Ask The Lawyer

By Debra Roth

Q & A Session – Pension Beneficiary

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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 brother passed away in 2010. He was a federal employee. He was divorced in 1993 but never changed his beneficiary. At the time of his death, his ex-wife was still listed as the beneficiary for his pension. In the divorce degree both parties signed away any right to retirement benefits. When my brother passed away, his ex-wife agreed that she had no claim to the pension and submitted a disclaimer to the Office of Personnel Management (OPM). OPM denied the disclaimer. My brother’s ex-wife refuses to claim the money and disburse it to the rightful heirs. Is there any recourse for me to take to get OPM to disburse the funds to the rightful heirs?

A:

A designation of beneficiary trumps a divorce decree in the event of a death, even if a separation or divorce from that designated beneficiary occurred and the beneficiary designation remained unchanged by the plan’s participant. The Supreme Court of the United States has ruled that a divorce decree does not waive an ex-spouse’s rights to retirement benefits if the beneficiary designation remained unchanged post-divorce and named the ex-spouse as the beneficiary. See Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009). Thus, an ex-spouse’s waiver of a right to the participant’s pension benefits in a divorce decree does not invalidate the participant’s beneficiary designation made in accordance to the pension plan.

To avoid this result, plan participants should check the beneficiary designations of their retirement account and pension plan to ensure that the designated beneficiary assigned is the person the participant wants to receive the retirement account or pension in the event of a death.

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 – FERS Annuity Supplement Question

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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:

Regarding the bill that passed the House that eliminates completely the social security supplement from the FERS retirement for retirements after 1/1/2013: Is this really legal – eliminating a benefit already earned in theory for 21 years of my career?   I can see the point going forward in eliminating it, but I already have 21 years of federal service and it seems to me that was part of the overall package from the day I started until/unless it actually passes both houses of congress and is signed by the President.   I am hoping for a veto, but I have heard very little out of Obama and the Democrats in the Senate about the benefits/pay hits for federal employees so I see a good possibility this passes in some form.
It just seems as though a benefit has been earned.

A:

Congress has broad authority to change and enact laws. Most proposals to eliminate the FERS annuity supplement do not apply to those federal employees under mandatory retirement requirements. Also, the House bill you reference does have a one year period before the elimination goes into effect. The bill is currently in a house-Senate conference committee and it is unclear if this proposal will be in the final version of the legislation or if it will pass 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.

Q & A Session – FERS Annuity Supplement

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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 would like to know if Congress passes a bill to eliminate the FERS Special Supplement Annuity beginning in Jan 2013 without grandfathering current employees in, will I have a chance to change back to the CRS retirement system due to my circumstances.  I was originally covered under CSR retirement system.  In 1988, the government gave employees under CSRS with less than five years an opportunity to change over to FERS.  I based my decision to change to FERS on the facts about the FERS retirement system.  The basic annuity included the special supplement to bridge the gap between my MRA of 56 and Social Security age of 62.  Now after 30 years of service, Congress comes along and changes the FERS retirement system rules to not include the supplement therefore not allowing me to be able to financially retire at 56. Is this legal or is it a breach of contract by the US government?

A:

As far as I am aware, there are no proposals to allow FERS employees to switch back to CSRS if they were originally under that system. Also, it appears from your question that you are under a mandatory retirement requirement. The proposal being considered by Congress does not apply to those employees (fire fighters, air traffic controllers, and law enforcement officers) under mandatory retirement.

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 – MDR without Notification

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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 career-conditional probationary employee with veteran status. I am pending a move of my position, supposedly a management-directed reassignment (MDR), to another facility approximately 50 miles away as part of transformation efforts. The move date I was given three weeks ago is about 3-4 weeks away. I continue to be told they are working on MDR letters, but my supervisor who is disillusioned with my command states I am unlikely to receive anything before the move date.

What are my rights to move or not move if I have not been given any instructions in writing? Am I entitled to any different compensation (mileage or time off for travel) if I have or don’t have official MDR notification?

A:

There are no penalties for not telling you about your move sooner. Except for the SES, there are no legal timelines for geographic reassignments. If you are ordered to move, it is for the convenience of the government and you are entitled to relocation expenses, assuming you are moving to a new commuting area.

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 – Allowed an Attorney at MSPB

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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 going through an appeal with the Merit Systems Protection Board. I understand that I am not allowed a lawyer, but why are they allowed to be represented by one? I have an ill-trained union representative, and they have a JAG lawyer.

A:

You are allowed a lawyer, you just have to pay for it. You are not entitled to representation at government expense unless you win your case, and then you may be awarded attorney fees if the interests of justice are served.

