Ask The Lawyer

By Debra Roth

Q & A Session – Reasonable Accommodation for Sensitivity Syndrome

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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 diagnosed with sensitivity syndrome, and perfumes, colognes and many cleaning products make me ill. I have been working at my current location for five years and had many problems with this illness with both co-workers and management. Last week my management and safety had a meeting and stated that everyone has a right to wear anything they want and I basically have a right to not get sick. I have three different letters from doctors stating reasonable accommodations should be given to me to get away from these fragrances. Management told me that they have tried many times to accommodate and now refuse to move me. What should I do?

A:

If your disability reasonable accommodation request has been denied, you may, within 45 days of the denial, file an EEO complaint. The issue in the complaint is whether an accommodation to help your medical condition would be an undue burden on the 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.

Q & A Session – Bathroom Breaks

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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:

Are we required to notify our supervisors regarding bathroom breaks?

A:

Yes, if the supervisor imposes such an expectation.

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 – Jurisdiction under MSPB and EEOC

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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:

A case at the Merit Systems Protection Board (MSPB) is scheduled for a jurisdictional hearing after the Board reversed an administrative judge’s dismissal for lack of jurisdiction. At the same time, the case is pending appeal to the Office of Federal Operations on dismissal from the Equal Employment Opportunity Commission (EEOC), which originally dismissed the complaint because of the previous MSPB decision on jurisdiction.

The filer wants to pursue the EEO if the pending appeal is ruled in his favor. How does he protect his rights to MSPB while the EEO decision is pending, in case EEO rules against him on the mixed case issue? Would MSPB entertain a motion to dismiss with prejudice until the Office of Federal Operations rules on the processing of the complaint?

A:

The answer depends on whether MSPB has jurisdiction. This question can only be answered by the MSPB. You may raise all your EEO issues at the MSPB, but you may not receive a hearing at the EEOC on an issue when the MSPB has jurisdiction.

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 – Veterans’ Preference Reassignment

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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 30% or more disabled Vet and my Post Office building is downsizing. They are offering jobs to people who are about 80 miles away even though our contract for the Maintenance Craft states we cannot be relocated to farther than 50 miles. I was a mailhandler for 18 years and switched to another job two years ago due to my disability. By switching crafts, I started a whole new seniority and now I would be the first to go and most likely will be offered another position more than 80 miles away. I cannot travel that distance with my disability.

Is there anything I can do to help secure a chance at one of the local custodian jobs?

A:

I can’t answer this question without a thorough review of your collective bargaining agreement (CBA) and the Postal Service’s RIF process. You may very well be out of luck. I suggest you raise your issue with the union. But, ordinarily unions are quite concerned about sensitivity provisions in CBAs. There may be another alternative.

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 – Paid 15-Minute Breaks

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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:

If you are a federal employee, do you have the right to leave your workplace and do an errand on a 15-minute paid break?

A:

No.

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 – Breach of Settlement Agreement

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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 filed an EEO claim against my agency based on retaliation after the agency abolished/reassigned my position. The agency and I mediated, and both parties then signed a “settlement agreement” that would return me to my prior position before the EEO claim.

The day after I was supposed to return to my prior position, the agency wanted to revise the agreement. I stated that I would agree to their revisions if they agreed not to abolish/reassign my position again, unless the abolishment/reassignment happened in at least two other (33%) Regional Offices. The agency would not agree to this request and sent me an email advising me the agency no longer has an agreement with me. It is clearly stated in the settlement agreement that, in the event either party breaches this agreement, the other party may file proceedings to enforce this agreement.

Is the agency in breach of the agreement, and can I hold them accountable to the letter of the law?

A:

Whether the agreement is violated cannot be answered here. If you believe it is, you have a process for bringing to the attention of an office in your agency that will assess your claim. An unfavorable decision may be appealed to the EEOC.

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 – Workplace Accommodation of Last Resort Reassignment

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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 placed in the workplace reassignment for a disability and am a GS-12. Can I be reassigned to a GS-12/13 and go in as a 12? There are many jobs open as 12/13 where I qualify as both. I am currently in the GS-12.

A:

If you were a GS-12 and are now a GS-12, your promotion to a GS-13 is at the discretion of your agency. It may not be denied for illegal reasons, such as discrimination or whistleblower reprisal. Otherwise, there is no effective remedy.

