Ask The Lawyer

By Debra Roth

Q & A Session – Disciplinary Action

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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 stopped for a speeding violation and then arrested for a DUI. I called my supervisor 9.5 hours prior to my scheduled tour the next morning. I received an admonishment before I went to court. I subsequently had the charges dismissed. If I take the admonishment to arbitration under a collective bargaining agreement with my union, will I have any chance of having the admonishment removed? I have no other disciplinary actions on my record and a good 10-year record of fully satisfactory evaluations.

A:

First, you have to ask your union whether you have a realistic chance of it invoking arbitration for an admonishment. Arbitration is expensive and your union has discretion whether to invoke arbitration. You do, of course, have a grievance procedure where your issue can be raised. I cannot comment on your chances since I don’t know all the facts.

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 – Award Money

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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:

Our agency has not given out our award money since October 2011, which is a clear violation of our contract which states that the award money should be paid expeditiously. The union alleges that the money has been allocated but not dispersed to the employees. Where can I file my complaint on this clear violation of our contract?

A:

Your union files the complaint. If they think the collective bargaining agreement has been violated, it can file a grievance. However, these are tough times for federal employees and agencies and there may just be no award money.

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 – Requesting Advance Sick Leave

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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 recently put in a request for advance sick leave in an attempt to cover myself for 96 hours of leave without pay. I had returned to duty and requested the advance sick leave before the end of the current pay period that I was requesting it in via email. The problem I am facing is that they are trying to figure out if the request for the sick leave can be used retroactively, even though it was in the same pay period of me requesting it. I did a little research and I saw something saying you have up to 48 hours after returning to work to request it.

Can advance sick leave be requested and used retroactively to cover a LWOP status? And do you have a grace period to request it after returning to duty?

A:

The 48-hour rule you refer to is to receive leave without pay under the Family Medical Leave Act. And the rule of making the request within 48-hours from returning to work is only applicable if it is impractical to make the FMLA request in advance. The advance sick leave is different and is subject to agency discretion, practices and procedures.

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 – Possible EEOC Issue after Department Withheld Travel Reimbursement

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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 currently in a situation where a travel reimbursement is being held due to irregular paperwork. I was in a carpool that gets a travel reimbursement if it has seven or more persons. For six months, we all submitted the same paperwork and all got reimbursements. At month 7, I received a letter stating that my reimbursement paperwork was irregular and, due to department procedures, need to submit additional paperwork. The other six passengers submitted the same exact paperwork for reimbursement but none of them got the same scrutiny. Month 8 we all submitted reimbursement documents again. Again, all six other passengers received the reimbursement and mine is being withheld for more documentation. I am the only African American in the carpool. The department doing the paperwork should not have any basis for discrimination, however, as the only individual not receiving any reimbursement. I am having a hard time feeling there is no discrimination taking place. Am I justified?

A:

Based on what you have said, I think you would have a hard time proving discrimination. This is especially true considering how common it is for employees who are similarly situated to be treated differently. You need to persist to have it corrected.

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 – Prohibited Personnel Practice?

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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 military organization where the leadership routinely allows for and then creates positions for military service members who are already in the organization who are getting ready to separate/retire and then places them into the position after they separate from the military. To me, it’s basically a preselection for the position. Is this legal? Can they create and then fill positions with someone already in mind for the job? If it is not legal, I’d like to blow the whistle. Who could I blow the whistle to?

A:

Pre-selection is not necessarily illegal. It is only a prohibited personnel practice (and therefore illegal) when the pre-selectee is selected without regard to merit and the “competition” is really a sham. In other words, management may think the pre-selected candidate would be good, but if they give full and fair consideration to the others, it may not be illegal. I have heard of numerous cases of employees with a supposed lock on a position who were not, in the end, selected.

You say they go through the process so it may be hard to prove the illegality of the pre-selection. But an unwise email may just provide the evidence to show that other applicants never had a chance.

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 – EEO Investigator

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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 recently received the investigator’s report pertaining to my EEO complaint. One of my co-workers was interviewed. In the report is a statement from my co-worker that reads “I did not know she had ___ mental illness.” The specific mental illness was disclosed.

Was it a violation of the Privacy Act when the investigator disclosed my medical condition? Or did I waive my rights in the EEO process?

A:

Assuming your illness was an issue in your EEO complaint, it is not a violation of the Privacy Act to tell others about your illness in order to interview witnesses and gather evidence. When you file an EEO complaint, you give up some of your privacy rights so that the agency can investigate your 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 – Oversea Return Rights

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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 promotion to a GS-13 Supervisor when the incumbent was hired overseas approximately four years ago. I was not notified nor asked to sign anything acknowledging that the person had return rights to my position at the time I accepted the promotion.

This person’s overseas position was abolished so they exercised their return rights. Personnel is returning this person to my current position and establishing an overhire/excess position for me with a GS-13 non-supervisory. They have reassured me that I will remain in the overhire/excess position until a suitable position is found for me.

