Ask The Lawyer

By Debra Roth

Q & A Session – 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:

I am receiving the FERS supplement. I retired in 2006 at the age of 55. I was considered law enforcement.

The supplement ends the month before age 62 (when I am eligible for Social Security benefits). Since I was “forced” to retire because of my law enforcement status, I would like to know if there are any provisions to extend the FERS supplement to age 66 (when I receive full Social Security benefits).

A:

No. The FERS supplement only goes to age 62. There are no exceptions. In fact, the FERS supplement is a benefit that some in Congress seek to eliminate. Enjoy it while you can.

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 – Resign or be Fired

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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 called into the office late on Friday afternoon and was informed I had to resign by Monday at noon or be fired. The local union advised me to resign. I was informed that I was ineligible for any rehire at the agency. My SF50 says that I resigned for personal reasons.

Since I am ineligible for rehire at the agency, is it a waste of time to consider employment at other federal agencies as well? Would any other agency have access to the records which were used to make this determination? What rights do I have as a separated employee based on the terms of my resignation?

A:

Most agencies will require you to fill out an OF-306 declaration for federal employment. The form asks whether, within the last 5 years, you have resigned after being told you would be fired. A truthful answer makes future federal hiring unlikely. A false answer could lead to a criminal conviction or a finding of unsuitability actually barring you from future employment.

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 – Getting Rehired after Misdemeanor Charge

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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 resigned from the federal government in 2011 after being charged with a misdemeanor for unauthorized computer access to prevent being terminated. I have been fully rehabilitated and have completed my one year probation for which I was sentenced for the offense. Do you think I can get rehired with the federal government again? I just applied for a lower grade position with another federal agency. I’m concerned the past criminal offense will prevent me from being considered for reemployment with the federal government.

A:

Rehire may be difficult. You most likely will have to disclose both the charge and the 2011 resignation to avoid termination. Even if an agency decides to hire you with that information, OPM could declare you unsuitable. Also, the nature of your conviction will likely make you ineligible for 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 – Missing a Doctor’s Appointment

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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 a federal agency. I had scheduled a doctor’s appointment last week but had to cancel twice because of management. The second time, I had told them I had a doctor’s appointment and that the additional duties they requested I complete outside my normal work hours would cause me to be late for my appointment, but management refused to let me complete the duties another day.

Can management deny this?

A:

Yes. You may file a grievance if you believe management acted arbitrarily or improperly toward you. Eventually, they have to let you have your doctor’s appointment.

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 – Remedies for False Allegations of Discrimination

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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:

False allegations of discrimination have been made against me by an employee I supervise. She made the allegations prior to mid-year evaluations – which I provide as the rating official.

What are my remedies? Can I sue her? Who do I complain to?

A:

Your remedies are limited. Please see my Ask the Lawyer column EEO Complaints Rough on Managers, but Being Part of Process Helps. You are best advised to purchase professional liability insurance for future claims. I also suggest you join a management association such as the Federal Managers Association or the Senior Executives Association (if you are SES or on an SES track). These groups deal constantly with concerns such as the one you raise.

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 to do when facing a congressional investigation

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Congress has always had oversight of the executive branch. Lately, it seems that this oversight function has operated more frequently and with greater intensity. And the political scapegoating of career employees appears to be at an all-time high.

So what can you do if you find your federal career has become a target for a congressional investigation?

In a congressional oversight investigation, you have a right to counsel and a right to plead the Fifth Amendment if your testimony can incriminate you. Beyond that, your ability to avoid, influence or control a congressional investigation is limited and largely controlled by an awareness of the methods by which Congress conducts its inquiries. It is also helpful to know if you are likely to be a personal scapegoat for some political grandstanding or a witness as a part of an inquiry into an agency program or action. Another way of looking at this is: Does the committee view your testimony as helpful, or is it out to get you?

Congressional investigations are often about making political points and not about determining truth or justice. In responding, do not expect fairness or reasonableness.

One of the methods Congress uses is a deposition where the witness appears “voluntarily.” The voluntary appearance sometimes occurs because of the threat of a subpoena. The advantage of the deposition is that it occurs somewhat informally and privately, although what is said is a matter of record. The questioning is usually done by congressional staff, not necessarily by members of Congress. Representatives from both parties conduct the questioning, which is transcribed and occurs under oath. The deposition avoids, at least for a time, the glare of the cameras that accompany a congressional hearing.

