Ask The Lawyer

By Debra Roth

Q & A Session – Basis for 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:

Several people in my organization have received promotions from GS 7-9-11-12. Others from GS 9-11, and some from GS 11-12-13 with all of them occurring in a “drug deal” behind closed door fashion, which I believe may have violated federal merit principles. I, however, have been denied the same kind of promotion.

Can I file an EEO complaint based upon age, race and gender discrimination? I am over 50 years old and a white male. All of those who benefitted were under 50, and/or female and/or minorities.

A:

Some positions have career ladder progressions associated with them. I do not know if you are in such a position or if the others were. Even in a career ladder position, the promotion is not automatic. Management must determine that you are able to perform the duties of the next higher grade before it authorizes the non-competitive 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.

Q & A Session – Background Checks

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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 were eventually charged with a DWI and then had the charges dismissed, should you declare this in a background check as an arrest? If you were eventually charged with a DWI, then were found innocent by jury, should you declare this in a background check as an arrest?

A:

The answer to both questions is yes if the background investigation questionnaire asks for arrests and not just convictions. The same requirement to disclose applies to expungements.

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 Disagreeing with Management Constitute Insubordination?

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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:

Is it lawful for an employer to discipline an employee (subordinate) for insubordination or any other type of charge for failing to “shut up” during a discussion?

For example, I’ve had several meetings in which I could tell that the new management wished I would stop disagreeing with him. At the end of these discussions, I’ve always done what they’ve told me to do, but I’ve felt within my rights to tell them in person that I disagreed with what they were suggesting. I always did this in a respectful manner, referring to them as “Sir.” I am not speaking of a situation where I am following them around the office saying, “But, but, but…” I am talking about a meeting in which we are discussing the future direction of this office and policies within it and I happen to disagree with what he says.

A:

Most leaders will seek the input of those around them, including subordinates, when making day-to-day decisions. When the input is unwelcome, as it sometimes is, a supervisor is within his or her rights to say “Stop talking. I don’t want to hear anything else from you.” An employee who persists would be insubordinate.

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 – Using Sick Leave Before Retirement

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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 are the specific policies on using sick leave prior to retirement for CSRS with over 30 years of service? Would a doctor’s note be adequate? It seems to be a better deal to get a full salary rather than retirement salary for sick leave.

A:

You may use sick leave for medical appointments, medical incapacitation, to care for a sick family member, to attend a funeral of a close family member or to arrange an adoption. An agency can require a doctor’s note for an abuse of three days or more. An agency may also require a doctor’s note for a shorter absence if it tells the employee in writing of such a requirement. An agency may require that the doctor’s note be of sufficient detail that it actually describes a medical incapacitation.

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 a Union Exist at my Agency?

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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 find out if a union exists at my agent? My supervisor is changing my critical elements in my performance appraisal plan so that I will fail.

A:

Check with your HR office to see if you are in a bargaining unit represented by a union. And remember, management ultimately has the final discretion about the content of a critical element.

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 Program for Federal Employees

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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 new federal employee who was hired in 2012. I was told that I have to pay into the Federal Employees Retirement System (FERS) Annuity. My questions are:

  1. Am I required by law to participate in the FERS annuity program or can I opt out?
  2. How does paying into this system benefit me and how does this work?
  3. If I leave the federal government before I retire, will I get my money back? If not, what happens      to the money?
  4. How is this different from Social Security?

A:

  1. You cannot opt out of FERS.
  2. You pay in and receive an annuity once you are vested with five years of service. If you also meet minimum retirement age, you may receive an immediate annuity. Otherwise      you can receive a deferred annuity at age 62.
  3. If you are not vested or are not interested in a deferred annuity, you can receive a refund of your FERS contributions upon leaving federal service.
  4. FERS is an annuity that is separate from and in addition to Social Security benefits. FERS does not affect your social security entitlements.

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.

Make the best use of probationary period

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There are good reasons for a probationary or trial period for new federal employees.

First, only so much can be learned from a job interview. Second, effective supervisory guidance and mentoring during the probationary period can help a struggling employee become an effective contributor. Third, if termination is necessary, it is easier to remove an employee during the probationary period than after.

Removal during the probationary period is not, however, without risk if it is done incorrectly. Managers should know how long the probationary period lasts. Some periods are for one year, and others, for two or more. Check with your human resources office to be sure, and keep track of the date.

