Ask The Lawyer

By Debra Roth

Q & A Session – Permissible Outside Consulting Work

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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 being asked by a company to provide part-time consulting on logistics issues. Would I be within the rules and regulations guidelines to perform these services?

A:

This question needs to be answered by your designated agency ethics official (DAEO), who is in a position to advise whether the proposal outside employment is a conflict of interest or otherwise impermissible. If a DAEO says it’s okay, you can legally do the outside activity. If not, at least you tried. DAEO’s in most agencies are found in the General Counsel’s Office. When making your request, please be sure to include all pertinent information.

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.

Q & A Session – Promotion held up by 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 have been employed by an agency for a number of years and for the last three years I have applied for several promotions which were denied due to an open investigation levied against me. Is this legal or is it a form of discrimination?

A:

Promotions are often denied because of an open investigation. It is not illegal, but it is not a specifically permitted practice. It can be discrimination if the practice is applied disproportionately to minorities or women or if it is done to retaliate for prior EEO activity.

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.

Q & A Session – Veterans’ Preference with Internal Promotions

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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 veteran and feel that agencies can discriminate against veterans by choosing to post a job “internal” to the agency, which allows them to skirt the veterans’ preference rules. Can I take action to ensure they follow hiring regulations?

A:

Veterans’ preference does not apply to internal promotions, when that is the hiring authority used. If a different hiring authority that includes outside applicants is used, an agency does not have to make a selection. Those are well-established rules. An agency may not simply ignore veterans’ preference in making a selection if the job opportunity is open to outside applicants. If you think your rights have been violated, you may file a claim with the Secretary of Labor under the Veterans Employment Opportunity Act (VEOA). VEOA claims are ultimately appealable to the Merit Systems Protection Board.

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.

Q & A Session – Proposed Removal and Effects on TSP, Retirement

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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 friend who may be fired from federal service. She has a total of 26 years of service and is 56 years old. If she receives a proposed removal, should she resign immediately? Also, will she lose her retirement eligibility and what happens to her TSP account?

A:

This person could resign immediately, but if she is FERS, she would have to take a reduced annuity. If she is CSRS, she has to wait until age 62 for a deferred annuity. The TSP account is not affected, but early withdrawals from a TSP (prior to age 59 ½) are made with a 10% penalty.

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.

Q & A Session – Slander and Privacy Act

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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 former supervisor told my current employer I am a “troublemaker” and that I had received numerous counseling letters, which is not true. Did my former supervisor slander me?

A:

Slander is a tort, but under the Federal Tort Claims Act and Supreme Court precedent, your supervisor is immune and your agency cannot be sued for slander. You may have a claim under the Privacy Act if there was an unauthorized disclosure of information contained in personal files about you.

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.

Q & A Session – Working a Paid Job while on Paid Admin 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:

A federal employee coworker of mine is on paid administrative leave but is also working for a contractor and getting paid by the contractor. Is it legal for the employee to get paid for administrative leave but also work another job and get paid?

A:

What you have described is probably not legal. I can conceive of a circumstance where the contractor work is done outside normal duty hours or the contractor work is not done for the government or there is an outside activity request that has been approved. These extra facts might make the contractor work permissible. It is important to have all the facts when making a judgment.

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.

Q & A Session – Number Supervised

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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 legal if a supervisor has only one or two employees to supervise?

A:

Yes. There is no rule against this.

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.

Q & A Session – Age Discrimination

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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 a former logistics management specialist in my agency left, the decision was made to fill the vacancy with a female with no logistics management experience. I have spent 3 years as a supervisory logistics management section chief. This woman is considerably younger than me and is coming from an area outside of my branch, and I feel like I am being discriminated against due to my age. What rights do I have in this situation?

A:

Age discrimination is against the law. You can use the EEO process to air your complaint. In most cases you have only 45 days to start the process, but that time limit in an age discrimination claim can be longer (but not if you want to use your agency’s administrative EEO process). Age discrimination claims can be harder to prove than other types of EEO and you may want to get legal advice before taking the big step of filing 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.

Q & A Session – Accepted a Lower 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:

I am currently a GS 6 step 6 level. I have recently accepted a position where I can move up to a GS 7, but will have to begin as a GS 5. They want me to start as a GS 5 step 7, but my current pay is comparable to a GS 5 step 10, so my annual pay will be lower. Can you explain why this may be?

A:

You don’t have to accept the position. Sometimes you have to take one step back to take five steps forward. It is a calculated, careful decision you should make about your opportunities.

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.

Law softens difficulties of late-career moves

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In 2009, when the Senior Executives Association did its survey of GS-14s and -15s about their interest in aspiring to senior executive positions, the threat of geographic reassignments was cited as one of the major detractors. (The survey report, “Taking the Helm,” can be downloaded at www.seniorexecs.org.)

While the Senior Executive Service was created with the idea of mobility among its members, the reality of geographic reassignment varies from agency to agency. For example, the IRS expects all of its senior executives to be subject to geographic reassignments, and for the most part they are. In some agencies, senior executives are never geographically relocated. Other variables are whether the moves are voluntary, directed for legitimate business reasons, or used as a hammer to force the resignation or retirement of a senior executive who is not in a position to move and whom the agency is trying to force out.

Recognizing that senior executives are vulnerable to unwanted reassignments, particularly late in their careers, the Senior Executives Association lobbied for, and Congress enacted, a statute that provides a benefit to senior executives that is designed to lessen the harshness of a geographic reassignment. The law is referred to as “last move home” and permits a senior executive to be relocated at government expense when he retires from government service. The benefit has some limitations.

First, relocation expenses are limited to transportation expenses of the individual, his or her immediate family and the shipment of household goods. Other types of relocation services, such as move management services or guaranteed home sales, are not available as part of the last move home benefit.

Second, to be eligible for last move home, the senior executive must be a career appointee in the Senior Executive Service and must, at the time of the reassignment, be eligible for optional or discontinued service retirement, or be within five years of eligibility for optional retirement.

Also, the senior executive must be eligible to receive an annuity when the separation from service occurs. If the senior executive dies in service, the last move home benefit is available to the senior executive’s surviving family members if, at the time of death, the senior executive qualifies for an annuity.

It does not matter how the geographic relocation is categorized. The last move home benefit is available to a senior executive who is geographically reassigned within the time limits outlined above.

Also, the last move home does not have to be back to the original location. It can be anywhere in the U.S., its territories or possessions.

These requirements mean, for example, a senior executive from Washington, D.C., can be reassigned to San Francisco at age 50 with 20 years of service (this meets discontinued service requirements), can work until age 60 (an age at which a full annuity under the Federal Employees Retirement System could be received), and then can be relocated at government expense to Honolulu. The only requirement is the place where household goods are shipped — up to 18,000 pounds — be the executive’s new residence.

A retiree is not required to be eligible for a full annuity — just an annuity — to receive last move home upon separation from service. Civil Service Retirement System employees who leave before age 55 are subject to a 2 percent per year reduction in penalty for each year under 55. FERS employees can retire before reaching full retirement eligibility with a reduction in their annuities for each year under age 62. This reduced annuity does not negate last move home eligibility, so long as the annuity is available on separation.

The practical impact of the last move home benefit has been that agencies are more careful before ordering a reassignment for punitive reasons or for forcing a resignation or early retirement. The availability of the last move home benefit means a future, large expense for an agency. It is an obligation that should only be made for legitimate business reasons.

The frequency of capricious reassignments has declined. That, and the availability of the last move home benefit, should provide some comfort and encouragement for the GS-14 or GS-15 who sees the increased mobility of the SES as a detraction to applying for SES opportunities.

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.