Ask The Lawyer

By Debra Roth

Q & A Session: Unjustified Relocation Assignment Complaint

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Q:

I was geographically reassigned in September 2011 from Honolulu to San Francisco.

I was wondering how long do I have to file a complaint for unjustified relocation assignment? I feel I was forced to relocate with the hope that I would resign.

A:

You are describing a management directed reassignment.  There are some specific details which could be very important to determining your rights to challenge a reassignment.  Under law, members of the Senior Executive Service can be reassigned unilaterally and can be removed from their positions from failure to accept such a directed reassignment (5 USC § 3395).  There is very little room for a member of the SES to challenge a directed reassignment.  Also, some federal employees sign mobility agreements, wherein they agree to move wherever the government assigns them.  It may also be difficult for employees with mobility agreements to challenge their reassignment.  Unfortunately, sometimes agencies do use directed reassignments as a means to encourage an employee to quit.

However, in a recent decision from the Merit Systems Protection Board, Miller v. Dep’t of the Interior, an employee was reassigned to a newly created job, refused the reassignment, and was fired.  The agency then created two vacancies to be filled. The MSPB found that the agency’s actions did not promote the efficiency of the service and was an invalid reassignment. The employee was reinstated.  You could also challenge the bona fides of the reassignment – for instance, showing that you were not qualified for the position you were reassigned to, that the position has remained vacant for years, or that you are grossly overqualified for the position.

However, you describe a directed reassignment which occurred in 2011 – even if you had good cause to challenge the validity of the reassignment, the time in which you could challenge that reassignment has almost certainly past.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The 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 The Lawyer’s author is created by the transmission of information to or from this site.

 

Q & A Session: When can I retire?

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Q:

I have been employed with the Postal Service for 16 years.  I am 61 years old. When can I retire without any kind on penalty?

A:

You will be eligible to retire without a reduction after you turn 62 years old, since you have more than five years of service under 5 C.F.R. § 842.204(a).  However, your annuity will likely continue to increase if you continue working after that.

I am answering your question under the assumption that you are in the FERS retirement system and that your sixteen years at the postal service is your only government service.  However, if you have additional federal service (including any military service), you could be eligible to retire now.  Your human resources office should be able to provide you additional information about retirement eligibility and calculating your annuity.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The 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 The Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Minimum Time in Execution of Relocation

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Q:

I’ve been with DOD since 1974 and have been a GS employee since May 2009. A relocation of myself and eight other employees from Norfolk to Omaha is in the works. Once the decision is made to relocate us is there any definition for minimum time involved in execution of movement?

A:

Your permanent change of station orders will include a report date on which you will be expected to begin work in Omaha. You may be able to delay your report date by filing a request for an extension to find appropriate housing or to finish out a school year for your children, though the decision to grant such a request is at the discretion of the agency. If you have a family, you may receive a dependent travel allowance so that your family can be join you at your new duty station. However, such an allowance does have a time limitation, and any dependent travel must occur within a year of your effective date of transfer, and should begin at the earliest practicable time.

This response is written by Conor D. Dirks, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The 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 The Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Divorce Clause to Thrift Savings Plan

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Q:

My wife has a clause in her divorce that says when her ex-husband retires from the government, she gets half of what he had in his Thrift Savings Plan account at the time of their divorce. How long can he go before she can receive that money? He turns 60 in November, and she really needs the money for home repairs and bills.

A:

While some government jobs face mandatory retirement ages, most government employees do not. If the court order will not go into effect until he retires, it is very difficult to predict when that will be. While most government employees do eventually retire, many work long past retirement eligibility.

In order to protect the retirement benefits federal employees are entitled to, federal laws and regulations impose very precise procedures and limits when it comes to state courts taking a benefit away from a federal retiree and awarding it to another person. In the case of a Thrift Savings Plan (“TSP”), you should know that the court order must meet the requirements found in 5 uSC § 8435(c), 5 USC § 8467, and 5 CFR § 1653, subpart A–those requirements are too lengthy to list here, but you should be able to review them on your own or with an attorney.

The Federal Retirement Thrift Investment Board, the independent agency which manages the Thrift Savings Plan, publishes helpful guidance on their website regarding court orders and TSP. Click here to review. Also, if your wife was awarded any other benefits, such as a survivor’s annuity upon her ex-husband’s death, those may be subject to additional rules, regulations, and requirements.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The 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 The Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Intermittent Leave Following Child Birth

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Q:

As a salaried manager, I informally questioned about FMLA leave for the birth of my child. I was informed that I would be approved for 12 workweeks off. I requested to our HR department to take 6 consecutive weeks off (per the doctor’s requirement). Once I was physically released to work with no restrictions, I requested to return to work only 2 days per week for an additional 6 weeks so that I was able to care for my child. I was told that they are not required to allow me to take partial time off and the decision was left up to business need and my direct supervisor. Is this legal? Once I return, am I required to work 5 days a week if I still have 6 weeks of eligible unused FMLA time?

A:

Per 29 CFR § 825.202 (c), an agency generally is not required to grant intermittent leave following child birth. Your agency may grant such a request, but it is discretionary unless you or your baby has a medical condition which justifies additional FMLA leave.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask The 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 The Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Dependent Care FSA vs. Medical Expense FSA

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Q:

I lost my job a week ago, and I discovered that I accidentally signed up for a Dependent Care FSA Account at my last benefits enrollment when I meant to sign up for a Medical Expense FSA Account. I already have a balance of $1,300 in the Dependent Care FSA. Is there any way I can get this money back?

