Ask The Lawyer

By Debra Roth

Q & A Session – Supervisory Training

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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 held the same position for approximately six years. I have attended periodic training that is pertinent to my job. Two years ago, I got a new supervisor who is being career laddered into the position. She has been scheduled to take the same training that I have taken, but has canceled every time she is registered. This isn’t her entire job, but she is ultimately responsible for the program in our office.

She has rated me on my performance appraisal for the past two years on a program she has not been trained in and is receiving her career ladder promotions on schedule, even though she has not taken training for part of her job. Do I have any recourse?

A:

You do not have recourse unless your supervisor has been treated different from you. From your description of events, it appears to me that her treatment is very different from your situation. It appears you are trying to question a management decision affecting someone else. There is no forum for that. If you think a law or rule has been violated, you might inform HR or the IG’s office, but it is up to them to take action.

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.

Age discrimination versus mandatory retirement

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Most federal employees have a sense that discrimination based on age is illegal. If that’s true, why do most law enforcement officers and firefighters have a mandatory retirement age, usually 57, and most air traffic controllers face mandatory retirement at age 56? Congress passed laws both prohibiting age discrimination for most federal employees and requiring mandatory retirement based on age for limited occupations.

A review of the rules is helpful to understand how these seemingly contradictory principles can co-exist.
The age discrimination ban is intended to prevent employers from favoring younger employees at the expense of employees older than 40 only because of their age and not because of their job abilities. The law was designed to correct what Congress perceived as discriminatory practices by many employers based only on an unfair stereotype of older workers.

The law against age discrimination is different from other laws prohibiting discrimination. Age discrimination claims can be processed under the traditional equal employment opportunity system, but there is also an alternative to go directly to federal court 30 days after notifying the Equal Employment Opportunity Commission of the claim. EEOC claims must be filed within 45 days of the discriminatory event, and court claims, within 180 days.

One of the major differences between age bias claims and those processed under other anti-discrimination laws such as race and gender is the lack of compensatory damages. Successful age claimants receive only their promotion or a reinstatement and back pay. If claimants can prove that age discrimination was willful, they can receive twice their back pay as liquidated damages. But, compensatory damages covering such things as a loss of health, damage to reputation, humiliation, and other pain and suffering are not a part of the relief.

Also, attorney fees in an age claim are available only for attorney work in court. Thus, a claimant who uses an attorney to navigate only the EEOC process cannot recover fees for that part of the case.
Age cases are also difficult to prove. Simply being older and being mistreated is usually not enough proof of discrimination. To be successful, it helps to have a very significant age and qualification difference between the person claiming discrimination and the replacement. It also helps to be able to point to age-related comments referring to youth and vigor.

In age cases, you have to do more than prove you are more than 40 and subjected to mistreatment. If you are applying for a promotion at age 47 and the successful applicant is 45 or 49, it is unlikely that you will be able to establish an inference of age discrimination.

Some employees are offended and feel discrimination based on age when comments are made about the employee’s retirement plans. But such inquiries from employers standing alone are not sufficient evidence of age discrimination.

Nonetheless, the law is clear that an employer cannot discriminate based on age and cannot require you to leave your job just because you have lived a long time.

The exception is for air traffic controllers, law enforcement and firefighters. The courts have upheld the mandatory retirement laws as statutory exceptions to the age discrimination prohibition.

Congress has specifically said that it wants a young and vigorous workforce in these professions and has authorized a more lucrative retirement system for those who work in the covered field for at least 20 years. To make this system work, Congress specifically authorized agencies to set maximum entry ages for these jobs. For example, an agency can insist that someone becoming a law enforcement officer be no older than 37 when starting his or her career. Based on Merit Systems Protection Board precedent, this maximum starting age does not apply to preference-eligible veterans.

There are a few exceptions to the mandatory retirement age. First an employee must receive at least 60 days’ notice before being forced to retire. Second, most agencies may extend the maximum retirement age to 60 — age 65 at the FBI — for good reasons.

Q & A Session – Retirement and New Job Following RIF

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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 received a Reduction in Force in October 2011. I am 55 years old and have been verbally offered a job in Arizona. I am still waiting for the documented offer.

The wage grade I retired from was WG-10. The new wage grade I am sure will be lower with a different locality pay.

My present retirement income is $1,300 a month. Will I be subject to a pay reduction? Will my last high-3 grade be affected if I decide to accept the job indefinitely when my retirement is permanent? Will I be required to pay my own relocation costs? What kind of negotiating tools do I have as I am also a 5-point veteran?

