Ask The Lawyer

By Debra Roth

Q & A Session – Former Employer Gives Negative and False Reference

Bookmark and Share

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

Q:

A former employer of mine gave a false and negative employment reference on me. I was able to obtain the job, but I still feel scared. What can I do about this? Can I file an EEO complaint?

A:

An EEO complaint is probably not effective, especially if your former employer was not the U.S. government. If you landed the job despite the negative reference, it is probably best not to draw attention to the reference and concentrate on doing your best work with your new opportunity.

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 – Union Settles Grievance without Grievant

Bookmark and Share

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 a grievance with my agency. My union invoked arbitration in June 2010. After 18 months of waiting for a hearing, the agency supposedly canceled the hearing three days before the hearing date. They attempted to settle, but what was offered was an insult to my intelligence. I have not communicated with my union in any way since November 2011. I was recently emailed a settlement agreement my union president signed settling my grievance without my knowledge or consent. I do not agree with the settlement at all. Can my union settle a grievance without consulting me?

A:

Yes. The union is the exclusive representative. It does have a duty to represent you fairly, but it can make decisions in your arbitration (including the decision to invoke arbitration) even though you disagree with the union’s decision.

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 – Is it Legal to Hire a Military Officer Before he is Retired?

Bookmark and Share

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 department has an active duty military employee occupying a position. He is about to retire from the military, but we are interested in retaining his service as a GS-11. Is it legal for us to “hire” the current military employee for the GS-11 position before he retires?

A:

While you do not denote your department, it seems highly likely that you work within the Department of Defense. Thus, I would like for you to note that the Department of Defense has agency-specific policies which govern the conversion of a position from a military billet to a civilian billet. Those regulations vary considerably based on the type of position at issue. Please review those policies first to determine whether a civilian may even encumber the position.

If the billet can be converted, please know that the situation you describe sounds as though it might be a pre-selection held without allowing competition for the position. Such a move would likely be unlawful for a position within the competitive service.

I believe you must allow an open competition for the new position. However, it seems plausible that if this position were subject to open competition, the individual who currently occupies the position would stand a good chance of being selected lawfully; his experience will obviously be well-suited to the position for which he is applying, and he may be eligible for veteran’s preference.

I believe you should hold an open competition for the position and hire the best applicant, who may very well be the individual who currently encumbers the position. I am unsure whether the position you are discussing can be occupied by a civilian, and am doubtful that you can avoid the competitive process.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Eligibility for Compensatory Time Off for Travel when Using Annual Leave on TDY

Bookmark and Share

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 an employee entitled to compensatory time off for travel when she uses annual leave on TDY? Some employees in my office are traveling for business, and then, after completing their business, using several days of annual leave before returning to their duty stations. Are they entitled to compensatory time off for travel during their travel home?

A:

I believe your employees are entitled to compensatory time off. I am aware of no provision which precludes them from earning compensatory time off for travel simply because they used annual leave while away, when they would otherwise have been able to earn compensatory time off for the return travel. See 5 C.F.R. § 550, subpart N. However, “[i]n the case of an employee who is offered one mode of transportation and who is permitted to use an alternative mode of transportation, or who travels at a time or by a route other than that selected by the agency, the agency must determine the estimated amount of time in a travel status the employee would have had if the employee had used the mode of transportation offered by the agency or traveled at the time or by the route selected by the agency. In determining time in a travel status under this subpart, the agency must credit the employee with the lesser of the estimated time in a travel status or the actual time in a travel status” See 5 C.F.R. § 550.1404(c)(2). Thus, you should credit the employee with either the amount of compensatory time off he or she would have received had they utilized the agency’s travel plans, or the compensatory time off they would have received under the travel route plan they actually used – whichever is less.

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.

’Tis the season to know rules on gifts

Bookmark and Share

Most employees know there are significant restrictions on giving and receiving gifts related to their jobs, whether from co-workers, to and from subordinates or from customers or the public. The rules are complicated — understood, if by anyone, by those who toil in the intricacies of government ethics.

Given the holiday season and the spirit of gift-giving, it is helpful to review a few of the rules so you can avoid the common pitfalls and, more important, receive those gifts that are allowed.

For example, it used to be customary to tip your letter carrier. This is no longer allowed, and a letter carrier or any federal employee cannot receive a gift of monetary value given to him because of his position. The employee must refuse the gift. Acceptance of such a gift might be considered a violation of ethics rules and justification for disciplinary action.

