Ask The Lawyer

By Debra Roth

Q & A Session – Reduction in Pay

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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 worked 24 years at a certain base. Twenty-one of those years I worked as an engineer and attained a Senior Engineer position at a GS-13 rate. With the “sundown” of the H3 platform which I worked with, I was given the choice of being an engineer on other programs or a manager with the foreign military sales. I chose the latter.

That position has now been eliminated here, with no other comparable positions within 1.0 competency.

I have been offered the availability to return to the Engineering competency, but with a loss of Senior Engineer. Basically, a drop from a 13 to a 12.

How would “safe pay” be applied to my situation?

A:

If your position is abolished and you are forced to accept a lower grade, you should have both save grade for two years and the save pay indefinitely after that. If your save pay salary is higher than the highest pay of your new grade level, you are only entitled to 50 percent of any annual comparability increases, if and when those annual increases resume.

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 – LWOP Without Notification from 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:

In October 2010, I submitted an application for medical/disability retirement. On March 11, 2011, my supervisor told me that I had to leave the agency within two hours because I had applied for disability retirement and that I cannot work. I was placed on LWOP on March 7, 2011, and have been until a final decision is made. This has all been done without any notification.

Can I be placed on LWOP while waiting for a determination without any notification?

A:

You may use your sick or annual leave and cannot be forced to take LWOP unless you have no sick or annual leave. If you are able to work, your supervisor may not force you to take LWOP. Being able to work may, however, be inconsistent with your disability retirement application.

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 – Retained Pay

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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 GS-08 employee in the federal government. Several months ago, my agency recruited employees under the Federal Career Intern Program (FCIP) and many recruits were brought in using the Veteran’s Recruitment Appointment (VRA). I was offered entrance into the program. I was informed that since I am currently in the government system, I would be brought in as a GS-05, step 10. I think I may have been entitled to pay retention. Can they deny me retained pay?

A:

Your question does not provide sufficient information to allow me to respond with a concrete answer. It is unclear to me whether you are, for instance, a permanent federal employee or a temporary employee, or if you were presented with the GS-05 position because you applied under a career intern program or a veteran’s recruitment program.

However, given that you are a GS-08 and applied for a GS-05 position, I suspect you might be a term or temporary employee. If so, it should be noted that temporary or term employees are not entitled to pay retention. See 5 CFR § 536.102.

Generally, permanent employees are entitled to pay retention for a reduction in grade when the reduction in grade is based on a “management action,” and the reduction in grade is not for cause (such as poor performance or misconduct). Generally, a change in grade made pursuant to an employee’s request, such as a requested transfer, is not eligible for pay retention. A major exception to this rule, however, is that recruitments made under a “formal employee development program” are considered to be a “management action.” See 5 CFR § 536.103; 5 CFR § 536.301-536.306. Thus, if you were a permanent employee recruited for the GS-05 position under FCIP or VRA (as I suspect you may have been given that you say you were “offered entrance into the program”), I believe there is a good chance you are eligible for pay retention.

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 – Administrative Nurses Request for a Compressed 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:

Can management deny administrative nurses’ requests to change their work schedule to a compressed work schedule using U.S. Code 7422?

A:

I assume your question inquires as to whether the Secretary of the Department of Veterans Affairs has the authority to deny administrative nurses, as a group, their request to transition to a compressed work schedule under U.S. Code Title 38 § 7422. Title 38 §§ 7421-22 grant the Secretary the authority to prescribe by regulation “the hours and conditions of employment” of a number of different medical personnel, including “registered nurses,” subject to collective bargaining agreements.

It is safe to assume, then, if there is no existing collective bargaining agreement which curtails the Secretary’s authority under Title 38 § 7421 with respect to registered nurses, that the Secretary may deny the request of registered nurses to transition to a compressed work schedule. If “administrative nurses” are considered within the umbrella term “registered nurses” at the Veterans Health Administration, then yes, the Secretary may deny a request from the administrative nurses to transition to a compressed work schedule.

However, whether administrative nurses fall within the definition of “registered nurses” is unclear. To make such a determination requires further information not available from your question.

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 – VERA/VSIP Employment Restrictions

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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:

VERA/VSIP both carry restrictions on reemployment within the federal government. Do those restrictions apply to jobs in the legislative and judicial branch? How about federally funded research and development centers (such as MITRE) and federally funded foundations (such as the HM Jackson foundation)?

A:

As you are aware, an employee who left the federal service under the Voluntary Early Retirement Authority (VERA) or Voluntary Separation Incentive Payment (VSIP) may, upon reemployment, be subject to certain financial impositions.