A:

I do not fully understand your question. I am assuming you retired under discontinued service retirement and were not eligible for voluntary retirement. As such, you are eligible for reemployment if someone offers you a job. If you go back to work, you will stop receiving an annuity and will receive retirement credit for future service. If your new salary is lower, it will not reduce your high-3 as you have already determined that. If your new salary is higher, your high-3 could increase. Your pay will be set by whatever it is in the new location and you will most likely have to pay your moving expenses.

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 – FMLA Coverage

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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 federal employees who are stationed overseas eligible for Family and Medical Leave Act coverage?

A:

Yes.

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 Objectives

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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 supervisor at an Army medical clinic in charge of numerous civilian employees. After a recent HR issue, I was instructed to remove objectives involving “behaviors” from the employee appraisals, even though the evaluation report used by the Army requires ratings for “working relationships and communications” and “responsibility and dependability.”

Is there any specific guidance regarding the scope, content and structure of performance objectives measured in annual employee appraisals?

A:

I do not understand the direction you received and I do not agree with it. To some extent, all performance concerns behavior. Check out the Office of Personnel Management’s regulations at 5 C.F.R. Part 430. I think the performance standard you have been asked to eliminate accurately and precisely provides notice of the expected performance levels.

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 – Loss of Pay from Temporary Assignment from NSPS to GS Conversion

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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:

Section 1113(c)(1) of The National Defense Authorization Act for Fiscal year 2010 requires that no employee shall suffer any loss of or decrease in pay due to conversion from NSPS. Does this apply if, while on NSPS, the employee received a management direct reassignment and was compensated for their performance with base salary increases? My leadership informed me that I was not entitled to pay increases I received during my temporary assignment and that my pay was being set based on increases I would have received if not for the NSPS conversion.

A:

It seems your leadership is correct. Section 1113 of the National Defense Authorization Act for Fiscal Year 2010 abolished the National Security Personnel System and required all NSPS employees and their positions be converted to the statutory pay system that last applied to the employee’s position before the NSPS applied, or that would have been applied if the NSPS had never been established. That same section states that “no employee shall suffer any loss of or decrease in pay” as a result of the conversion back from NSPS. From your question, it is unclear whether your reassignment was always intended to be temporary when you took it. Assuming the reassignment was intended to be temporary, then the conversion from NSPS back to GS would not be the reason for your reduction in pay, but rather the termination of your reassignment, which would have taken place even if NSPS had never been established, making yours a lawful reduction in pay.

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 – NSPS to GS Conversion

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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 a GS-13 and accepted a promotion in August 2006 to NH-04 under the Acquisition Demo civilian management system. NH-04 was a pay band of GS-14 through GS-15. Later on, I was put into the NSPS as a YA-03 which had the same pay band as a NH-04. The primary reason I accepted the promotion and the job was because of the chance to earn up to GS-15 Step 10 pay, which is what my management was saying. I never would have taken the job at just the GS-14 pay level because I didn’t consider the position worth it. When NSPS went away I was placed in the GS system as a GS-14 Step 10. Now that I am a GS-14 I feel my earning power has been significantly reduced. Do I have any recourse with the government?

A:

If your Civilian Acquisition Workforce Personnel Demonstration Project position was converted to the National Security Personnel System, I’m curious to know why your position wasn’t converted back when NSPS was rolled back. Assuming, however, that your conversion from NSPS to the General Schedule pay system was appropriate, it seems you are without recourse.

The regulations for converting positions from NSPS pay bands to GS grades are contained in 5 C.F.R. § 9901.372. Before an employee converts from NSPS, a “virtual GS grade” is assigned, which is then used to set the employee’s pay under the GS system. As you were in a NSPS pay band which encompassed more than one GS grade, 14 and 15, the government would have compared your adjusted salary to the Step 4 rate of the highest applicable GS grade encompassed within the band. Because your adjusted GS-14, Step 10 equivalent salary was lower than the GS-15, Step 4 rate, you were assigned a GS-14 virtual grade and consequently placed into a GS-14, Step 10 position.

Had you converted from Acquisition Demo, which also uses pay bands, to the one-grade-at-a-time GS pay system, the result would have been the same. Government regulations do not require employees be placed into GS positions with the same promotion potential they had within the pay band system from which they converted.

In its only two precedential opinions involving the NSPS to GS conversion, the MSPB found federal employees were demoted with insufficient due process when their positions were converted from NSPS to GS at lower grades than when they entered NSPS. In Arrington v. Dep’t of the Navy, 117 M.S.P.R. 301 (2012), the MSPB found that despite his increase in actual pay, the employee suffered a reduction in grade without sufficient due process when the employee’s GS-14 position, at the time of conversion to NSPS, was converted to GS-13, Step 10 following the NSPS repeal. The MSPB found similarly in Miller v. Dep’t of the Navy, 117 M.S.P.R. 393 (2012), where an employee’s GS-12 position was converted back from NSPS as a GS-11. These cases are distinguishable from yours, however, because they dealt with actual reductions in grade, whereas yours is the loss of promotion potential within your position.

