Ask The Lawyer

By Debra Roth

Work Rules for Military Commands

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Q & A Session – Work Rules for Military Command

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 military command is often given a “training holiday” in conjunction with a federal holiday, creating a four-day break. My new command was under the impression that a military member must be present in order for the government civilian to come to work.is there any regulation that states government civilians (not defense contractors) working for a military command must have a military member present at all times?

A:

No. But the local commanders have a lot of discretion on establishing those types of work rules.

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.

MSPB Jurisdiction for Constructive Discharge

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Q & A Session – MSPB Jurisdiction for Constructive Discharge

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:

The Merit Systems Protection Board (MSPB) has ruled it does not have jurisdiction for constructive discharge of involuntary retirement since my agency has not separated me.

Once I am separated, can I refile the constructive discharge?

A:

Constructive discharge is when you resign because of intolerable conditions and argue that those conditions forced your resignation. Constructive discharge is hard to prove, so if you resign the MSPB might still decline jurisdiction.

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.

VRA Appointment Counting Toward Tenure

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Q & A Session – VRA Appointment Counting Toward Tenure

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 employee was converted from a Veterans Recruitment Appointment (VRA) (GS-11) to a Veterans Employment Opportunity Act (VEOA) (GS-12) appointment and the employee did not serve the full two year probationary period before converting to the VEOA, does his or her time served in the VRA appointment count toward career tenure?

The employee was selected from a merit service promotion and served 1 year and 5 months in the VRA appointment.

A:

It depends. The earlier service would count if it was for a like and similar job.

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.

Repeated Frivolous Complaints

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Q & A Session – Repeated Frivolous Complaints

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 way for a manager to halt the submission of false accusations being sent to Internal Affairs, Congressional Offices, the Equal Employment Opportunity (EEO) office, etc.? I have been the subject of over 15 such complaints, filed by the same two individuals, all of which have been investigated and proven to be unfounded and false.

A:

The EEO office has the discretion to dismiss repeated complaints that are frivolous. Otherwise, you have to accept complaints as part of the hazard of being a manager. Consider purchasing federal employee liability insurance.

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.

Offensive Language at Meetings

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Q & A Session – Offensive Language at Meetings

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 wife attends meetings on a regular basis. During these meetings she observes individuals, including managers, decision makers and the like, freely using offensive, suggestive or abusive language, occasionally directed at fellow attendees. Does my wife have recourse to prevent this practice?

A:

I don’t know if your wife is a federal employee. Assuming she is, she has three options. First, she can simply and informally complain to higher ups. Second, she can file a formal grievance. Third, if she believes the comments have a sexual tone or are offensive to her gender, she can start the Equal Employment Opportunity 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.

Constitutionality of Downsizing Agencies

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Q & A Session – Constitutionality of Downsizing Agencies

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 the federal government have any constitutionally protected size in terms of department functionality? Some lawmakers seem to want to downsize agencies to the point where the agencies are almost completely ineffective.

A:

No. The ability to downsize rests with Congress.

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.

Are GPO and WEP Discretionary?

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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:

Each year, federal employee organizations propose the elimination of the Government Pension Offset (GPO) and Windfall Elimination Provision (WEP), and each year approximately 350-400 members of Congress cosponsor legislation to abolish this discriminatory law, but that’s where it ends.

I feel the GPO law is also discriminatory as it prevents retirees from collecting both their federal annuity and any Social Security benefit based on their spouse’s work.

Have the GPO and WEP provisions been challenged under the anti-discrimination laws?

A:

Both the anti-discrimination laws and the GPO and WEP are federal statutes. They are interpreted so that both apply. Since GPO and WEP authorize lower benefit payments, it is not discrimination.

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.

