Ask The Lawyer

By Debra Roth

Q & A Session – Denial of Security Clearance

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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 by a federal agency last November, received my first letter of clearance denial in March 2012, and lost my final appeal in August 2012. Should the agency have asked me to sell my house and move to a different state and quit my other federal job and move here without finishing my security clearance first? I’ve lost everything as a result of one stupid thing I did ten years ago.

This leads me to my second question. I would have thought the “whole person” concept used to determine security clearances would have mitigated an incident that landed me two months in jail ten years ago.

A:

Many job offers are subject to a security clearance. Many do not allow employees to start working until the clearance is granted. Others will allow work with an interim clearance or the performance of non-sensitive duties pending approval of the clearance. Any of these are legal and proper, and, of course, if you move and are denied a clearance, you are subject to the loss of a clearance. The denial of your clearance for something ten years old can be appropriate. Security clearances are adjudicated based on uniform guidelines that allow for some flexibility, but some offenses are regarded as too serious to justify a clearance.


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.

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Q & A Session – Reduction in Salary

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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:

As an employee with the judiciary, my position was eliminated and I accepted a position under saved grade, saved pay. The position that I accepted was downgraded from a GS-11 to a GS-9 when it was offered to me. Now, the Judicial Conference has voted to eliminate saved grade, saved pay and I face a $15,000 annual pay-cut. What, if any, remedies are left for me other than to find a new job?

A:

The judiciary has independent personnel rules and the authority to change them. You can file a grievance, but if this action is pursuant to a new policy and the policy is applied fairly to you, I doubt the grievance would be successful.


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.

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Q & A Session – Detail and Temporary Assignment 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:

During recent CBA negotiations and while negotiating the Promotions and Details Article, it was stated that there is no federal law that would prohibit Temporary Assignment pay by the hour. The union had proposed that all Bargaining Unit Employees receive pay to the higher position when assigned by management. This currently is a personnel action that requires an SF-50 to be issued, should the temporary promotion be for more than two pay periods. Currently, any assignment under 30 days is considered a “detail” which requires no additional pay. We have encountered a recent arbitration in which the employer has tried to state that an employee (who was acting in the higher grade for the day) is held to the standard of that position despite receiving no financial compensation. Having read several FLRA decisions, I was surprised to find that the FLRA believes in the theory of equal pay for equal work and that they also believe this is a negotiable item. Why hasn’t anyone challenged this? Can an employee be paid at the higher grade, for the day, if he/she performs the work?

A:

It sounds like the issue is being arbitrated and he or she would answer your question. The answer depends on the wording of the contract as it relates to federal regulations.

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.

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Q & A Session – Age Discrimination in Law Enforcement

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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:

A recent MSPB ruling, Isabella, cited that the government could not discriminate on the entry age for federal law enforcement jobs. My agency is hiring persons into law enforcement positions past the age of 37 with no mandatory retirement age. However, I turn 57 next year and am being forced to retire. An employee who I supervise was recently selected to transition into a law enforcement position and is currently attending law enforcement school. He is currently 58 years old and, as such, will be past the age of when I must retire when he is just starting his law enforcement career; theoretically, able to go to the age of 78 before retiring with 20 years of law enforcement service.

Isn’t this age discrimination? How can MSPB and Congress allow age discrimination on one end and not on the other?

A:

Both the mandatory law enforcement retirement provision and the age discrimination in employment are federal statutes. The mandatory law enforcement retirement age is read as an exception to the ADEA.

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.

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Q & A Session – On-Call Status

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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 an 1811 criminal investigator who also receives LEAP. I was recently informed that I will be on call approximately once every three weeks. As a drilling reservist, I also drill one weekend a month, which means that every other month, I will actually only have one weekend completely free.

Is this an overly restrictive interpretation of LEAP? And should my agency be required to accommodate my drill schedule so as not to limit me to one free weekend a month?

A:

LEAP is a fairly generous benefit for which you are expected to be available for law enforcement duties. From your description, it sounds like our agency is accommodating your reserve duty.

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.

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Q & A Session – Accurate Position Description

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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 position description was written back in 1999 and has never been updated, even though I have been given many more additional duties. I have addressed this to my various supervisors over the past 12 years but have always been told they would either look into it or ask me to write something up. I am not rated on my performance appraisal on the additional duties I have been given. Do I have any recourse? Internal complaints are ignored.

A:

You can ask for a desk audit. Be careful though. Sometimes a desk audit results in a reduction of grade level.

 

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.

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Q & A Session – Rights in a 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:

I work as a GS-12 for a federal department. If my immediate boss finds it necessary to demote me, even though I’m getting excellent performance ratings and through no fault of my own, what are my rights?

Would I be entitled to retain my grade for two years and my pay level indefinitely? What does it mean to retain one’s pay level?

A:

Civil Service employees who are beyond a probationary or trial period have Merit Systems Protection Board rights if they are demoted. Your second question about saved pay does mean that you cannot earn less than your pay when demoted and are entitled to only 50 percent of annual comparability increases, if they ever occur again.

 

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.

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Q & A Session – Revoked Clearance

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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 Former U.S. Navy Petty Officer Third Class. I applied and got accepted to Navy EOD School. During my Single Scope Background Investigation, I disclosed that I experimentally tried hallucinogenic mushrooms during my divorce. Divorce and drug use happened in 2008, well before EOD SSBI. I never failed a random urine analysis, nor continued use of the substance. No one knew about it until I revealed it to the investigator. Ultimately, the clearance I did have was revoked and I was denied a Top Secret Clearance. Since I couldn’t continue in training, and my enlistment was ending, I simply got out then. Honorable discharge, best re-enlistment code and no negative evaluation or marks

Can I apply for other federal positions, say Marshals or TSA? How can I find out if I will ever be able to obtain a clearance again? What can I do to be able to obtain a clearance again?

A:

You are certainly free to apply. Your prior drug history will be weighed against your other life accomplishments to decide whether to hire you and/or grant a clearance. There is no clear cut answer to your question without applying for a job, being tentatively selected and then going through the security clearance adjudication 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.

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Q & A Session – Earning Annual 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 have a serious medical condition, and, because of this, I have had to use all available sick leave, advanced sick leave (currently being paid back each pay period), and my annual leave as I earn it. During the last pay period, I took 8 hours annual along with FMLA leave as I have been doing for several months; however, I received notice that I did not have annual leave to cover the 8 hours and it was converted to leave without pay. Can they do that if I earn 8 hours per pay period?

A:

If you did not have annual leave, your agency has the discretion to advance it but it does not have to. If you receive 8 hours of annual leave per pay period, you will have leave accrued for future medical absences.

 

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.

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