Ask The Lawyer

By Debra Roth

Q & A Session – Are Employees at my Agency Allowed to Join a Union?

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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:

How can I get my agency to become part of a union? I think I remember being told that employees at my agency were not allowed to join a union when I first started many years ago, but I am not sure if that is right.

A:

Federal agencies and parts of federal agencies are allowed to organize and have most employees represented by unions. Some agencies (e.g., CIA and FBI) and employees (e.g., supervisors) are excluded. If eligible, a union has to actually organize your component and an election has to occur.

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 – Constructive Discharge

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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:

As I understand it, when a person files an EEO complaint that includes allegations of retaliation, discrimination based on race, reprisal, age and constructive discharge, it becomes a mixed case with appeal rights to the Merit Systems Protection Board (MSPB). Before I received the decision letter, I asked the agency to drop the constructive discharge charge but it refused to do so. My case is now with MSPB but I want it to go to EEOC. Is there any way that the case can be remanded to EEOC? Is it possible to win on retaliation and discrimination even if I lose on constructive discharge? Is there an appeal to the EEOC on the discrimination issues after MSPB renders its decision?

A:

If you drop the constructive discharge claim, you cannot be reinstated, even if you win the other claims. Dropping your constructive discharge could affect the whole case.

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 – Personnel Problems

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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 office has two employees who do not get along. Periodically, one employee acts as acting supervisor because he is a higher grade. Every time this employee is placed into a position of authority there are problems between the two. Both have filed complaints against each other and senior management has decided not to act on the complaints. Is there anything that I can do or say to them?

A:

Are you the supervisor? If so, you should be making judgments about discipline for one or both for reasons that promote the efficiencies of the service. There is also the possibility of mediation. You cannot just let this go. Ask employee relations for advice.

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 – Does Clearance Denial affect Eligibility for MRA+10?

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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 will soon be eligible for MRA+10 years since I will be 56. My security clearance renewal is May 2012. If my clearance is denied, am I still eligible for the MRA+10?

A:

Losing a clearance will not affect your MRA+10 early (and reduced) annuity rights. In fact, the loss of a job solely because you lose a clearance (without evidence of misconduct or delinquency) may entitle you to discontinued service retirement if you are age 50 with 20 years of service or 25 years of service at any age.

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 – Challenging the Denial of a Career Ladder Promotion

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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 in a ladder position GS-12/13 and was given two different objectives over a two-year period. I met both objectives but was never promoted. Now I am being told that my position is going to be changed to just a GS-12. I have turned down other opportunities thinking I had the possibility to be a GS-13. Is there any regulation or protection offered to employees promised a promotion?

A:

Unfortunately, promotion in a career ladder is at the discretion of management. That discretion, however, cannot be exercised illegally. In other words, if you can prove illegal discrimination or whistleblower reprisal, you can challenge the denial of a career ladder promotion.

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.

In telework, accountability is necessary

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As I write this column from a remote location enjoying a beautiful view, it reinforces the notion that telework has its advantages, both to the employer and the employee. But that remote location with its great view is also a distraction, and without structure and rules may actually be counterproductive. It’s the accountability of the deadline that keeps me going.

This same concept of accountability should be a part of any agency’s telework program.

The best publication available for federal-sector telework is the Office of Personnel Management’s April 2011 “Guide to Telework in the Federal Government,” available on the telework. gov website under “Policies and Procedures.” It is a must-read for any employee who wants to challenge a denied telework opportunity or any manager trying to efficiently and fairly implement a telework program.

While the word “accountability” is hardly mentioned in the 41-page guide, the idea of accountability is at least strongly implicit. The concept of accountability is the bulwark of the program, and without it, telework could fail or at least stumble.

The first accountability concept is the requirement that all teleworking employees and their managers receive training. This requirement has few exceptions, and those must be applied by the agency head. The idea that everyone be aware of their telework responsibilities is an important part of accountability.

The second and perhaps most obvious accountability requirement is that every teleworking employee must have a written agreement defining the telework arrangement, including the setting of work expectations. It is this agreement that should define, in advance, the accountability of the telework arrangement. Early in OPM’s guide is the notion that this agreement defines manager and employee expectations and gives the employee the resources to get the job done. When that job is not done, the telework agreement provides the manager with the necessary documentation to refine or revoke the arrangement.

The telework agreement should also include minimum performance and conduct expectations. For example, it is not unreasonable to include a provision about the employee’s accessibility. An employee who has this requirement in a teleworking agreement and who is repeatedly unresponsive to emails or telephone calls could have the telework arrangement canceled.

The OPM guide expects that teleworking employees perform at least at the fully successful level. An employee who performs at a substandard level could lose telework if the manager evaluates performance at less than the fully successful level and has the documentation and reasoned judgment to back up the conclusion about substandard performance.

Another important accountability feature of the OPM guide is the unequivocal statement that telework is not a substitute for dependent care. This reinforces the notion that teleworking employees should be able to perform their jobs at least as well, if not better, than when they are in the office.

One thing the OPM guide makes clear is that telework is not an employee right. Yet, throughout the federal workplace, employees are angry and feel a sense of being treated unfairly when denied telework. Some managers feel beleaguered with a sense of having no choice but to grant telework even when the manager believes it is not a good idea. Perhaps this is because the OPM guide makes clear that the unfair denial or revocation of telework can be the subject of a grievance procedure. Also, denial of telework as an accommodation to an employee with disabilities can be the subject of an equal employment opportunity complaint.

While telework is not a right, managers cannot arbitrarily deny it. Careful thought, documentation and experiential reasoning should go into the decision.

Telework is not for every job or every employee. But every employee who is doing his job as a part of a telework arrangement is subject to accountability. And the tools to establish the accountability expectations are available to both teleworking employees and their managers.