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 – DSR in Probationary Position

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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 who is over 50 years old and has more than 20 years with the federal government. Can I qualify for a Discontinued Service Retirement if I received an unacceptable performance rating and they attempt removal from an agency and job where I was under probation as a new employee with less than one year in that job?

A:

Your probationary status does add a complication to what would normally be a routine discontinued service retirement. OPM will make the final call, but so long as your dismissal papers reflect unsatisfactory performance and no misconduct, I believe OPM will be favorably inclined to your DSR.

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 should know about appealing a furlough

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This article originally was first posted on this blog on May 14, 2012. We are re-posting it because of its renewed relevance to the current sequester cuts and expected furloughs.

The ever-present threat for federal employees is the furlough.

It is there when there is a budget showdown over a continuing resolution, and last summer, groups of Federal Aviation Administration employees were furloughed because Congress could not agree on legislation.

In most cases, Congress approves back pay and everyone goes home happy, and you look back on it and say it was not such a big deal. But there is no guarantee that Congress will continue to approve back pay, and some agencies have threatened periodic furloughs for groups of employees in order to meet budget shortfalls.

What if you are furloughed and you do not think you will receive back pay? Do you have any rights? If you receive no back pay for your furlough and those so-called essential workers are paid, can you challenge the fairness of designating you as nonessential if you did not get paid?

Congress has defined a furlough as being in a nonduty and nonpay status for 30 days or fewer because of a lack of work or funds, or for other nondisciplinary reasons. A furlough can only be ordered to promote the efficiency of the service, and you even have an appeal right to the Merit Systems Protection Board if you are subjected to a furlough. In fact, a furlough is considered an adverse action.

There are two circumstances when furlough appeal rights might really make a difference. The first is when a furlough is used to hide a true motive of a disciplinary action. This is probably a rare occurrence, but if someone is furloughed and he or she believes the agency is claiming there is a lack of work and thus a furlough is necessary, the employee could appeal and perhaps prevail if evidence exists that the real reason for the furlough was personal animus.

The second circumstance when a furlough appeal is meaningful is when the issue is about the fairness of the selection process for those subjected to the furlough. An appeal could be filed and evidence showing a lack of fairness in general could negate the furlough.

Furloughs of longer than 30 days are considered reductions-in-force (RIFs) and are appealable to MSPB under the RIF rules, not the furlough adverse action rules. This could present a confusing circumstance, particularly if some employees are selected for a furlough and others are not. Perhaps that is one reason furloughs are rarely used except as a result of congressional action shutting down the government.

The bottom line on furloughs is that an agency that furloughs its employees for clear-cut reasons related to a lack of work or funds and does not discriminate or treat its employees unfairly will most likely be upheld by MSPB. Because of this, there are few furloughs and fewer furlough appeals.

A couple of variations on this theme could occur. Recently, many state and local public employees had furloughs of a pay period or a month. Some federal agencies have considered this option because of budget shortfalls. This is a legitimate reason for a furlough as long as all employees in the affected part of the agency are furloughed. When an agency starts to pick winners and losers with some employees furloughed and others considered essential, it stands a chance of having the furlough overturned.

An employee is supposed to receive 30 days’ notice before a furlough. Sometimes this is not possible, usually because of Capitol Hill standoffs. The Office of Personnel Management allows for emergency notice if the advance notice cannot be met. If you are furloughed and you think it is unfair, you have 30 days from the start of the furlough to appeal to MSPB.

The complexity of figuring out the fairness of those who go to work in a government shutdown and those who stay home is difficult. Perhaps this is one reason that, to date, Congress has always decided to pay back pay for furloughs caused by failure to approve a budget or a continuing resolution.

Q & A Session – Getting Hired for New Job While Under PIP

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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 with over 20 years of service. I have always received at least a satisfactory appraisal and have numerous recent performance awards. A year ago, I started a new federal job and, after seven months, I received an unacceptable appraisal with a zero rating, and I was placed on a 90-day PIP. I am desperately trying to get out of a very bad job situation.

If a potential employer does not ask for a copy of the appraisal or does not ask if it was satisfactory during the application or interview process and offers me a job, can they withdraw the offer or terminate me once they receive a copy of my official personnel folder and find the unsatisfactory appraisal in it?

A:

They can withdraw the offer before you start. Once you start, assuming you are not required to complete a probationary or trial period, you may not be terminated, unless you are less than honest during the application process.

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.