Generally, only employees of executive agencies are eligible to separate under VSIP, though the Smithsonian Institute and the Administrative Office of the United States Courts may, at their election, institute a program similar to VSIP. See 5 U.S.C. § 3521 as amended. Should an employee who received a VSIP payout become reemployed under a “personal services contract (or other direct contract) with the United States Government (other than an entity in the legislative branch)” within five years of receiving the VSIP benefit, it is generally required that he or she repay the entire amount of their separation incentive before beginning work. See 5 U.S.C. § 3524. Thus, the penalty on reemployment with the federal government for individuals separated under VSIP applies to any individual with a direct employment contract with the federal government, even if that is an employee of the federal judiciary or federal foundation. While the language above appears to exempt the legislative branch, other provisions in the same section appear to merely allow a waiver of repayment for employees of the judicial and legislative branches where “the individual involved possesses unique abilities and is the only qualified applicant available for the position.” Most other agencies may only waive VSIP repayment for temporary reemployment under emergency circumstances. Id.

The rules governing which employees are eligible for VERA are more complex, but cover most federal employees. See 5 U.S.C. § 8331 and § 8336 for CSRS employees and 5 U.S.C. § 8414 for FERS employees. When an employee receiving an annuity under VERA becomes reemployed with the federal government, his or her salary will generally be offset by the annuity to prevent “double dipping.” It is possible for an agency to waive the offset, but there do not appear to be any general exemptions to the rule, though the rules apply differently in some instances to current or former Members of Congress and federal judges. See 5 U.S.C. § 8344.

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 – Annual Leave when Fired or Terminated

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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. I believe my employer may take a personnel action against me in the next couple of week that could cost me my job.

If I am fired, will I still receive a lump sum payment of my annual leave or will that be forfeited to the government?

A:

Under Title 5, Section 5551 of the U.S. Code, you are entitled to receive a lump sum payment for accumulated, unused annual leave upon separation from federal service.

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 – Making Agency Comply with Recommendations of 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:

In 2008, I was subject to a desk audit. The results of the audit stated that my position should be upgraded. However, an agency official disregarded the results and claimed that the human resources employees who conducted the audit were not qualified to do so, even though the audit was conducted at the direction of that same agency official. Can I compel the agency to comply with the recommendations of the desk audit?

A:

You may file a classification appeal at your agency or with the Office of Personnel Management. You can find the appeal procedures at 5 CFR § 511.601-511.616.

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 – LWOP Transfer

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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 spouse is in the military. I was previously employed as a part-time NF02 Recreation Assistant at an Army installation for nine months. While I held that position, my spouse received orders for a permanent change of station (PCS) to another military installation. I took three weeks of leave without pay (LWOP) as a result of the move before I found new employment at our new installation; I was again employed as a NF02 Recreation Assistant, but now as a full-time employee. My hourly pay is approximately $4 less per hour than it previously was. My understanding is that an employee who is on LWOP status as a result of a PCS is entitled to the same pay upon return to duty and that the change of station is merely considered a transfer. The human resources office informed me that is “not how it works.” Am I stuck at this lower pay rate or do I have some recourse?

A:

Compensation for positions under the Nonappropriated Fund pay scale, like other government pay scales, vary for positions of the same grade between geographic locations. See OPM’s Operating Manual: Federal Wage System – Nonappropriated Fund, Subchapter S8-3(a). For instance, an NF02 in Washington, DC, may legally receive a higher hourly wage than an NF02 in rural Montana.

While you have not disclosed your former and current pay stations, it appears likely to me that you have retained your grade but that your new duty station is in a locality where the hourly compensation scheme is somewhat lower than at your previous duty station. Generally, when a Nonappropriated Fund employee moves to a different wage area, he or she is not entitled to pay retention because such a move is considered to be at the employee’s own request. See OPM’s Operating Manual, Subchapter S9-4(a)(7). From the wording of your question, it appears to me that you did indeed request the transfer, albeit for important familial reasons.

If you were subject to a step decrease, please note that you were not entitled to grade retention. You had only been an employee for nine months, while eligibility for grade retention requires that, among other things, employees must successfully complete one year of employment at the higher grade level. See OPM’s Operating Manual, Subchapter S9-3.

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 – Comp Time for AUO 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 law enforcement employee under administratively uncontrollable overtime and I am required to work two hours per day of overtime – 8 hours of normal duty and two hours of overtime covered by AUO. Sometimes I am required to attend meetings away from my official duty station. The commute and the duration of the meetings occasionally take me past ten hours of work in a day. Can I claim compensatory time for the commute and meeting when they are after my eight hours of normal duty? Or can I claim compensatory time for that work when I exceed ten hours of work?