If you are asked to appear for a deposition under threat of subpoena, consider whether your agency management has your back. This is important because of the right to counsel. Sometimes your agency will be happy to have its attorney sit in the deposition and advise you.

If this happens, remember that the agency lawyer represents the agency. If you are less than comfortable, you are entitled to your own counsel at your own expense, but you cannot have both your personal lawyer and the agency lawyer in the same deposition.

It can be an awkward position for a potential scapegoat on a political issue, particularly those issues with high media visibility. Care and independent advice is most necessary if you think your agency may abandon you. It is worth at least a small investment for independent advice when you face a fact-finding deposition.

A less formal method of oversight is a simple fact-finding meeting with staff members of one or both political parties. Often, these informal meetings might occur through an agency’s legislative affairs office. In fact, you will probably first hear about congressional interest from legislative affairs. Ask many questions. Find out who in Congress cares about the issue. Learn whether your agency’s inspector general has investigated the matter.

The advantage of the informal meeting is that you can have your own lawyer there and agency representatives can also be present. This is more of an advantage if you and the agency are largely on the same page. Again, you need to make this assessment and determine if you should hire your own counsel, who also can make some of the informal inquiries that might satisfy Congress.

The most formal oversight is the hearing. That occurs in public with media. If you are not part of an agency team and you are asked or subpoenaed to testify at a hearing, you definitely want your own lawyer. You have the right to submit written testimony, but whether you do so should be discussed with counsel.

If there is any way to avoid being a witness at a hostile hearing, pursue it. Resigning your employment is not enough to avoid the reach of Congress. A subpoena can be issued to private citizens, as well as to federal employees.

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 – Should I do a Desk Audit?

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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 assigned additional duties and am doing the responsibilities of 1.5 employees. I have proved my case statistically, comparing my workload to same positions. Is it worthwhile to have a desk audit to ask for additional staff or to be compensated for the additional workload?

A:

Desk audits carry risks. They tend to be conservative and cognizant of upward grade creep that has occurred in many agencies. While a desk audit could result in a higher grade level, it can also result in a lower one. Beware what you ask for!

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 – Liability for Activity on Federal Property Outside of Working 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:

I have become aware of a civilian employee who comes to work about an hour early in order to use the shower in our federal building. She is not on the clock or compensated for this time. If she is on federal property outside of working hours and is somehow injured, who is liable?

Also, are there any federal regulations that state employees may not be at their place of work outside of working hours?

A:

I know of no federal regulation that prohibits employees from being at their place of work outside work hours. Individual agencies or worksites might have such rules.

Workers compensation entitlement is based on being injured while performing work. Slipping and falling in the shower at work an hour before the work day starts does not seem to fit that definition, but there could be special circumstances (e.g., law enforcement who perform physical training as part of their jobs) that might justify a workers compensation award.

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 – Benefits to Joining Armed Services/National Guard Reserve Unit

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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 benefits, if any, to current USPS/federal employees who wish to join an Armed Services/National Guard Reserve Unit. Can one create an initial enlistment (Basic Training and Qualifying School) and return to work under the same status as when before they left…versus one who has prior service skills who rejoins at his/her liberty as a Reservist and has no effect to pay or seniority. What would be required for a Leave of Absence?

A:

OPM and the U.S. Code outlines the employment rights and benefits of federal civilian employees who perform active military duty, which includes leave usage, health benefits, life insurance retention, restoration rights, etc. For instance, federal employees who perform active military duty may request paid military leave and an eligible full-time employee accrues 15 days (120 hours) of military leave each fiscal year. An employee who enters active military duty (voluntarily or involuntarily) has full job protection, subject to applying for reemployment within certain time limits. Visit http://www.opm.gov/oca/compmemo/2001/2001-09a.asp for additional details.

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 – Employer Disclosing Medical/Private Information

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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 informed that my employer told a co-worker of mine that “I must be sad/mad that she is pregnant because I cannot have any kids.” Three years ago, I disclosed in private to my employer that I will be having surgery regarding my reproductive organs due to a recent illness. Never once did I say I could not have kids. Is there anything I can do?

A:

Can you prove that your employer released this private information or it just supposition on your part? Are you a federal employee? Was the information contained in an official agency record? The answers to these questions may reveal a potential violation of the Privacy Act.

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.