Ask The Lawyer

By Debra Roth

Q & A Session – EEO Counselors

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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 filed an EEO complaint on my supervisor on the basis of age discrimination and harassment. It has now gone to the formal complaint process – I am currently waiting to be assigned an EEO counselor. 

Last week, I filed an EEO retaliation complaint with my agency but have continued to experience harassment and a hostile work environment. I am being told by the agency EEO counselor that this is not reprisal and that it is continued harassment and should be handled as an amendment to the original EEO complaint. She said that it is quicker to do it this way and saves everyone’s time.

Is the agency EEO counselor giving me the run around to save time and money on behalf of the agency or is this the way I should pursue the case? I feel that their actions were intentional and demeaning.

A:

EEO counselors are not supposed to give substantive advice on the use of the EEO process or the claims made. You should not be dissuaded from pursuing the claims you believe should be made.

 

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 – AWOL for Arriving Late to Work

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

Q:

I have been employed with the federal government for over 30 years. I was informed upon entry that whenever I intended to either be late for work or not come into work due to illness, I was to notify my supervisor of such as early as possible, but that I would be designated absent without leave if the notification was not within two hours of my established reporting time. Does this direction come from an actual regulation and, if so, where is it located in the CFR? My daughter is also a civilian employee and her agency has charged her AWOL whenever she is late despite the fact that she calls in.

A:

Agencies have broad discretion in setting leave policies. If a union represents employees in a bargaining unit, leave policies are usually subject to collective bargaining. Both examples you use are within an agency’s discretion.

 

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 – Mandatory Teleworking

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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:

Does a federal agency have the legal right to order an employee to telework without it being part of the official job description?

A:

Yes. An agency can determine where work is to be performed. Most federal employees prefer telework, but, admittedly, it is not the best option for everyone.

 

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.

How to deal with contractor misconduct

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The federal workforce is often called the blended workforce. It consists of federal and contractor employees working together, often performing the same duties.

So who’s in charge? Only federal employees can perform essentially governmental functions, and someone should be watching to make sure federal and contractor employees stick to their respective proper roles.

A process managed by the acquisition community has been created to help. The contracting officer writes a statement of work and publicizes the availability of work to be done under a government contract. After what is usually a competitive process, the contractor company is selected and provides the manpower to accomplish the statement of work. The contracting officer signs off on the contract and everyone gets busy getting the work done. The federal contracting officer assures compliance with federal acquisition rules, and the federal program manager directs the work, which is often done by both federal and contractor employees. Assisting in the process is the contracting officer’s representative (COR), who is the day-to-day interface with the contractor and, to a certain extent, the contractor workforce.

Once the company is hired, the interactions should be between the company’s authorized representative, usually a program or project manager; and the authorized federal employee official, usually the COR.

All supervision of contractor employees should come through the contractor company chain of command, not directly from federal employees. Some day-to-day direction will occur from federal employees to contract employees — such as “put these files over here” or “pick up the documents we’re waiting for at 2 p.m.” But supervision of contract employees is up to the contractor. This includes hiring, setting salaries, providing guidance on the nature of the job, discipline and firing.

It should seem obvious that contractor misconduct is dealt with through the hierarchy of the contracting company. The federal manager faced with contractor employee misconduct must be familiar with how to register a complaint with the contractor company. This information is obtained either through the COR or the contracting officer.

Mistakes that are sometimes made are directions from a federal manager to a contractor program manager to fire a particular contract employee. This type of direct intervention in the employee-employer relationship between the contractor employee and the contractor company is improper and could be viewed as intimidating. It could also lead to legal liabilities. But it is proper for a manager to work through the contracting office to insist that an employee be removed from a project. The contracting office would have to agree with the manager, but the company would be free to use the employee on other projects if it so desired.

The reality, in most blended workforces, is that feds and contractors work side by side with little thought given about who is supervising whom. There are probably examples where federal employees have been directed by contractors, which is not allowed

The difficulty for an agency that does not respect a contractor not being a federal employee is that under principles of employment law, the contractor employee might be considered a federal employee for some purposes, particularly when it comes to filing an equal employment opportunity complaint.

The more interaction between a federal supervisor and a contractor employee in a work environment that ignores the hierarchy in the contractor company, the more likely the Equal Employment Opportunity Commission will conclude that the contractor employee is  a federal employee for purposes of using the federal EEO system.

This is important because the contractor employee’s complaint is against the federal manager’s agency, not the contractor company.

The more the line of authority is respected and contractor employees are treated as employees of the company with the contract, the less likely there will be exposure to an EEO complaint against the federal agency where the contractor employee works.

But even in those few agencies that are permitted to enter personal service contracts, the same principles apply. Those on a personal services contract who engage in misconduct are handled by actions of the contracting officer.

Q & A Session – Erroneous Step Level

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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 hired under the VRA act as a GS-7, step 5. After I began working in this position, I was told there was an error and I was only supposed to be offered a GS-7, step 1. They have continued to give me erroneous paperwork and are trying to reduce my step level. Can they do this?

A:

I am assuming that your agency correctly determined that your step 5 was erroneous. If so, your agency can correct the error.

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 – Difference Between RIF and Reorganization

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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 you please explain the difference between a Reduction-in-Force (RIF) and a reorganization?

A:

A reorganization can be a reason to do a RIF. But, if a reorganization can be done without a reduction-in-force, everyone gets to keep working. If not, RIF rules apply.

 

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 – Appealing Retirement Decisions

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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 retired in 2010. My agency provided me a correct annuity amount, but OPM provided a different amount. The agency and OPM each say they are correct. I have asked my Senator to submit a Congressional inquiry. Can any type of suit be brought against either agency?

A:

You may appeal retirement questions to the Merit Systems Protection Board (MSPB). But, OPM is right, it must rely on what the agency says. If IRS;s records cannot be read, IRS should tell OPM about this. The issue you describe is one that is currently being addressed by increased communications and better record keeping from agencies to OPM. According to OPM, this is resulting in faster, more accurate processing of retirements. Maybe your claim will be affected positively by this new environment.

 

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 – Telework as a Reasonable Accommodation

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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 a disability from a back injury sustained while serving in Iraq. I have been working at an agency for 9 months with a long commute. Due to increased pain, my doctor raised the level of pain medication and I can no longer make the drive to work. I applied for reasonable accommodation to telework, but my request was denied. I am filing an appeal. What are my options and could they fire me?

A:

Telework can be denied if it is essential to your job that you be in the office. Commuting and your residence location are personal options that are unrelated to your work. While your agency does not have an obligation to accommodate your disabilities by granting you full-time telecommuting, if you must be in the office, perhaps a compromise of telecommuting two to three days a week could be sufficient to let you get into the office and alleviate your back pain.

  

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 – Downgrade After 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:

If a full time federal employee undergoes a desk audit and the position is downgraded, what would happen to their pay?


A:

A demotion resulting from a desk audit or a reclassification decision is subject to two years of saved grade with saved pay thereafter indefinitely.

  

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 – Damages for Stress Affecting Health

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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 about to enter into negotiations for settlement with a federal agency over unfair evaluations, failure to award compensatory time for hours worked, disparate treatment in the awarding of compensatory time, and retaliation and harassment. What are reasonable damages when one can show the stress affected one’s health and you are a disabled employee?

 

A:

“Ask the Lawyer” cannot give advice on specific cases. Stress affecting health can be a basis for damages. The amount varies from case to case depending on circumstances.

 

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.