Ask The Lawyer

By Debra Roth

Q & A Session – Telework Productivity Log

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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 an agency that utilizes telework. My supervisor, while allowing us to telework, requires that on telework days, we complete two locally created telework-record logs which must be submitted on a weekly basis. No one is required to complete these while on travel status or when working in the office, and as far as I’ve been able to tell, no one else in the agency does this.

Since this is treating teleworkers differently from non-teleworkers, is the added requirement of the telework logs permissible? If not permissible, what would be the appropriate manner to address the issue?

A:

“Teleworker” status is not a protected category as is race, gender, etc. Thus, your agency is permitted to treat you differently because of your telework status. The different treatment should be, however, reasonable and at least in harmony with the agency policy. You may have a grievance if you believe the requirement for logs is unreasonable or in violation of the agency policy.

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 – EARS Review

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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:

Why can my supervisor perform an EARS review with me when I have an EEO complaint against him for harassment and employment demotion without written approval and consent? Needless to say, the EARS review did not go well.

A:

I assume EARS is your agency’s performance evaluation system. If so, your supervisor must evaluate your performance without regard to the existence of your EEO complaint. You are protected from reprisal, but your EEO complaint does not give you additional special powers or protection.

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 – Pay Grade Differences

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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:

What is used to determine pay grades in the GS system, when throughout the system I have been told that similar job descriptions at various locations in the same area and throughout the United States have different GS levels for the same job?

A:

OPM has a very detailed and obtuse classification guide. The guide is based on broader standards set by Congress about what level of activity should be expected at each grade level. The reality is that only a classification specialist can understand the classification guidelines and many of them disagree. Also, there is no appeal of a classification decision beyond OPM.

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 – Working at Higher Grade Level

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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 been working at the next higher pay grade for the past 11 months to fill a vacancy without being temporarily promoted to that position.  Basically, I have been performing all of the tasks associated with the higher grade without getting paid for that pay grade. I recently received an end-of-year evaluation indicating my performance at the higher grade, but again, I have not been temporarily promoted to that grade, nor paid. Is it legal for my agency to expect me to continue performing at the next higher grade without temporarily promoting me or paying me for doing so?

A:

It is not a question of whether it is legal or illegal. You are not entitled to the pay of the next higher grade until you are appointed to it. Your efforts should be directed to convincing your management to appoint you to the correct grade level. You may also request a desk audit, but these run the risk of actually lowering the grade level of your current position.

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 – Reprisal/Retaliation Following EEO Complaint

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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 was recently terminated as a probationary employee because I filed an EEO complaint against management. Soon after, I was terminated. Management cited performance and conduct issues, of which I had none. During the informal stage, management stated that they had known that an EEO complaint was out there against them, but they did not know who filed the complaint. Although I highly doubt that they actually did not know, I don’t know how to prove that. My understanding is that if the agency was aware of the EEO complaint then they are officially notified. In this case, can I claim reprisal/retaliation adverse action by management? Or do I need to prove the pretext motive?

A:

Yes, you can claim reprisal. You must, as a part of your case, prove that management knew about your case. You can do this by looking at the EEO counselor’s report which probably indicates which management officials were called and when. Beware of the 45-day time limit to respond.

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 – Change of Work Schedule

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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 supervisor claims he can change my work schedule anytime he wants, provided he notifies me in writing at least two pay periods in advance. For at least 15 years, I always worked 5 days a week for a total of 40 hours per work week. April through October, I have worked weekends with two days off during the week. November through March, I have had weekends off. Recently, my supervisor informed me that I would be attending work functions taking place on two consecutive weekends. He then gave an official notice that my schedule would change, so I would work the weekends of these functions and have two days off during the week. The notification stated that I would then immediately go back to having weekends off. What are the regulations regarding change of an employee’s work schedule in instances such as this?

A:

Setting your work schedule is within your management’s prerogative. They must, of course, pay you for time and holiday work as required by the Fair Labor Standards Act, assuming you are covered by it. Also, some union contracts place limits on schedule changes. Otherwise, management can schedule when it wants.

Bill Bransford is managing partner of the federal employment law firm 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 – Cancellation of Previously Approved Annual Leave

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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 requested annual leave several months ago in writing (not required by my agency) and my boss has now asked me to cancel the previously approved leave. I already have airline and train tickets purchased for my trip and the trip insurance will not cover the expenses because this is not a military deployment or permanent change of station. What are my rights?

A:

Management has the right to cancel leave. It should do so for a good reason. If it happens in the future and you believe you are being discriminated against you can file an EEO complaint. You may also file a grievance, but those time limits are short for you, but not so short that your supervisor’s directive will be reversed before your trip rolls around. The best option is to try to elevate your concern within the chain of command as soon as possible.

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 – Transfer of Function

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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 of a handful of overseas GS technicians has been replaced by contractors who are earning 2-3 times what the GS workers earned. The agency has accomplished this mostly by attrition, by choosing not to extend the GS workers beyond their overseas tours of 5 years, even though they routinely obtained waivers in the past. The remaining GS workers have been forced on PPP, with essentially no responsibilities or prospects for obtaining stateside jobs on PPP. Has the agency cross the line? What recourse is available for these guys to get their jobs back or at least have a fair chance to compete?

A:

The scenario you describe does not result in any legal rights or entitlements for you. If the waste is as obvious as you say, the DOD IG or Congress may be interested.

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 – Can Supervisors Require Attendance at Holiday Luncheon?

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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 supervisor require mandatory attendance to a Christmas luncheon at an expensive restaurant the cost of $45.00/plate paid by the agency employee plus a $20.00 gift? I do not believe that a supervisor can require subordinates to use personal funds on the mandatory attendance to the restaurant just because she so desires.

A:

A supervisor cannot mandate attendance at a lunch that you pay for or require you to purchase a gift. The supervisor may, however, make this option available for special occasions, such as the retirement of an employee.

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 – Rights to Retraining after Facility Closes

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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 employed at a laundry for the Veterans’ administration. We have been understaffed for many months and were recently notified of the closing of the facility. My concern is whether or not we have any rights to retraining or any other methods of assisting us in finding viable employment in the federal system.

A:

If your facility is closed, your agency may reassign you to another facility, or it may invoke RIF procedures. You may receive retraining or assistance in finding another job at the option of the agency. I am hearing a lot about understaffing. Congress has to fix that.

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.