Also, federal employees are not allowed to accept gifts from entities seeking or doing business with their agency or that might be influenced by their agency. They may never solicit or coerce a gift, accept a gift in return for the performance of an official act or accept a gift so frequently that a reasonable person would be led to believe the employee is using his public office for private gain.

The most widely known exception to the ban on accepting gifts is the $20 lunch with an annual cap of $50. (The $20 amount may also apply to gifts other than lunch.) The amounts were set in 1992, and lunches have gotten much more expensive in the intervening years. So be careful with the lunch exception because it may be difficult to go to a nice place and get a lunch or a dinner for only $20. If you pay cash for your portion of a lunch with a contractor doing business in your agency, make sure that the contractor writes this down on the documentation or you may be falsely accused of accepting a gift and you may lack documentation to show your contribution. It may be better for you to use a credit card to pay for your lunch.

Another exception allows attendance at widely attended gatherings. If a gathering is open to government and nongovernment employees alike, a federal employee may attend if it is determined to be in the agency’s interest and of general interest to a number of parties to the sponsor of the event.

Of course, you may also accept a gift if the reason for the gift has nothing to do with your federal employment. For example, if your sister-in-law and you have always exchanged holiday presents and she now works for a company doing business at your agency and thus a prohibited source, you may continue to accept gifts from your sister-in-law, even if the gift is worth more than $20. The same is true for gifts between longtime friends and gifts exchanged because of affiliations with organizations outside the workplace.

Federal employees are also allowed to accept gifts of nominal value such as food and drink that are not a part of a meal; certificates, plaques and trophies; and prizes from drawings or raffles open to the public.

Supervisors are not supposed to accept gifts from subordinates. There are exceptions for events like retirement parties. But, don’t give your boss a holiday present. It could present you and your boss with an ethics problem, and it sends the wrong message to other employees. Also, the ethics rules prohibit a higher-paid employee from accepting a gift from a lower-paid employee unless the employees are not in a supervisor-subordinate relationship and the personal relationship of the two employees would justify the gift.

Any questions or areas of doubt should be referred to the agency ethics official, who will tell you if you are allowed to accept a gift or whether something is even considered a gift. Have a great holiday season!

Q & A Session – Restraining Order

Bookmark and Share

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:

As department supervisor, I have a staff member who recently was given a restraining order. How does this affect his career? He is a law enforcement officer.

A:

It depends on why the restraining order was issued. Did the law enforcement officer engage in misconduct or is this just a domestic dispute? You need more information before you decide 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.

Q & A Session – Forced Leave

Bookmark and Share

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:

Recently, tenant organizations on my base have been shutting down and requiring workers to take annual leave. They shut all the buildings down and if you wanted to work you needed to justify why you should be allowed to work. They also did not allow contractors to work during this time. You are forced to either use your annual leave or go LWOP. Is this legal?

A:

It sounds like you are describing a furlough situation that has not used the furlough process. Normally, you cannot be forced to use annual leave. But you can be furloughed with the loss of 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 – Will I Lose my CSRS?

Bookmark and Share

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 convicted of bribing a public official in Texas. I resigned after 25 years in CSRS. Will I lose it?

A:

No. But you might have to wait until you are 62 to receive a deferred annuity if you are not now over the age of 60 and eligible for an immediate annuity. If you wait for a deferred annuity, you are ineligible to take your health insurance into retirement.

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 – Pay Retention and Disability

Bookmark and Share

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 for a federal agency for about 14 years and am currently a GS-7. My performance has declined due to medical issues. I was just diagnosed with a disability which has become worse due to physical and emotional stressors.

Management wants me to sign a form saying that I request a move for personal reasons to the mail room at a GS-4-10. If I don’t sign it, they will place me at a GS-4-1, which is about half my current pay.

Can they move me to a lower pay since I now have a disability? If they did, could I retain pay? Would this mean I would be eligible to apply for early disability retirement since I was not placed at the same rate and pay?

A:

If you are demoted, you can apply for disability retirement. You may also be entitled to a reasonable accommodation because of your disability. You should use your agency’s reasonable accommodation process. If the accommodation is denied, you can pursue an EEO complaint.

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 – Options to Get Job Back after Request for Union Steward Denied by IG

Bookmark and Share

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 approached by an OIG after I requested union representation. I was taken in for an interview and I requested a steward again, but none was provided.

What chance do I have getting my job back after the OIG stated he caught me taking items from the damage mail? What are my options?

A:

The IG is not part of the agency and is not required to honor your request for union representation. If the evidence shows you taking items from damaged mail, I think your chances of getting your job back are small, but you should check with your union for help in appealing or grieving your situation.

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.