Ask The Lawyer

By Debra Roth

Managers should be wary of running afoul of No Fear Act

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The 2002 No FEAR Act is supposed to hold managers accountable for equal employment opportunity violations and make federal employees more aware of their EEO and whistle-blower rights.

Managers should be aware of and wary of the No FEAR Act — the Notification and Federal Employee Antidiscrimination and Retaliation Act — and its requirements. Numerous provisions of the law are potential land mines for managers. For example, the law requires agencies to report to Congress annually about violations of anti-discrimination and whistle-blower reprisal laws, including such information as the number of offending managers who were disciplined, the nature of the discipline and the agency’s policy about taking discipline against managers who are found to have discriminated or retaliated against their subordinates.

This alone makes the threat to federal managers very real, but the rate of actual disciplinary action because of discrimination or reprisal seems low. This causes managers to relax a little too much and to not take seriously the threat of discipline because of the No FEAR Act. The cultural change that was supposed to have occurred because of No FEAR has simply not occurred.

This creates frustration and statements of outrage from civil rights groups who believe that managers regularly discriminate, but are almost never held accountable. The result of this pressure means that agencies will begin to take findings of discrimination in EEO cases seriously and may look for a manager to be a scapegoat.

The following is a brief list of the requirements of the No FEAR Act:

• Employees must be notified annually of their rights under anti-discrimination and whistle-blower protections statutes. Employee training must occur every two years.

• Any EEO judgments or settlements of EEO cases in federal court must be repaid by the agency to the Justice Department-administered Judgment Fund. The payment of a large settlement or jury verdict because of your management action will undoubtedly cause scrutiny by agency management.

• Annual reports must be submitted to Congress and the Office of Personnel Management detailing information about EEO cases in court, payments out of the Judgment Fund, the number of managers disciplined and the type of discipline and a detailed description of an agency’s disciplinary policy.

• OPM is obliged to develop best practices for disciplining managers who discriminate or retaliate. These best practices have been issued with advisory guidelines.

An examination of these advisory guidelines results in the unmistakable conclusion that agencies are under more pressure to pay attention to and make decisions about disciplining managers who have findings of discrimination.

The guidelines require the disciplinary process to address conduct inconsistent with anti-discrimination or whistle-blower protection laws and to ensure procedures are in place to promptly inform higher-level management of employee misconduct. This means that if you are a front-line manager who has a finding of discrimination against you or if a significant settlement of an EEO case occurs, a process should exist to make sure that someone at a higher level of authority will know about it. The guidelines specifically provide for the EEO office to be able to report what it believes to be potentially troublesome conduct.

Most managers think of the No FEAR Act as a law that mandates certain action or consideration if there is a finding of discrimination that requires repayment of the Judgment Fund. The relatively low number of EEO cases that go to federal court may have lulled many into a false sense of security. There is much more to No FEAR than just the Judgment Fund reimbursement. Congressional reports and advisory guidelines on discipline of managers are designed to change the culture. Change in whistle-blower reprisal laws pending in Congress may further increase the exposure of managers to disciplinary liabilities.

No FEAR means that managers should pay attention during their periodic No FEAR training and receive other training on how to avoid retaliatory conduct. This, and maintaining a mission-focused response to problem employees, will keep No FEAR goblins at a safe distance.

 

Accommodations for disabled should involve employee, manager, experts

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Providing reasonable accommodations for employees with disabilities is a legal obligation for federal agencies, and every manager should understand how reasonable accommodation requests are processed. Not only is accommodating disabilities the “legal” thing to do, it provides a valuable source of capable, motivated employees who would not otherwise be able to work.

In general, managers should be aware that agencies have a reasonable accommodation policy. That policy should be consulted and followed whenever a disability/reasonable accommodation issue surfaces in the workplace. Managers should also be aware that the law on disability is complicated and is evolving. The Equal Employment Opportunity Commission’s recent regulations on the Americans with Disabilities Act expand the universe of who is disabled and what disabilities must be accommodated. Accommodating a disability is best handled by the manager as part of a team that includes legal, EEO and human resources.

The when, where, what, why and how of reasonable accommodation:

When: A disability must be accommodated when an employee has a physical or mental disability that is shown to exist by medical evidence. The disability must interfere with a major life function.

A reasonable accommodation need only be provided to a qualified disabled employee, which is an employee who, with or without the accommodation, could perform the essential function of the job without endangering himself or others. An agency does not have to provide an accommodation if it can show that to do so would impose an undue hardship on its operations.

Current law has an expansive interpretation of what it means to interfere with a major life function, defined broadly as everything from walking and seeing to thinking and getting along with others.