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 – Resume Rated Ineligible

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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 application for federal employment was rated ineligible because my resume did not state hours worked per week at each job. I had the title, location and the month and year I started and the month and year I left the position. Can they rate me ineligible because I did NOT state hours worked per week in each position on my resume?

A:

What is unclear is whether the job announcement required you to state number of hours worked each week. If it did, then yes, you can be rated ineligible.

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 – Workmen’s Compensation

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

In 2011, I requested accommodation of an electric stapler due to carpal tunnel syndrome and also started occupation therapy. It took five months for the agency to agree to the request and then the therapy failed since I was doing the same repetitive tasks. I now have to take off work for surgery. My question is whether I could be paid for my time off work under workmen’s compensation.

A:

You should ask your HR office for the forms to file a workmen’s compensation claim. These claims are adjudicated by the Department of Labor and they will determine the merit of your claim.

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.

Improving whistle-blower protection

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For years, advocates have argued that federal-sector whistle-blowers lack meaningful protection. This is primarily because of decisions from the U.S. Court of Appeals for the Federal Circuit — the court that reviews Merit Systems Protection Board decisions — limiting the definition of what it means to be a whistle-blower.

For example, under current law, you are not a whistle-blower if you merely point out wrongdoing to your misbehaving supervisor. Also, if your job requires you to report wrongdoing and you just do your job, you are not a whistle-blower. Thus, in both of these examples, an employee who reports wrongdoing and then is subjected to retaliation because of that disclosure is not covered by whistle-blower protection laws.

Another key court decision is a holding that if a manager is prosecuted for whistle-blower reprisal by the Office of Special Counsel — the office whose job it is to protect whistle-blowers — and OSC loses the prosecution, OSC is liable for the manager’s attorneys’ fees. Since OSC is a small office, a large award of attorneys’ fees can significantly affect its budget. This seems to have driven many OSC cases to corrective action rather than prosecution.

In recent years, MSPB has shown a greater likelihood of ruling for a whistle-blower in a reprisal case and has found ways to distinguish some of the Federal Circuit precedent. One celebrated case is the firing of Park Police Chief Teresa Chambers after she spoke publicly about underfunding at the agency. Chambers fought her case and was reinstated based primarily on adjustments to the interpretation of the law on whether she was a whistle-blower.

The basic rules on being a whistle-blower and receiving protection from reprisal are that the whistle-blower must disclose a violation of law, rule or regulation, gross mismanagement, gross financial irregularity, abuse of authority or a specific threat to health or safety. If the whistle-blower makes a disclosure and a negative action occurs shortly thereafter, whistle-blower reprisal is presumed and the whistle-blower will be protected unless the agency can prove by clear and convincing evidence that the negative action would have occurred despite the protected whistle-blower activity.

Determining whether someone is a protected whistle-blower is always fact-specific, with the agency usually claiming that the whistle-blower is a problem employee and the whistle-blower saying he or she was perceived as a problem only after the disclosure.

Whistle-blower litigation at MSPB can be complicated, and OSC investigations often are time-consuming. A recent OSC success story is the Dover Air Force Base, Del., case where whistle-blowers who reported the improper handling of human remains had been disciplined. OSC obtained corrective action, and the Air Force agreed to discipline those responsible.

While the recent trend seems to favor more whistle-blower actions and protections, Congress has just acted to make a real difference. The House on Sept. 28 passed an amended version of S 743, the 2012 Whistleblower Enhancement Act. This bill, which most observers believe will pass the Senate, makes important changes to whistle-blower law. First, any disclosure among the types discussed above is protected regardless of whether it is made to a wrongdoing supervisor, whether it was disclosed as a part of your job or whether it was a disclosure of already-disclosed wrongdoing or of old information. This is an important change because most whistle-blowers over the past decade or so have been denied protection on these technicalities.

If it becomes law, the bill would also change the rules on attorney fee reimbursement for managers who successfully defend an OSC retaliation prosecution. The fees under the new law will be paid by the employing agency, not OSC. This will undoubtedly increase the number of prosecutions against supervisors suspected of retaliating against whistle-blowers.

There are other important provisions in the bill. Those discussed above are the key provisions in the evolving landscape from little to no whistle-blower protection to one where meaningful protections may become a reality.