Ask The Lawyer

By Debra Roth

Q & A Session – TS Security Clearance Question

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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 senior in college and I have lined up a job as a consultant for a firm working with government agencies. They want me to fill out a SF-86 for TS/SSBI. I have used marijuana a total of five times, the last time occurring two years ago. Two years ago, I also tried mushrooms once. Lastly, I have two underage drinking tickets from 2011. I haven’t used anything like that since the later part of 2011 as I decided that was not the lifestyle I wanted to live. I have also cut ties with everyone except in social situations.

I am excellent student and very active in the local community and on campus organizations.

Will I run into problems getting approved for my clearance? I will of course disclose all of this on my SF-86 and I have disclosed these incidents to my future employer.

A:

Your past raises questions that will be examined. You say all the right things, but your last usage may be too recent. An adjudication will make the final decision and it could go either way. 

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 – GS-5 Doing GS-9 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:

 Is it legal to have a GS-5 do the work that a GS-9 is supposed to do? The GS-5 is not being compensated for doing the duties that the G-9 is supposed to do.

A:

Yes. It is not a good practice, but it is not illegal. 

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 – Written Warning without Explanation

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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 written up by my supervisor and not given much information about it. She stated she received complaints from other employees that I do not treat all employees the same, and that another employee reported an incident. When I asked for more detailed information, she refused to provide it.

A:

Since a written warning is not a formal disciplinary action, your supervisor is not required by law to provide you great detail on the nature of the complaint. Sometimes when accusations lack factual support, managers will issue warnings to caution the employee that if the unverified information was true, it could amount to misconduct. You have not provided any information in your letter as to why you believe you were subject to discrimination or retaliation. As such, I do not know if an EEO complaint would be appropriate. 

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 – FMLA in Regards to Childbirth

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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 will be having my first child and becoming a father soon. Can I use FMLA intermittently? It looks like from the Department of Labor information I found, you may but it is subject to the employer’s approval.

I requested to use one week of leave when the baby is born and eight additional weeks a couple of months later. I also requested an additional week months following that for my child’s first birthday. I was told they may not allow it because I must use all of the leave at once unless I have doctor appointments or a medical condition. Is this true?

A:

Under 29 CFR § 825.202 ©, FMLA does not generally require an employer to authorize intermittent leave in relation to child birth. However, an employer may agree to do so voluntarily.

Also, if your child has a medical condition which requires additional care, you may be able to use leave in relation to that condition. Events like a first birthday are not covered under FMLA, but you could take annual leave for that event. 

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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Your rights when you are geographically reassigned

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In some parts of the federal government, geographic reassignments are a rare occurrence, even for the supposedly mobile Senior Executive Service corps. In other agencies, especially law enforcement agencies, geographic reassignments are to be expected at all grade levels and are good for career advancement. Most federal employees work in agencies where geographic reassignments do occur, but occur with varied frequency and sometimes varied motives.

The varied motives that accompany some geographic reassignments include using the reassignment only to force the resignation or retirement of the employee and for no legitimate business purpose.

When this happens, or when an employee thinks it is happening, it is important to be aware of your rights. These rights vary for those in the Senior Executive Service versus those in the General Schedule or in other pay systems.

SES rights include a 60-day notice before the geographic assignment occurs, and the agency is obliged to consult with the senior executive before the notice is issued. Unfortunately, senior executives have almost no other rights when it comes to refusing the geographic reassignment. The SES adverse action statute states that a senior executive can be removed from federal service for failure to accept a geographic reassignment.

The Merit System Protections Board’s (MSPB) interpretation of the statute leaves a senior executive who is fired for refusing a geographic reassignment almost no ability to argue. Senior Executives who are geographically reassigned and who are within five years of retirement eligibility are entitled to movement of their household goods at government expense when they do retire.

Those who are not in the SES have a bit more protection. These employees may challenge the legitimacy of a geographic reassignment in two ways. First, in a decision just issued a few months ago, Miller v. Interior, the MSPB held that an employee who is geographically reassigned may argue the move does not promote the efficiency of the service. The second method is to specifically attack the bona fides of a reassignment order.

In Miller, the employee was reassigned to a newly created job in a distant part of Alaska from her old job, also in Alaska. The employee refused the reassignment and was fired, creating two vacancies to be filled. The board’s opinion was that this did not promote the efficiency of the service and was an invalid reassignment. The employee got her job back.

The Miller decision significantly broadens an employee’s ability to challenge an unwanted directed reassignment. It will certainly cause agencies to carefully consider using such reassignments to deal with perceived personnel problems.

There are various ways to challenge the bona fides of a directed reassignment. For example, the employee may show that he or she is unqualified for the new job or so overqualified that the move does not serve a legitimate business reason. Or, the employee may show the position remained vacant for years and there had been no plans to do the work of the position in the new location.

Essentially, anything that causes the reassignment to look “fishy” can be an argument that the geographic reassignment is designed for an improper purpose.

An employee who accepts a directed reassignment is entitled to reimbursement of expenses. Some of these expenses, such as payment for household goods shipment, are required. Other programs are more generous and include assisting the employee with selling the old house. If you are reassigned, check with the office at your agency that handles relocations and determine in advance your entitlements.

Q & A Session – FMLA Violation?

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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 current federal employee. I have allergic asthma and was granted FMLA three weeks ago. I became ill recently and needed outpatient hospital treatment. I was scheduled for vacation the following week. Due to the severity of my asthma, my pulmonologist wrote me off work for two weeks. During these two weeks, my supervisor called to check on me and asked if I was at home. I feel like my supervisor wanted me to disclose whether or not I was on vacation. Is this not a violation of FMLA? All medical documentation was received as well as the documentation from the doctor stating I was not to return to work for two weeks.

A:

It is not a violation of FMLA for your supervisor to call you once to check on you, even if you suspect it was in reality to verify that you were not using FMLA as vacation time.

 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 – Disobeying Furlough

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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:

What happens when a person breaks furlough and comes into the office to use the computer for personal reasons and chat? It was stressed to all employees that they should not come into the office on their furlough days.

A:

If an employee was specifically directed not to come into the office during furlough, but then disobeyed that instruction, he/she may be disciplined for failure to follow that instruction. 

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 – Obamacare

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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 government employees/retirees be forced into “Obamacare”?

A:

Not unless Congress acts to do so. There are legislative proposals to move current federal employees onto the exchanges, but they have not moved forward. At this point in time FEHB remains intact for federal employees. 

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 – Losing Retirement

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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 family member who retired from a federal prison several years ago. After they retired, they were convicted of a felony, and they are currently serving time in a state prison. What is the list of charges in which a federal employee loses their retirement?

A:

Federal retirees can lose their retirement when convicted of treason, espionage, sabotage and other related offenses. 

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 – Inadequate Documentation of Personnel Actions

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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 detailed from my current position for over 6 months without any explanation as to why. I am now in the process of returning to my position. No explanation as to this change was provided either. As a federal employee, do my supervisors have an obligation to inform me about my being detailed?

A:

In theory, yes. What happened to you happens frequently and there is little recourse to remedy the poor practice of inadequate documentation of personnel actions. 

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.