Ask The Lawyer

By Debra Roth

Q & A Session – Work Hours

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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 management direct a Fair Labor Standards Act-exempt employee to change their work hours (eight hours per day, five days per week) while on temporary duty/ Can I be given a work week with a fourteen hour day, a ten hour day, an eight hour day and two four hour days?

A:

Your workweek may be subject to a provision in a collective bargaining agreement, but the Fair Labor Standards Act does not prohibit such an assignment.

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.

What you need to know about the RIF process

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With all the talk about government downsizing, some employees might end up being affected by a reduction-in-force, or RIF. Hopefully, any downsizing can be accomplished through normal attrition, helped along by buyouts and early retirements.
But if a RIF does happen, it is important to understand the somewhat complex system’s basic premises. The following is a brief review explaining how RIFs are conducted.

An agency may only conduct a RIF for certain specific reasons: lack of work; shortage of funds; personnel ceiling adjustments; reorganization; the exercise of re-employment or job restoration rights; or the reclassification of an employee’s position due to erosion of duties if the reclassification occurs during the RIF. These are fairly broad authorities, especially when doing a RIF for a reorganization, and it is usually fairly easy to justify a RIF.

The geographic area where the RIF occurs is called the competitive area. It is usually the commuting area and may include multiple commuting areas, each of which would be a distinct competitive area.

Competitive levels are groupings of jobs, and are usually based on position descriptions, job series or some combination of the two. Beware of the one-person competitive level, a growing occurrence as agencies try to misuse the RIF procedure as a substitute for the adverse-action procedure to target specific employees whom management may view as undesirable.

While this motive is not allowed, proving it is hard, and one-person competitive levels have been upheld if the RIF’d employee’s job is sufficiently distinct from other employees’ jobs.

There are three tenure groups where the competition occurs to determine who stays and who goes, or who is demoted:
* Career employees, usually those with at least three years of service.

* Career-conditional employees and those serving in a probationary period.

* Those serving indefinite or temporary appointments.

Within each tenure group are subgroups:

* AD, preference-eligible veterans with a 30 percent service-connected disability.

* A, all other preference-eligible veterans.

* B, preference-ineligible employees.

Employees are placed on a retention register based on the above groups and their years of service. They may receive extra credit for a higher performance rating. Employees are released in inverse order of their standing on the retention register.
Competitive service employees in the first and second tenure groups only have “bump” and “retreat” rights. “Bump” means you replace someone in a lower tenure group or in the same tenure group but a lower subgroup. “Retreat” means you are offered a position in a lower subgroup that is not more than three grade levels below the position you held and is the same or essentially the same as the position you held.

A RIF’d employee who is separated is entitled to discontinued service retirement if he or she has 20 or more years of service and is at least 50 years of age, or if he or she has 25 years of service at any age. An employee who is not entitled to discontinued service retirement is entitled to severance pay, which is based on years of service.

For longer-serving employees, the amount of severance pay can easily exceed the amount of a typical buyout.

A demoted employee is entitled to retain his grade for two years and his pay level indefinitely. An employee who refuses a demotion of not more than two grade levels and separates is not entitled discontinued service retirement or severance pay.
An employee who is demoted or separated as a result of a RIF may appeal to the Merit Systems Protection Board. The appeal is largely technical and concerns questions about whether all the rules were followed. A RIF’d employee should thoroughly review all the rules before deciding whether to appeal. An employee who is released or demoted may also claim discrimination or reprisal as a part of the MSPB appeal.

An agency is required to give at least 60 days’ notice of a RIF before any employee can be released or demoted.

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 – Off-Duty Conduct and Discipline

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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 an 1811 and was arrested off duty for a DWI in my personal vehicle. I was wondering what to expect as far as my job goes. I have never been in trouble at work and have no criminal record other than this occurrence. I have been told different things, like my job is safe, etc. I know it has happened before in my office and they did nothing to the individual. I guess my question is what to expect and do they have to be uniform across the board when disciplining for similar offenses.

A:

Agencies are supposed to consider how other employees were treated in deciding how and whether to discipline you. It is not a requirement, just a consideration. A DWI for a law enforcement official can be a problem, and most likely will be reviewed in the context of a security clearance, if one is required for your job. A simple DWI unaccompanied by other indications of alcohol and drugs or other aggravating factors will most likely not result in the loss of a job or a security clearance.