Is what they are doing legal?

A:

You are not being demoted. You are being removed from supervision for a business reason. Management has the right to reassign you to different jobs at your grade level. I see little you can do.

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.

New whistle-blower law helps guard against manager retaliation

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Late in the actions of the 112th Congress, the 2012 Whistleblower Protection Enhancement Act finally passed both houses of Congress and was signed by the president. This is the first meaningful whistle-blower protection reform since 1994. It will now be easier to protect whistle-blowers and take disciplinary action against those who have retaliated against them.

The reality for most managers is that for the past decade or longer, whistle-blower issues have not been a part of their workplace dynamic.

Because of a series of court decisions, mostly in the late 1990s, would-be whistle-blowers found it difficult to get protection, and those that might do the protecting — like the Office of Special Counsel — found it more difficult to apply existing law to obtain a just result.

The main reason for this has been the narrowing of what it means to make a protected disclosure. Usually, a protected disclosure is telling someone about a violation of law, rule or regulation, gross mismanagement, gross financial irregularity, abuse of authority or specific threat to health or safety. But court decisions had said that if such a disclosure was made to a supervisor the whistle-blower was accusing of wrongdoing, then that person was not protected. The theory of the court decisions was that for a whistle-blower to be protected, he needed to report wrongdoing to someone who could fix it.

The second narrowing of the term “disclosure” was to deny protection to someone who disclosed wrongdoing as part of his job. This would mean that if you found something wrong in the course of performing your duties and reported it because your job required you to report it, and then experienced reprisal for not letting well enough alone, you were not protected.

All of this has now changed. The definition of “disclosure” and the circumstances concerning who is protected have been greatly expanded. No longer will someone who has made protected disclosures be denied protection on a technicality.

Also, the new law changes the rules on disciplining retaliating managers to make such disciplinary actions more likely. The Office of Special Counsel has always had the authority to file a case against a manager it believes has retaliated against a whistle-blower. But managers have rights too, and sometimes OSC has been unsuccessful in a prosecution.

When that happens, the question is: Who pays the manager’s attorneys’ fees? As a result of a court decision about 10 years ago, the rather small Office of Special Counsel had to pay fees to a manager who successfully defended a disciplinary charge of whistle-blower reprisal. This had the effect of reducing the threat of disciplinary actions as more meritorious cases focused on corrective action or efforts by OSC to encourage agencies to discipline offending managers. Now the manager’s employing agency pays the attorneys’ fees.

The result of the narrow definition of “disclosure” and the requirement of who pays fees to successful managers has been less whistle-blower protection. That is changing with a reinvigorated Office of Special Counsel, headed by Carolyn Lerner. She has been aggressively pursuing whistle-blower cases, and the new law provides more tools to do this. Managers must respect the right of their employees to disclose wrongdoing and resist the temptation to retaliate.

Often, the issue in a whistle-blower case is whether the manager is retaliating or whether the whistle-blower is a problem employee trying to hide behind whistle-blower laws. The new law recognizes this tension and provides a tool for managers to protect themselves if a would-be whistle-blower is deserving of disciplinary or other administrative action. If the manager can show that the action against an employee would have occurred in the absence of whistle-blowing, the manager can win. Of course, to do this, the manager must have documentation.

The manager who fails to document actions in an appropriate and timely way risks being found guilty of whistle-blower reprisal. Penalties are severe and include removal from service.

Q & A Session – Military Supervisor Disrespectful to Civilian Supervisor

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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:

At a meeting which was set up to allow the various section heads in my command to discuss each section’s top five issues, a supervisor took over the meeting and dismissed my concerns in front of the rest of the personnel in the meeting. I tried to explain my position, but she persisted in dismissing my opinion. After the meeting, I asked to speak with her and tell her that it was not her place to dismiss my concerns. She interrupted me, told me to get out of her office and threatened me with bodily harm.

Although I believe she was disciplined in some way, I was written up for standing my ground and was told my actions were unbecoming of my position and rank. The write up was done after the Major spoke with the woman, but before I had the opportunity to clarify my position.

What is my recourse?

A:

One thing I’ve learned is that there are two sides to every story. It sounds to me like your Major dealt with the matter and it’s time to move on.

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 – Hiring Selection

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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:

Currently, I am on retained pay, GS-13 Step 00. I interviewed for a GS-14 position and was not selected. Informally, two of the three members of the hiring panel said I scored much higher than the person chosen by the Selecting Official. Both members of the hiring panel said they are troubled by what happened. Do I have a right to ask for the panel scores through the Freedom of Information Act or other means?

I believe I was not selected because I am targeted for another position which is a GS-15. Those interviews are complete and we are awaiting selection. If selected, the non-selection of the GS-14 position will cause me to be brought in at a step below what I would have been entitled to. Is there any recourse?

A:

The only recourse is EEO. An EEO complaint must be filed within 45 days of learning of the non-selection. You can ask for the panel scores under FOIA, but you are likely to receive them if you file 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.