The general rule on undue hardship is that cost is not a factor. It is, however, an undue hardship for an agency to create a job for a disabled employee or to displace another employee to accommodate someone who is disabled.

Where: Telework is a great accommodation for the disabled. It is frequently granted to disabled employees who can work effectively from home, but for reasons related to the disability have difficulty getting to the office. Accommodating a disabled employee is not limited to the confines of a general telework policy, and an agency may authorize additional telework for a disabled employee, so long as the employee can still perform the essential function of the job while on telework.

What: The list of accommodations is expansive and includes job modifications, part-time schedules, reassignments, readers and interpreters.

One of the best sources of assistance for federal managers in accommodating the disabled is the Defense Department’s Computer/Electronic Accommodation Program (CAP). CAP provides free training and assistance for electronic and computer equipment to accommodate the disabled. Its website, CAP.mil, has a wealth of options on how to accommodate a disabled employee.

Why: A failure to accommodate a disability when there is a legal obligation to do so is a violation of EEO law and can lead to EEO damages and accountability.

More important than the EEO hammer is the positive impact that results from having a productive and capable employee who is disabled but needs help to get to work or accomplish his or her duties.

How: Accommodating a disability involves the disabled employee, the manager and agency experts. As mentioned above, there is an agency procedure that sets out this process. The determination of whether and how to accommodate a disability takes place by this process. At a minimum, the process should include a means of receiving and evaluating medical evidence concerning the employee’s disability.

Finally, do not be afraid to ask for help. The rules on accommodation have shifted in favor of the disabled and deserve careful consideration.

Q & A Session – Charging Annual 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 am a Federal firefighter.  We work 72-hour shifts.  Usually when I go Temporary Duty (TDY), I do not need to report to work the day of my return.

Recently, a co-worker was sent TDY to a training class for several weeks.  When he returned, his shift was working and he was told that he would have four hours to return to work or else he would have to take annual leave.  He was charged for 12.5 hours of annual leave.  Can the Agency do this?

A:

It is difficult to give an exact answer without understanding the details of the travel time, the number of compensable hours your colleague had worked that week and other related factors.  You likely work under a collective bargaining agreement, and the agreement may govern situations such as the one you describe.

I have seen the firefighter regulations in Fair Labor Standards Act (FLSA)– the email appears to contain far too few details to answer the question.  There are complex formulas regarding the number of hours worked that month to consider, exclusions which say training for certification purposes are not considered work, and so on.  There are no special rules regarding travel time that I notice except for travel time used to respond to emergencies (firefighters from Maryland traveling to help put out wildfires in Texas, for instance).

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 – Refusing to Sign 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 was rated “effective” in a performance appraisal done last year and was prevented from receiving a performance bonus from the bonus pool. Can an employee refuse to sign a performance appraisal if he does not agree with it?

A:

I think it is unwise to not sign a performance appraisal, even if you do not agree with it. Your signature merely acknowledges that you have received the appraisal. You still have grievance and Equal Employment Opportunity rights. Sometimes a refusal to sign can be perceived negatively by a grievance deciding official or an Equal Employment Opportunity Commission administrative judge.

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 – Compensation for Flight Layovers

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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:

One of my subordinates was on a temporary duty assignment for training.  On his return flight, the employee missed his connection, even though the layover was nearly an hour and a half long.  The next flight to his original destination did not leave for nearly seven hours.  Therefore, the employee requested and the Agency authorized an alternate flight, which approximately three hours later.  Is the employee to be compensated for the four and a half hour layover?  What about his meals, shopping time, and the time he spent waiting for his luggage?

A:

The answer to your question is found in 5 C.F.R. § 550.1404.  Generally, if an employee is required to travel away from his official duty station and the travel time is not otherwise compensable (e.g. the time did not fall within regular duty hours, compensation was not authorized by a separate statute, etc.), the Agency must provide the employee with creditable time off.

Employees are credited for a “usual waiting time” as part of their time in travel status when their travel is interrupted, but they are not credited for “extended waiting time,” where an employee is free to use his time as he desires, such as time spent shopping.  The Agency has sole discretion for determining how long the “usual waiting time” is, and this seven hour wait may be beyond the Agency’s defined “usual waiting time.”  Meal times are explicitly not creditable as time in travel status.

Additionally, when an employee is offered one travel plan by the Agency and is then permitted to use an alternate travel plan, the Agency must estimate the amount of time in travel status the employee would have had if the employee used in the travel plan offered by the Agency.  The Agency must credit the employee with either the estimated amount of time in travel status under the travel plan offered by the Agency or the actual time in travel status used by the employee, whichever is less.

