The Supreme Court has held that all of these actions can constitute a hostile work environment as long as the offensive and sexual behavior is severe and pervasive. So, a one-time comment or request for a date might not be enough to establish hostile work environment sexual harassment. But, if the request for a date is rejected and then followed by an adverse job consequence, quid pro quo sexual harassment may have occurred.

If a boss has a sexual relationship with a willing subordinate, this is not necessarily sexual harassment, although just because a subordinate is “willing” does not mean the sexual activity with the boss is welcome. Assuming that the sexual activity is welcome, the supervisor is not off the hook because other employees may consider the boss’s paramour to be receiving special favors because of the sexual relationship. In such a case, the other employees, who have not been sexually harassed, may still have a claim for gender discrimination.

In any event, willing and consensual sexual relationships with subordinates are never a good idea. This is true not only because others may complain about unfair treatment, but also because the relationship may sour and the boss may then be subjected to a claim that the relationship was coerced and unwelcome, although it may have appeared for a time to be willing and consensual.
Victims may be men or women. Sexual harassment can occur even when the victim and the harasser are the same sex so long as the victim can show that he or she is being harassed because of his or her sex.

Because of the 1998 Supreme Court decision in Faragher v. Boca Raton, employers have taken steps to reduce their liability for sexual harassment by establishing policies to prevent sexual harassment.
The employer must have a legitimate complaint and anti-retaliation system. Employees must be encouraged to file complaints if they are victimized. Potential victims must receive meaningful assurances of no retaliation, and the investigation of the complaint must be prompt and thorough. These steps might relieve an employer of liability even when the organization has employed a supervisor who is guilty of sexual harassment.

Managers who are accused of sexual harassment may find themselves detailed for the period of the investigation, even for a complaint that is found to be unfounded. Higher-level managers must pursue all complaints of sexual harassment, even if the victim is just venting and does not want to file a complaint.

These are the basics. They can be summarized for managers: Do not touch subordinates. Do not ask a subordinate out on a date. Do not tell off-color or sexual jokes. Investigate allegations concerning subordinates. Remember that sexual harassment is a serious and potentially career-ending offense.

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 – Challenging a Downgrade

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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 a desk audit at my agency, I was downgraded a GS grade but my pay was not affected. However, I have asked HR to furnish me with the findings that justified this change but have been ignored. How do I get the information I need to appeal or challenge this action?

A:

You can file a Freedom of Information Privacy Act request for the information. You might not receive information concerning other employees because of privacy rights, but you will receive information about yourself.

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 – Annual Leave as Lump Sum

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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 an involuntary separation, I wanted to use annual leave for my last five weeks after my last day on the job. However, I wanted my annual leave spread out, rather than in a lump sum to preserve my health benefits for as long as possible and extend my service for retirement purposes. Is there a rule that says you have to have a lump sum or can I have it spread out over weeks?

A:

You can take annual leave for your last five weeks, if the leave is approved. If the leave is not approved, you are stuck with the lump sum payment.

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 – Salary Cap Differences

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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:

In my agency, I have reached the salary cap. However, I recently found out that another agency has a higher salary cap. Why would these differ?

A:

Congress can do this and often does. For example, at the SES or equivalent pay level, Congress has created at least 88 different pay systems, many with different caps and some with no caps.

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 – Arbitration Award

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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:

How does a federal employee force an agency to honor an arbitration award? Is there any timeframe they must adhere to?

A:

If you went to arbitration, it was because you are in a bargaining unit and are represented by a union. It is up to your union to enforce the arbitration award. Your union has tools by which to do this, including the filing of an unfair labor practice charge.

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 – Disrespectful Manager

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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 remedies are available when a manager is disrespectful, rude or mean to a subordinate supervisor? I have read your columns on disrespectful behavior in the workplace, are there similar rules for management?

A:

The answer to the second question – are there similar rules for management – is yes, although a supervisor might be granted some leeway in dealing with a difficult or recalcitrant employee. If the subordinate is disrespectful, work with HR to figure out how to document the misconduct and start the disciplinary 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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