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 – Use of Facebook as Evidence against FMLA Status

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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 had managers and co-workers complain that employees that have called off Intermittent Family Leave and Medical Act (FMLA) or are on a Straight/Continuous FMLA posting on Facebook that they are shopping, going to the gym, out partying, on vacation, drinking, or “pulled one over on the boss” on their Facebook pages. If they are on an approved FMLA and have provided appropriate medical documentation under the employer’s FMLA or Leave policy, does the employer have the right to deny the FMLA or discipline the employee for misuse of FMLA?

A:

If the employee’s Facebook activity shows that the FMLA documentation is a sham, the employee on a FMLA absence may have a problem. Beware what you post on Facebook. Beware what you say in emails. Both can be used as evidence to destroy a career.

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 – Allowed Overtime? Protected Whistleblower?

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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 two questions:

  1. I am a civilian who works for the U.S. Army. Recently, one of my leaders told some of us that he expects managers and supervisors to work off the clock, if needed, to get the job done and that he was not going to authorize overtime or comp time. Is this legal?
  2. If a blow the whistle to the Inspector General concerning some organizational practices that I believe are questionable, and I turn out to be wrong, am I protected under the Federal Whistleblowers statute?

A:

  1. If you are covered by the Fair Labor Standards Act, you are entitled to overtime and you can file your claim. If you are exempt (check your appointing SF-50), it is more complicated. You are not entitled to overtime unless it is directed in writing. Drawing that line between working overtime because the job needs to be done and refusing to work overtime because it has not been directed or authorized is a fine and careful line often walked by many federal employees. Ask the hardworking lawyer at the Department of Justice how they feel about the issue.
  2. If you have a reasonable belief that what you are disclosing is a violation of law, rule, or regulation; a gross financial irregularity; an abuse of authority; or a specific threat to health or safety, you are protected. A lack of clarity on protected disclosures sometimes arises because of an employee’s belief that an agency is violating the law when the agency has a different and good faith interpretation of the law. This situation gets into the policy disagreement area and is not a protected disclosure unless the would-be whistleblower can show that the agency’s interpretation is clearly wrong or is unreasonable. You can only be protected from whistleblower reprisal if you are a whistleblower. Sometimes, this is a hard question to answer.

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 – Employer-Required Certifications

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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 organization is considering requiring GS-2210s to obtain Microsoft certifications. Their plan is to pay for the certifications. Can they do this? The 2210s do common IT work that is found throughout the Department of Defense (DOD). Neither DOD or the Air Force currently requires Microsoft certifications. My understanding is that, if you do specialized work that is critical in nature, you can be required to have certification, but you must get that approval from the Office of Personnel Management.

A:

Your employer can require certifications or training that it, in its discretion, believes are important. The fact that you are obtaining the certification at your employer’s expense and while you are at work means you have to comply. Your job may not “require” the certification, but if your employer thinks it is a good idea, it is required.

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 – Compensatory Time for Travel on a Temporary Assignment

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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 temporarily stationed for duty in North Carolina. Previously, I was temporarily assigned to a duty station in Kuwait. Even though I am on a temporary assignment, I have been ordered to occasionally travel. I believe I am eligible for compensatory time when I travel, is that correct?

A:

Your assumption is correct if your travel otherwise makes you eligible to receive compensatory time. Under 5 C.F.R. §550.1404, it is generally the case that if an employee is required to travel away from her official duty station, in your case a temporary duty station, and the travel time is not otherwise compensable (e.g., the time did not fall within regular duty hours), the Agency must provide the employee with creditable time off. The fact that you are at a temporary duty station does not change your eligibility for compensatory time related to travel.

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 – How Many Times can a Duty Station Change in a Year?

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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:

Can a fire lookout be considered a duty station? How many times can a duty station be changed in a year? When I work at a work center early season, I am not paid mileage or per diem. Then, when I go to the lookout, I am told that it is my duty station. I believe my duty station changes so I will not be paid per diem or mileage.

A:

I do not believe your duty station has been changed, as a duty station can comprise a local area rather than just a particular office or lookout post. A fire lookout could certainly be a duty station, but to determine your official duty station, you should review your most recent SF-50. The location listed on your SF-50 is your official duty station.

That being the case, per diem is authorized when you: a) perform official travel away from your official station, or other areas defined by your agency; b) incur per diem expenses while performing official travel; and c) are in a travel status for more than 12 hours. 41 C.F.R. §301-11.1 (emphasis added). I doubt you are entitled to per diem, but it is difficult to be sure without knowing the distance between these work stations.

 

You may be entitled to mileage, though. An employee who must use a private vehicle for local travel is entitled to reimbursement for travel expenses under rates established by the General Services Administration. The current rate of reimbursement rate is $0.51 per mile when no government vehicle is available, or $0.19 where a government-owned vehicle is available for use but an employee prefers to use a privately owned vehicle.

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.