A:

It appears that you are asking about compensatory time off for travel. Compensatory time off for travel may be claimed by an employee receiving administratively uncontrollable overtime (AUO) pay under 5 U.S.C. 5542(c)(2) if the activity meets the requirements in 5 CFR 550, subpart N, and travel time is not compensable under 5 CFR.112(g) or 5 CFR 551.422. Your time in meetings does not meet the requirements of 5 CFR 550, subpart N. Furthermore, you are already being compensated for up to ten hours of work, and thus any time under ten hours is compensable (and already compensated) and thus you may not claim compensatory time off for it.

You may be able to receive compensatory time off for travel for the amount of time you spend traveling to and from those meetings which come after you have already performed ten hours of work. However, sometimes an official duty station can comprise a geographic area rather than a specific office, and thus it is possible that the commuting you do is not technically considered to be time in a travel status. In any event, when you work more than the ten hours covered by your basic pay or AUO, you are probably eligible for compensatory time off, regular overtime pay, or some combination of the two. Also note that if you travel to the meetings in your personal vehicle, you may claim mileage expenses.

The Office of Personnel Management provides additional helpful information here: http://www.opm.gov/oca/pay/html/flsaovertime.htm.

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.

In filing complaint, be careful in choosing appeals process

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The Merit Systems Protection Board and the Equal Employment Opportunity Commission are independent agencies that hear and resolve employee workplace complaints. They have different but sometimes overlapping jurisdictions, and an uninformed decision about which forum to choose can sometimes lead to disappointment, unanticipated delay and a surprise about where the employee’s complaint is heard.
EEOC’s mission is to eradicate illegal discrimination from the federal workplace, while the MSPB’s mission is to protect the merit system, which can include adjudicating prohibited personnel practices. Since it is a prohibited personnel practice to illegally discriminate, MSPB will also hear and decide discrimination cases that are within its jurisdiction.
EEOC can hear a wider range of cases than MSPB. EEOC will hear any case that concerns a complaint about terms and conditions of employment, such as hiring, firing, demotion, loss of benefits, nonselection for promotion, disciplinary actions, negative performance ratings, significant reassignments or a hostile work environment, if the hostile work environment alters the terms and conditions of employment.
MSPB considers adverse actions involving suspensions of 15 days or more, demotions or removals. MSPB also hears whistle-blower reprisal cases, retirement claims, reduction in force appeals and several other types of specific claims.
Most of the EEOC-MSPB overlap is in the adverse action area, when an employee claims he or she was demoted, suspended or fired for a discriminatory reason.
The first consideration if determining where to file a complaint is to decide if your particular workplace complaint is within MSPB’s jurisdiction. For example, you might receive an unsatisfactory performance rating, followed by a performance improvement plan (PIP), followed by a removal.
The unsatisfactory rating is definitely within EEOC’s jurisdiction but not MSPB’s, unless you also claim whistle-blower reprisal. The performance improvement plan is a preliminary matter and is not within EEOC’s jurisdiction unless it is retaliatory for prior EEO activity, or part of a pattern of a hostile work environment. The removal is within the jurisdiction of both MSPB and EEOC.
So, you see, this gets complicated and is important, because you only get to choose one process.
To complicate things further, Congress dealt with this overlapping jurisdiction by creating “mixed cases.” An employee who has a mixed case can choose either process, but not both.
The biggest difference between the two agencies is that MSPB usually decides cases quickly, within about four months. EEOC can take years if the case includes a hearing in front of an EEOC judge. But in a mixed case, there is no hearing in front of an EEOC judge. The hearing is always eventually at MSPB.
An employee who has been separated and who chooses the EEOC process may not receive an initial decision for about a year. During this year, the employee does receive a Report of Investigation on the EEOC part of the case, which can be helpful in adjudicating the discrimination part of an adverse action appeal at MSPB. The issue is: Is it worth the delay?
In our hypothetical example, the unsatisfactory rating and the PIP (if it is retaliatory or part of a pattern of a hostile work environment) will proceed through the entire EEOC process, including a separate hearing before an EEOC administrative judge. This can be long, arduous and frustrating.
The mixed-case process is difficult to navigate without a lawyer. In choosing where to file a complaint, be aware that most workplace disputes are not sufficiently severe to fall within MSPB’s jurisdiction. If you choose EEOC, remember that you will have to prove discrimination to ultimately win there, and that can be difficult.
At MSPB, if your case is within its jurisdiction, you can win without proving discrimination, but you must show the agency action is without merit or is tainted with harmful procedural error or a prohibited personnel practice.