By Bill Bransford
Repaying Retirement Accumulations
November 11th, 2011 | Uncategorized
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 eligible to retire but my agency says I owe the government $60,000 because I left federal service several times years ago and took out my retirement accumulation. No one ever told me I’d have to pay the money back if I returned to federal service. Is it legal for them to charge me money plus interest over the years that I was working in the private sector?
A:
You have no choice but to receive an interim payment if you seek to retire. The Office of Personnel Management has improved its process on this recently. Yes, you have to repay your paid contribution if you want credit for prior service and took out your contributions. You are perfectly free to retire, not repay for prior service and not receive credit. In fact, if you are Federal Employees Retirement System (FERS) the ability to repay and receive prior credit only recently occurred. Under previous law, FERS employees who withdrew their contributions could not receive credit for service under any circumstance.
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.
Retroactivity of Grade
November 11th, 2011 | Uncategorized
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:
Prior to the National Security Personnel System (NSPS), I was a GS-13. My position did not convert to NSPS; however, I applied for and was selected for a supervisory position under NSPS. This position never existed under the GS system; it was the result of an organizational reorganization. When I converted back from NSPS to GS, I was placed in a non-supervisory, GS-13 position. However, I continued to perform the same functions and responsibilities as I had under NSPS. Similar positions within my organization and other organizations converted back to supervisory GS-14 positions. Therefore, I filed an appeal through my agency.
My agency has agreed I should be a supervisory GS-14; however, they are indicating the grade will not be retroactive to when the conversion took place. Do I have any recourse for the grade itself to be retroactive?
A:
Unfortunately, mistakes and delays in appointments and promotions, in and of themselves, do not include back pay.
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.
Adequate Housing
November 10th, 2011 | Uncategorized
Q & A Session – Adequate Housing
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 accepted a one year contract to work for a federal agency in a very remote area. I am currently working under that contract. Before agreeing to the offered terms, I was given a tour of a home which was safe and acceptable to me. However, after I signed the contract, I was placed in very different housing – a forty-year-old trailer. The roof and some pipes leak, there is no insulation, pipes often freeze and there is mold in the trailer. I am told that another home is not available and the problems cannot be repaired. Furthermore, the closest accessible medical or dental care is a ninety-minute drive away.
I feel as though I have been misled and I want to resign. However, I am worried that I would have to pay back my bonus and relocation expenses. Can you provide any guidance on this matter?
A:
The Comptroller General of the Government Accountability Office has issued guidance relevant to your situation. Using GAO’s decision in the Matter of: Shirley Oliviera – Reimbursement for Commercial Lodgings, it appears that the officials in charge of determining whether the provided housing is adequate have broad discretion in determining that adequacy. In Oliviera, an employee’s lodging was not determined to be inadequate by housing officials because heat and water were unavailable for a period of several days, and the GAO accepted those findings. However, the GAO also stated that if such major problems persisted over a long period of time, a basis may exist to determine that government lodgings were inadequate.
While the agency has informed you that it is unable to provide new lodging or fix the current problems, it is unclear whether they have found the lodging to be adequate. If the housing is inadequate, you might be able to seek reimbursement for other lodging arrangements.
You probably cannot retain your signing bonus if you resign, unless a provision in your employment contract allows you to if the agency fails to adequately meet its obligations, such as providing adequate housing. Furthermore, Title 49 of the Code of Federal Regulations, Part 302-3.506 states that an employee who does not complete the terms of his or her service is indebted to the government, though if the reasons for terminating the agreement are beyond the employee’s control, the debt may be waived. You would have to discuss such a waiver with your employer.
Finally, I do not believe that the difficulty in accessing medical or dental facilities would be a relevant issue here. When you moved to a remote area, you could have reasonably foreseen that some facilities would not be located close by, and no one misled you about the availability of medical or dental services.
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.
Ranking Employees within Same Grade
November 10th, 2011 | Uncategorized
Q & A Session – Ranking Employees Within Same Grade
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:
There are rumors that my agency will soon reorganize, and I am concerned that I may be affected by a reduction in force (RIF). How would an agency rank three employees for retention if they are all GS employees of the same grade but with different steps and time-in-grade? Two employees have prior military service and one is receiving a military retirement.
