Ask The Lawyer

By Debra Roth

Q & A Session – Postal Service Time to VA

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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 a former employee with the Postal Service, but am now working for the Veterans Administration. Will my time with the Postal Service carry over to the VA?

A:

Postal service time counts towards retirement. It does not count for the probationary period.

 

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 – Letter of Requirement

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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 federal employee with use or lose annual leave and 1200 hours of sick leave was out sick for two weeks and then four days at two separate times during a calendar year, both supported by medical documentation stating “this patient is under my care” with appropriate dates. However, they were placed on a letter of requirement even though they hadn’t been charged AWOL, had a negative leave balance and had used advanced leave. Is this correct?

A:

Yes. This is allowed if someone has a pattern of unscheduled absence and their presence at work is needed. A pattern is as few as two and any federal employee with a current job should be needed at work. The letter of requirement does not mean you are an abuser. It just means you have to have medical documentation for an unscheduled absence. “This patient is under my care” is inadequate medical documentation to show the level of incapacitation required to justify the approval of an unscheduled sick leave absence.

 

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 – Refused Sick Leave to Care for Sister

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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 recently refused sick leave under FMLA to care for my sister who is suffering from breast cancer and severe depression. I have also appealed the refusal to my manager’s supervisor. Can they do this?

A:

“Sister” is not a covered relationship under the Family and Medical Leave Act (FMLA). To be covered, the relationship must be a spouse, parent or child. FMLA generally must be requested in advance or if impracticable, within 2 days of returning to work.

 

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 – Dating a Subordinate

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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 wrong for a supervisor to date or have a relationship with a subordinate? Can a supervisor rent a room to that same subordinate?

A:

Please review my column on sexual harassment in the federal workplace with a paragraph on dating subordinates.

While the situation you describe is not per se illegal if the relationship is willful, it may: 1) Violate agency rules against relationships with or dating of subordinates; 2) Create a claim of discrimination for the other women in the office; and 3) Raise favoritism issues that could constitute a prohibited personnel practice.

 

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 – Forced to Take Leave or Credit Hours

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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 a GS-11 on a flex schedule. My schedule varies but I am supposed to work 80 hours per paid period. I have been told that if I do not perform 80 hours of work, I should use credit hours or leave to complete the 80 hours. Sometimes the way my schedule works out, I’m left with less than 80 hours. Is this legal?

A:

If you are a full-time employee, you are supposed to be given 80 hours of work in a pay period. There are ways around this using furlough authority, but it does not sound like that was done in your case. Credit hours might be permissible depending on your credit hours system. Your agency cannot force you to take leave, but you can agree to it.

 

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 – Veterans Preference for 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 am a current permanent federal employee under FERS, and I am also a disabled veteran. I have applied for a higher position within my current department. Am I still eligible to receive a 10 point veterans preference for the new position?

A:

Veterans preference applies to initial appointment and reductions-in-force. It does not apply to internal promotions. Veterans preference may apply to a prevent a non-veteran from being hired ahead of you for a position for which you are qualified if the vacancy announcement and hiring authority used seeks outside candidates.

 

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 – Coworker in Performance Appraisal

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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 had the understanding that performance appraisals are always done one-on-one with my supervisor and that all appraisals are considered private. My current supervisor wants our team leader to sit in on the performance appraisals even though she has no supervising authority. I believe they may claim the exception “the information is disclosed to an agency employee who maintains the record or has a ‘need to know’ in the performance of his duties.” Is this legal?

A:

You have answered your question by citing the exception. Team leaders are technically not supervisors but they do direct work. Therefore, there is at least an argument that they have a need to know about their team members’ performance assessments.

 

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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Preparation crucial when facing Congress

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Both chambers of Congress exercise oversight responsibility over executive branch agencies. Lately, it seems there are more oversight hearings, with career employees sometimes being called into the hot seat. It can be a scary proposition because of subpoenas, large hearing rooms, written and oral testimony, reporters and perhaps other unfamiliar occurrences.

A positive oversight experience requires coordination, preparation and candor. Most of all, the process must be taken seriously. Congress eventually will either get the information it wants, or it will make the career federal employee very uncomfortable.

First, assess whether the inquiry concerns a program review or personal exposure. If you believe you have exposure because of some specific act or omission, or which might make your agency so unhappy that it could propose discipline, take special care. Visit the general counsel’s office to determine the tone and nature of support you have. It is almost always better to be a part of the agency’s team in responding to Congress. If you are unsure whether you are on the team or you fear personal exposure, take protective steps, including seeking private legal advice.

In extreme cases, you could have exposure to criminal prosecution. Criminal exposure could require the careful exercise of constitutional rights. This should only be done with the advice of counsel, and your agency’s general counsel is not in a position to provide such representation.

If the oversight is about a program or a political appointee, you still need to be careful. A program review gone bad can reflect poorly on you. A political appointee who appears to be under scrutiny may look for a vulnerable scapegoat.

You will probably learn of an oversight inquiry from your agency’s legislative affairs office. If not, call that office right away. Don’t make a move on the inquiry without coordinating with legislative affairs and make sure that office puts everyone in the loop. Contact the general counsel’s office. If the matter has previously been examined by the agency’s inspector general, make sure that office knows. It will help with preparation for the hearing, and it will avoid any big mistakes.

You must then prepare. Read everything. Anticipate everything. Learn what the other side is saying and prepare responses. Congressional hearings are relatively short, and you want to take advantage of the limited opportunity to make the best impression.

Try to have your legislative affairs office, general counsel’s office and any relevant program offices work together to prepare the presentation, anticipate questions and develop appropriate answers. Research and data that is responsive to the oversight must be complete and accurate.

Learn about the committee members. What are their interests? Which constituencies will the member most likely respect? Has the member had a concern about the issue under review? Develop your testimony to assure it is as helpful as possible, to the agency and the oversight committee.

The legislative affairs office should know about rules and practices of the committee that wants your testimony. How many copies of testimony are to be printed? How many minutes is the opening statement? These questions should be answered before any formal responses are given to the committee.

The surest way to lose is to fail to be truthful. That said, there is more than one way to give a truthful and complete answer. Care should be taken to assure that truthful answers present you and your agency in the best light.

Congressional hearings are also platforms for Congress members to make statements to their constituents. If it appears the member is only using the hearing as a means to state his opinion, a response is not necessarily required.

Expect follow-up questions. Also, many who testify before Congress promise follow-up information. Make sure questions are answered, and information is provided in a timely manner.

Work with the legislative affairs experts and you will make the best of congressional oversight, an experience that is not meant to be pleasant or necessarily career-enhancing.

Q & A Session – Denial of 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 am a GS-9 and I was denied a promotion to a GS-11. However, how much of the GS-11 position description do I need to be performing to demonstrate I am working at the next level?

A:

To receive a career ladder promotion, you must demonstrate the ability to perform at the next higher level. If you are believe you are the victim of illegal discrimination, you of course may file 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 – Lower Grade in Acting Position Over Higher Grade

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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 an employee of a lower grade be assigned in an acting position over an employee in a higher grade?

A:

Yes. I know of no rule that prevents this. The wisdom of such an action is another question.

 

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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