The failure of an employee to survive a probationary period should never be a surprise to the employee. If it is, and particularly if the surprise of separation comes toward the end of the probationary period, the employee will be more likely to fight back with an equal employment opportunity complaint or an allegation of whistle-blower reprisal.

The failure of a manager to deal effectively with a poorly performing or misbehaving employee during the probationary period provides the complaining employee with at least a plausible argument that the termination was motivated by improper animus.

The reason it is easier to terminate an employee during the probationary period is because the employee does not have the right to appeal the removal to the Merit Systems Protection Board. Those employees with appeal rights enjoy the protection of requiring their agency to justify and prove allegations that specifically must promote the efficiency of the service. This is a different legal posture for an agency than merely defending an EEO complaint or a whistle-blower reprisal claim.

When dealing with a problem or struggling employee during the probationary period, the manager should avoid procrastination. He should document encounters with employees. Interim ratings should be accurate. There is nothing more difficult to explain than the reasons why a probationary employee who received an outstanding or glowing interim rating is suddenly, six weeks or two months later, fired before the end of the probationary period for poor performance with no intervening documentation.

Imagine the following scenario: A probationary scientist is working at a research lab and observes a co-worker in an orange suit pouring the contents of containers clearly labeled as containing toxic materials into navigable waterways. The probationary employee reports this incident to higher headquarters, to the safety office and to the Office of Inspector General.

The probationary scientist is then fired. The agency’s ability to survive an allegation of prohibited whistle-blower reprisal depends in large part on the level of documentation it has to support reasons for the firing that existed before the employee’s most likely protected whistle-blower disclosure of both a threat to health and a violation of law.

When an employee challenges a termination during the probationary period through an EEO complaint or by alleging whistle-blower reprisal the burden of proof is on the employee and it is difficult for an employee to succeed. Also, the process for the complaint to be heard is lengthy. With documentation and prompt dealing with problems caused by probationary employees, the likelihood of a successful challenge by an employee is diminished further.

The real advantage to dealing early with struggling probationary employees is that they might just turn around and work out. Also, if the person does not improve, it is easier for him to accept his fate if the manager has kept him informed of his lack of progress.

Office of Personnel Management rules prohibit an agency from putting the reasons for a probationary period separation on Standard Form-50, but agencies do use a code to reflect that the employee was separated during the probationary period.

An employee who does not want that blight on his record might voluntarily resign to have a clean SF-50, making it easier for him to find a job in another federal 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 – Management and Bargaining Units

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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 Bargaining Unit because of my job classification. However, my position is one of direct management responsibility and I have access to extensive employee data and am regularly involved in helping with recruitment. I have input on a variety of management policy matters. Based on my duties, I feel I should not be in the bargaining unit, and no one else in my office is but me.

My supervisor has admitted that my position was misclassified and that I should not be covered, but I am told that the amount of effort to correct this is too great and that we’re just going to leave things as is.

Is there any legal ramification I could face if the union became aware of this situation? Could I be at fault or legally responsible in any way?

A:

You should not share sensitive information with the union or anyone not having a need to know. Otherwise, it is up to your management and labor relations office to straighten out your bargaining unit status.

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 – Compensation for On-the-Job Injury

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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 injured in 2009 while lifting heavy bags. As a result, I ended up with three herniated disc and two bulging disc. At times, I am in a lot of pain which interferes with my duties. I then got in trouble for improper lifting. Do you think I can get compensated for my injury? And if I do, will I lose my job or will I not be able to acquire another federal job?

A:

If you were injured on the job, you should file a claim for workers’ compensation. Your claim will be adjudicated by the Department of Labor. See your HR office for the appropriate forms.

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 – Performance Appraisal

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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 an employee received a mid-year rating of 4.8 but three months later received an annual appraisal that lowered one aspect making the overall a 4.6 and there was no evidence of any declined performance. Is this a case to pursue? The manager made a mistake at the mid-year by giving a 4.8.

A:

For a partial answer, please see the June 4, 2012, Ask the Lawyer column. If you can show that, your performance met the standards in question and you have not exceeded the grievance deadline, you may be able to make out a case. If management can show a mistake was made, it will likely prevail.

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.