A:
According to 5 C.F.R. § 351.501, there is a four-tiered structure for determining retention priority during a reduction in force.
The first tier to be considered is tenure, which has three classification groups. Tenure Group I, the group with the highest retention priority, includes career employees and certain managerial employees serving their probationary period. Employees who transferred from the legislative or judicial branches under 5 U.S.C. § 3304(c), scientific or professional employees appointed under 5 U.S.C. § 3104, administrative law judges, probationary employees who acquire competitive status and employees who can show substantial evidence that they are entitled to career tenure and whose cases are pending final resolution before the Office of Personnel Management are also included in this group. Tenure Group II includes career-conditional and probationary employees. Tenure Group III, the lowest priority for retention, includes employees working under indefinite or temporary appointments.
I believe the employees you have described are all included within Tenure Group I. Accordingly, you would then turn to an analysis of tier two: veterans’ preference. Preference eligible veterans who have a compensable service-connected disability of thirty (30) percent or more will receive the highest retention preference. All other preference eligible veterans will be of intermediate priority, while nonpreference eligible employees hold the lowest retention priority in tier two. For these purposes, retired members of the armed services are usually not eligible for veterans preference unless retirement is based on a disability received in combat or caused by “an instrumentality of war” during a period of war, or the veteran’s retirement was based on less than twenty (20) years of active service. Some nuances may impact those who retired at the rank of Major or above (or equivalent) – please review 5 C.F.R. § 351.501(d)(4) and (5) to review the rules affecting such retired officers.
If the question of retention is still “tied” after an analysis of the tiers one and two, length of service will serve as the determining factor. In the unlikely event that the matter is still unresolved after evaluating the first three tiers, the fourth tier, job performance will serve as the decisive criterion. Please note that these rules are for employees in the competitive service; employees in the excepted service are governed under 5 C.F.R. § 351.502.
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.
Veterans’ Preference and Involuntary Assignments
November 10th, 2011 | Uncategorized
Q & A Session – Veterans’ Preference and Involuntary Assignments
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 an employee of the United States Postal Service (USPS) and a preference eligible veteran with a disability rating of 30% or higher. The processing facility I work at may be closed, and I was wondering if I could be involuntarily assigned from a full-time position to a part-time position during a reduction in force (RIF).
A:
It is possible that you could be involuntarily assigned to a part-time position. However, because you are a preference eligible veteran with a disability rating of 30% or higher, you are more insulated from the negative impact of a RIF than most other employees.
While the civil service RIF rules do not apply specifically to the Postal Service, 39 U.S.C. § 1005(a)(2) explains that veterans’ preference rules are in effect. Therefore, during a USPS RIF, 5 C.F.R. § 351.501(c) will serve as a guide for retention priority. Preference eligible veterans who have a compensable service-connected disability of 30 percent or more will receive the highest retention preference. Other preference eligible veterans will be of intermediate priority, while nonpreference eligible employees hold the lowest retention priority.
Retired members of the armed services are usually not eligible for veterans’ preference unless retirement is based on a disability received in combat or caused by “an instrumentality of war” during a period of war, or the veteran’s retirement was based on less than 20 years of active service. Slightly different rules apply to those who retired at the rank of Major or above (or equivalent). If you retired at the rank of Major or above, please review 5 C.F.R. § 351.501(d)(4) and (5).
Accordingly, you would be one of the employees most insulated from change, if many employees remained full-time but others become part-time or were removed. However, if the entire facility is closed, or the vast majority of positions were converted to part-time positions, you could still find yourself dealing with a significant change in employment. Veterans’ preference ensures that veterans will be treated as well as anyone else, but it does not insulate them entirely from undesirable employment actions.
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.
Appropriate Compensation for Violation of Privacy Act
November 10th, 2011 | Uncategorized
Q & A Session – Appropriate Compensation for Violation of Privacy Act
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 the 1974 privacy act is violated during an internal investigation of a staff member, what is the appropriate monetary compensation?
A:
A civil action can be filed in federal court for some violations of the Privacy Act, 5 U.S.C. § 552(a). if the violation is established, the plaintiff is entitled to actual damages, which are set at a minimum of $1,000, and attorneys fees.
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.