 

Prohibited Personnel Practices Complaints

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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:

The Office of Special Counsel (OSC) has the responsibility of investigating Prohibited Personnel Practices (PPP) complaints. What is the rate PPPs are found, and what resolutions can OSC negotiate when a PPP has occurred? The issue is in regard to promotions and appointments, concerning willfully obstructing competition for employment, giving an unauthorized preference or advantage and avoiding veterans’ preference. Can an OSC complaint for a PPP and a union grievance be filed simultaneously if the bases are different, but still the same non-promotion action? For the union grievance, HR confirmed that, at the request of management, merit promotion candidates were evaluated against selection and experience criteria not in the job announcement but developed later.

A:

The questions you ask are complicated and discretionary with OSC. OSC has taken more cases where the claim of unauthorized preference has been made.

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.

Sick leave requests deserve careful review of all factors

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Federal workplaces are inconsistent on how and when they grant or deny sick leave. Some agencies grant any sick leave request, and some might deny or challenge a request when the employee has a clear right to it.

Paid time off is authorized:

• For medical incapacitation of the employee or a family member.

• To arrange or to attend a funeral of a family member.

• For the adoption of a child.

• For medical appointments for the employee or a family member.

• To care for a family member with a serious health condition.

• Because someone has a contagious illness.

Most questions about sick leave approval occur when the employee claims incapacitation as the basis for sick leave. It is often impractical for an employee to request sick leave in advance if he is incapacitated.

Most agencies allow an employee to self-certify the first three days of a sick leave absence because of a medical incapacitation. Self-certification is a serious matter, and if the employee is lying to justify sick leave, the employee can be prosecuted. The practical problem is proving the employee is lying.

Because managers sometimes doubt an employee is really sick, Office of Personnel Management regulations allow an agency to request medical evidence of an incapacitation for any unscheduled absence.

To implement this authority, the agency should issue a leave restriction letter telling the employee that the usual practice of self-certification for the first three days of absence no longer applies to that employee, and for a specified period any request for sick leave will be disapproved unless it is accompanied by medical evidence.

OPM regulations allow an employee 15 days to provide requested evidence. In the meantime, the sick leave should be disapproved and the employee placed in an absence without leave status (AWOL). If acceptable medical evidence is produced, the AWOL must be changed and sick leave approved.

Sometimes, an employee who is on leave restriction or who is out with an illness for more than three days produces vague and general doctor’s notes. The manager has a right to reject medical evidence that does not show that the employee was incapacitated. In such a case, the manager should advise the employee of why the note is insufficient and provide time for a more detailed explanation from the doctor or other health professional.

The employee may balk at providing private, sensitive information to the supervisor. While the supervisor has a right to information that establishes incapacitation, the better practice is to allow the employee to confidentially submit detailed documentation to a trusted neutral source such as a public health service doctor or employee relations official.

The manager could then accept the neutral source’s judgment about incapacitation without needing details of the employee’s private medical condition.

Another issue is timing on sick leave requests. A sick leave request for a medical appointment is required in advance. An employee who calls at 9 a.m. and says he has a dental appointment without having requested it in advance can hear a “sick leave denied” answer unless the appointment was for an emergency.

OPM regulations also require, to the extent possible, advance requests for sick leave to arrange or attend a family funeral, to adopt a child or to care for a sick family member.

When an employee requests sick leave to care for a family member with a serious health condition, a manager may require additional medical information concerning the family member’s need for psychological or physical care. That information is required to certify that the family member would benefit from the employee’s care or presence for a specified time.

Most often, an employee will easily be able to obtain sick leave by showing the request fits one of the categories for which sick leave may be taken. When a question arises, it is often because of a pattern of unscheduled absences. A leave restriction letter may remedy this and help a doubting supervisor.

The bottom line: If an employee requests sick leave in advance, if possible, and produces administratively acceptable evidence to show the request fits an authorized sick leave category, the sick leave must be granted.

Supervisor Responsibility with Employees’ Timecards

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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 fellow employee is routinely late to work and takes extremely long lunch breaks (up to 3 hours). What is a supervisor’s responsibility in terms of verifying that an employee actually works an 8-hour day?

A:

You don’t know the full story. A supervisor who knowingly certifies a false time card can be disciplined. But something also may be going on here.

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.