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 – Survivor’s Benefits

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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 married to a former federal employee for 21 years who is now deceased. I was awarded survivor’s benefits in my divorce. I applied for survivor’s benefits with OPM, which has been denied several times. I submitted an appeal with MSPB, and OPM requested MSPB to dismiss my case. The denial is because I remarried prior to age 55, however, this marriage was annulled. In the CSRS Handbook, it states that survivor’s benefits can be restored if annulment states specific wording, which it does.

Who can I contact to help me with my entitlement?

A:

If your MSPB case is over and the deadline for appeal has passed, it may be too late for any further review.

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 – Bill that would Eliminate FERS 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:

Was the bill passed that would discontinue the FERS Supplement for annuitants already receiving FERS and FERS Supplement? Is this bill intended for new employees under FERS?

A:

The bill has not yet passed, but it is still pending in 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 – Proving Reprisal

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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 worked at an administrative office that managed several programs and reported to upper management. I was being harassed by one of the ladies in the unit, and I filed an EEO complaint. Within a week I was transferred out to work at a detention center. My duties were also removed and now I am answering public calls all day. I filed a retaliation claim naming my first line all the way up the chain of command since they all refused to have a discussion with me.

After the initial investigation, the case was remanded for a supplemental investigation by the EEO Director and Adjudications in DC. The memo outlined that management had failed to provide evidentiary evidence that I was causing conflict in the workplace and that I actually received an outstanding performance rating and awards. Everyone I named in the initial complaint then submitted additional affidavits but never produced evidence such as disciplinary memos, e-mails or notes. I submitted rebuttals to each affidavit. Although the outcome was seemingly in my favor, the FAD stated that I failed to prove I was being subjected to a hostile work environment and reprisal.

If the agency was never able to prove a legitimate explanation for their actions, why did the FAD rule in their favor?

A:

Your appeal of a FAD, or final agency decision, is to the EEOC’s Office of Federal Operations or to federal court. Normally, an attorney would be helpful in assembling and presenting you 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 – Minimally Successful Job Rating

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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 just received a minimally successful job rating. Does that mean I can’t get another federal job?

A:

It means you can, for now, keep your current job, but you may not receive within grade increases. Other agencies may legally hire you but they might choose to pass you by when they see your most recent rating.

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 – FCIP Retroactive Demotion

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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 hired in July 2007 under the FCIP and was injured on the job. After my knee surgery, I was deemed physically disqualified from going back to my former position as an IEA. Ten days before my two-year probationary period ended, the Deputy Field Office Director offered and I accepted a position as an assistant.

In October 2010, the agency gave me a Settlement Agreement, but I had issues with the fact that I would still be on probation. At the end of February 2011, the agency gave me another Settlement Agreement, which my union representative told me would be good for me to sign, so I did. After reviewing the document, I realized it was actually detrimental to me so I rescinded the agreement in March 2011. Consequently, the agency sent me an email stating that, since I did not sign the agreement, they were retroactively demoting me to an assistant as of Feb. 28, 2011.

I worked under the FCIP from July 2007 – March 14, 2011. Are they able to retroactively demote me AFTER the Executive Order stated that, on March 1, 2011, if you had completed at least a year of your probationary period, you would be converted?

A:

I can’t answer this question without seeing the settlement agreement you say you rescinded. Also, you say you were on FCIP for 3 ½ years, but FCIP was a two-year program. I suspect there is more to your story.

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 – Exempt from Paying Social Security?

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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:

After my CSRS retirement from the government, can I legally opt out of paying Social Security in future employment endeavors? I will retire with 40 years of military time, and due to my secondary employment I have held throughout the years, my CSRS gross will be $86,0000, nullifying any Social Security benefit for which I may be entitled. I intend to seek other work and do not want to pay for something I will never obtain.

A:

You have to pay Social Security or employment taxes for any covered job no matter how old you are or how long you’ve been working and paying into the system.

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 – Staggered AWOL

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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:

In 2011, I exhausted all my sick and annual leave and took FMLA leave. Shortly after I returned to work, I was issued a leave letter and was told any leave in the future would be charged to AWOL, unless a family member or I was in the hospital. I had filed an EEO complaint and had an informal meeting, unfortunately because I was sick I failed to file a formal. I do wonder if the AWOL leave letter was a form of retaliation.

Now, I work for another agency and they have given me a letter proposing 30-days suspension. Is it legal for them to charge me AWOL even when I am sick with a disability like depression? If I am suspended, can it be over a period of time, like one day per week, or something like that, so I’m not deprived a salary as it would further depress me.

A:

Yes, you can be charged AWOL even if you are sick if you have used your sick leave and do not meet agency standards of practice for granting advance leave, leave without pay or donated leave. Whether your suspension is served all at once or is staggered is a matter of discretion with your agency.

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.