In this case, it appears you should provide the employee with the creditable time off which you estimate he would have been entitled to had he traveled in accordance with the Agency’s original itinerary, and not credit him for any “extended wait time” while the employee waited for his rescheduled flight.

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 – Off-Duty Restrictions

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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 civilian Federal law enforcement agent.  I have been sent on Temporary Duty (TDY) to a camp for approximately six weeks of training.  We work twelve hours each day and are compensated for those twelve hours.  When we are off-duty, we are not compensated, and we are not allowed to leave the camp.  We are told that if we do, we will be disciplined.  We are not allowed to even go out to have a meal or see a movie.  I do not understand how I can be off duty and not receiving pay, but still not permitted to leave the camp to engage in unobjectionable activities.  Is this legal?

A:

The conduct you have described does not appear to be lawful under the Fair Labor Standards Act, assuming you are covered.  As you are not free to leave, it appears to me that you are constantly held in an on-duty status.  When you are required to be on-duty for a period of twenty-four (24) hours or more, as you appear to be, you may agree to exclude a period of up to eight (8) hours for sleeping and meal periods per day.  Thus, I believe you should be paid for at least sixteen (16) hours per day. However, if you have no agreement to exclude a period of up to eight (8) hours, you should be credited as working all twenty-four hours.

The relevant regulations can be found at Title 29 of the Code of Federal Regulations, Part  758.22, while the regulations governing on duty and off duty status are found at 29 C.F.R. §185-15-16.

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 – Class Action Lawsuit Pending Against Department of Justice?

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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 class action lawsuit pending against the Department of Justice for exposure to second-hand smoke?  Second-hand smoke is dangerous, and I have been exposed to it for many years.  The Department has moved the smoking which was nearest to me, but it is still too close, and non-smokers must inhale tobacco smoke.  However, if I complain, I am harassed.  What should I do?

A:

Using internet research tools, I have searched for, but found no evidence of, such a class action lawsuit pending against the Department of Justice.

The executive branch, in 41 CFR § 102-74.315 et seq., established a smoke-free environment for Federal facilities by prohibiting the smoking of tobacco products in all interior space owned, rented, or leased by the executive branch of the Federal Government.

However, some smoking is allowed.  Outdoors, smoking is prohibited in courtyards and within twenty-five (25) feet of doorways and vents, but people may smoke in other outdoors areas.  These rules do not apply to individuals living in federal facilities, to buildings which are leased or rented in their entirety to non-Federal entities, or to areas which an Agency head has designated as a smoking area in writing.

Agency heads are responsible for enforcing the smoking rules.  If these rules are being violated, you should contact the Agency head’s office for corrective action and ask that compliant smoking areas be clearly designated with signs.

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 – Choosing Between Compensatory and Overtime Pay

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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 Permanent Full-Time Employee. I was advised that I could earn compensatory time in lieu of overtime pay. When I attempted to use compensatory time, I was told that I had been given inaccurate information and that I can only be given compensatory time in lieu of overtime when overtime is not granted or proved essential. Can you please explain this situation?

A:

Federal employees often have a choice for how they would like to be compensated for overtime work – in many instances they can elect to receive overtime pay or compensatory time off.

However, there is not always a choice in the matter. Title 5 of the Code of Federal Regulations, Part 550.114(a) explains that an agency “may” grant compensatory time instead of overtime if it wishes to authorize such a compensatory program. In your situation, it appears that compensatory time off was not authorized, even though someone erroneously informed you that it was. The agency may choose not to grant compensatory time off in lieu of overtime.

The overtime pay and compensatory time off regulations may be found at 5 C.F.R. §550.113.114.

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 – Submitting Papers under VERA

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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 I submit my retirement papers and then the Voluntary Early Retirement Authority (VERA) is implemented, does the law allow me to re-submit my retirement papers under VERA?

A:

Yes, if your agency has determined that your position is subject to VERA.

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 – Individual FEHBP Coverage and 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:

Both my spouse and I are retired federal employees with an annuity. We enrolled in the Federal Health Plan in 1967. My spouse is enrolled as a member and I am the dependent. I retired in 2001 with 12 years of service. We are separated and I would like to enroll in a self-only policy. Am I eligible to enroll in a self-only policy? If so, can I enroll myself or does my spouse have to make the request?

A:

Sorry. You are required to have individual Federal Employee Health Benefits Plan (FEHBP) coverage for the 5 years preceding retirement in order to carry FEHBP entitlements into retirement. Find a way to continue to be the dependent.

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.