Ask The Lawyer

By Debra Roth

Q & A Session – EEO Complaint based on National Origin

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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 work for U.S. forces in Europe (USAREUR). There is a policy here which allows German nationals who work for the U.S. military to work an additional 15 minutes per day so that they can take off the U.S. holidays. However, I am not permitted to work 15 minutes a day more to take off their holidays, such as Veterans Day or some of their religious holidays, such as Three Kings Day. Is this legal?

A:

Interesting question! To give a full answer I would need more facts including USAREUR’s opinion on whether German law requires USAREUR to give local nationals paid time off on German holidays. Also, your local national hires are not necessarily German. They are just not federal employees in the civil service. My initial reaction is that you would be unsuccessful with an EEO complaint based on national origin.

 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 – Travel Documentation

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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 employee and on occasion request travel compensation, including for time spent travelling to the airport and waiting at the airport. I am not aware of any established policy on documentation required to support the compensation. Is this type of documentation required and are there any regulations that show whether my department can or cannot ask for this?

A:

Per 5 C.F.R. § 550.1404(b)(1), “travel status” includes the “usual waiting time” that precedes or interrupts travel, such as waiting for an airplane, train or bus, and/or travelling to/from the airport or terminal. Moreover, the determination of what amount of time constitutes “usual waiting time” is at the agency’s discretion. See 5 C.F.R. § 550.1404(b)(1). Given that one cannot necessarily document how much time was spent travelling to/from the airport or other time spent waiting before and after travel, and that the agency may determine at its discretion the appropriate “usual waiting time,” it should not be necessary, or likely, that an agency would require you to produce documentation to show the total amount of time spent travelling. However, the agency may require you to produce basic documentation to show your travel schedule or itinerary.

 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 – Travel Comp for Locations within the Official Duty Station County

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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 thought that the same official duty station would be used for both travel comp and local travel reimbursement, but I am confused. Is it true that I would never earn travel comp for time spent in the county designated as the “official duty station?” How does designation of the county as the official duty station impact my entitlement to reimbursement for local travel? Specifically, would I be entitled to local travel reimbursement for trips from my residence to locations within the county designated as my official duty station? And can the employing agency make the permanent duty station the “official duty station” as well, making the entitlement to local travel and comp travel the same and, if this is the case, why shouldn’t agencies be required to do this for equity?

A:

Travel compensatory time is travel time that is not otherwise compensable hours of work spent while on an official travel away from the duty station.  See 5 C.F.R. § 550.1404(a).  For example, an employee is entitled to travel compensatory time for time spent in travel status, beyond their normal duty hours.  Travel reimbursement, on the other hand, is financial reimbursement for travel expenses accrued by the employee while on a travel status.  See 41 C.F.R. 301-1.3.  To qualify for either travel compensatory time, or reimbursement of travel expense, one must be in an official travel status.  An employee is in a travel status when travelling outside their official duty station, as designated by the agency.  5 C.F.R. § 550.1404(a)(1).  Just because an employee does not report to his typical place of work, an employee may nonetheless remain within his/her official duty station, and thus not be in a travel status.  Indeed, so long as an employee remains within his/her official duty station, as defined by 5 C.F.R. § 550.1403, that employee is not entitled to either travel compensatory time or travel reimbursement.  Accordingly, there is no such thing as “local travel,” as an employee is either in a travel status or not.  (For more on travel compensatory time, see our previous column, “TDY and Comp. Time: What Are the 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.

Supervisors call shots on leave use

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Leave management is a constant challenge for most front-line supervisors. As leave use increases during flu season and year-end vacations, supervisors should understand a few basic rules about the different types of leave and the extent and limits of their authority in leave management. In making leave determinations, it is generally the supervisor, not the employee, who calls the shots. The first principle is that being absent from work without leave or authority is a serious matter. It is the supervisor’s discretion whether to approve leave for an unauthorized absence. An employee who just does not show up is absent without leave (AWOL) and can be disciplined. The supervisor must carry the employee in an AWOL status and avoid the temptation to approve leave without pay (LWOP), which is considered approved leave. Repeated or lengthy AWOL of more than a few days can support a severe adverse action, including removal. If the unauthorized absence is converted to LWOP, the ability to discipline is curtailed.

Sometimes an employee might call in sick and ask the supervisor to credit the absence to annual leave. The supervisor can say no and require the employee to take sick leave. If the employee has no sick leave, the manager could approve leave without pay or the employee could be advanced sick leave. As a general rule, an agency will have a practice about LWOP approval for medical reasons or for advancing sick leave. To the extent an employee’s request for LWOP or advanced sick leave is consistent with past practice and is supported by medical evidence, the request should be granted. LWOP of up to 12 workweeks a year is available under the Family and Medical Leave Act (FMLA) to an employee with a serious health condition, but again, medical evidence is required. When the sick employee uses up FMLA leave and the agency has exceeded the LWOP it usually grants an employee with a health condition, the agency may declare the employee AWOL.

Agencies have the discretion to advance sick leave during a leave year, but that authority is limited to 30 days, or 240 hours during the leave year, for full-time employees. An agency need not approve a request for advanced sick leave and may require medical evidence in deciding to exercise its discretion to grant the leave. A word of caution: If an agency has a policy to advance sick leave up to the allowable amount upon proof of a legitimate medical need, the refusal to do so may be viewed as evidence of discrimination. Care should be taken to advance sick leave fairly and consistently among the workforce.

Voluntary leave banks — or borrowed leave — are valuable resources for employees in agencies that have them. The banks are only for annual leave and they apply only to medical emergencies. To use a leave bank, a leave recipient must also be a leave donor. The minimum annual leave donation for a leave donor is the amount of annual leave earned in a pay period. The maximum annual donation is 50 percent of the leave earned. A donor may designate a particular recipient as the person to receive his leave. Leave banks are established by a specific and written agency policy, which includes the composition of a leave bank board and an enrollment period.

Voluntary leave bank boards, which must include labor representation, review applications for annual leave to assure that the leave is for a medical emergency that is supported by medical evidence. The leave donor then becomes a leave recipient and can use annual leave to cover a medical emergency when the employee is out of sick leave.

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.