A:

Please consult your benefits representative for further information or questions, but it appears that you have no recourse to the $1,300 balance in your FSA account. Your Dependent Care Account (DCA) is an employer sponsored benefit. Your participation in the DCA ends on the day you separate from your employer. If you still have funds remaining in your DCA, you have a 90 day “run out” period from your official separation date to submit claims for eligible plan expenses incurred before your separation date (any expenses incurred after your separation are not eligible).

Dependent Care Accounts (DCA) can be used to pay for (1) child care of a dependent under 13 so that the parent(s) can work; or (2) elder care of an adult dependent.

Also, you may only change the amount in your FSA balance if you experience a change in status or other qualified event, based on IRS regulations, such as:

  • A change in legal martial status (marriage, divorce, or death of your spouse).
  • A change in the number of your dependents (birth of adoption of a child, or death of a dependent).
  • An event causing your dependent to satisfy or cease to satisfy an eligibility requirement for benefits.

Visit www.fsafeds.com for more information.

This response is written by Maria N. Coleman, associate attorney 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.

Avoid the risks of favoritism

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If you are a manager or supervisor and have a role in a merit selection process, be careful. Over the past several years, I’ve seen an increase in the scrutiny of the manager’s role in the merit selection process — specifically into whether a manager has influenced the process to steer a selection.

Many of these cases involve an allegation that the manager engaged in the prohibited personnel practice (PPP) of granting an unauthorized preference or advantage in hiring an applicant or promoting an employee.

Since I began practicing law, I’ve heard federal employees complain about not being selected for a promotion because someone else was “pre-selected” by the boss and everyone knew it. The selected employee was frequently believed to be favored by the manager, even though he or she was not the best qualified person for the position. Those times have changed. In the past five years or so, the merit promotion hiring process has been transformed by two new factors. First, there has been a substantial increase in the number of individuals who apply for a position and who are eligible for veterans’ preference, which places them at the top of the eligibility list. Second, the recession and growth in unemployment created a vast new pool of applicants looking for work. With that increase in the size of the qualified applicant pool and applicants with veterans’ preference, pre-selection got much more difficult to achieve.

However, there are examples of the hiring selection process being manipulated to favor the person management supposedly wanted to select but who was not high enough on the certificate of eligibles. To the watchdogs over the merit selection process, there are several indicators of improper manipulation of the process: canceling the announcement and reannouncing with changed criteria allegedly to favor the person management wants selected; using a short announcement period over a holiday weekend to reduce the number of applicants; changing the grade or duty station of the position, reannouncing and then assigning different HR specialists to rate and rank applicants.

Who are the watchdogs, and how is anyone held accountable? It can start with a complaint to the agency’s inspector general, found when the Office of Personnel Management conducts its regular audits of an agency’s merit hirings, or reported to the Office of Special Counsel, which has responsibility and jurisdiction for investigating PPPs.

For a manager acting as a selecting official, the allegation that he or she engaged in the unlawful grant of preference can start with rumors that the manager said he “wanted,” “preferred” or “liked” a certain person for the job. An allegation can arise when a manager who is not the selecting official asks the selecting official to “consider” the person for the job. And, of course, the allegation of wrongdoing can occur when a manager directs HR to find a way to hire a particular person.

When allegations of favoritism arise, managers often claim they did not realize that expressing an opinion about a person’s qualifications for a job might be translated into action by the HR staff to make it happen. And the HR staff often explain that they believed the manager’s opinion was meant to directtheir action. In sum, finger-pointing.

OSC takes PPP allegations seriously. HR staff found to have manipulated the merit process to favor one applicant over another can face disciplinary charges. Either the employing agency brings the charge or OSC can independently bring such a charge. The penalty is severe and can range from a 60-day suspension to removal. For managers or supervisors charged with participating in this type of PPP, the penalty also can be severe. It is not uncommon for managers to be suspended or demoted.

You can protect yourself as a manager from being accused of a PPP. Don’t offer an opinion about a particular candidate’s qualifications until you are engaged in making the selection. Don’t recommend or ask someone else to consider a candidate. Don’t get in the way of HR doing its job. Don’t look to bend the rules. Always verbalize a desire that HR abide by all the rules when running a merit selection process. And mostly, believe in the value of the merit system, not favoritism.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is acting general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com and view her blog at blogs.federaltimes.com/federal-law.

 

Q & A Session: Back Pay Calculation

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Q:

I filed a complaint with the OSC and was able to prove all my claims and that I was fired for whistleblowing. The OSC is now in talks with the agency for corrective action. They want to know how much money I made in the last 15 months since my firing so they can subtract it from my back pay as part of the corrective action. Is this legal? The OSC said that this was a new law and I cannot find a thing about it.

A:

Yes, even though you were unlawfully retaliated against for your whistleblower activity, you had a duty to mitigate your damages. The Back Pay Act, codified at 5 U.S.C. § 5596, is the mechanism under which you are entitled to back pay for the pay you would have earned had you not been unlawfully removed from your position. Specifically, the Back Pay Act entitles you to “an amount equal to all or any part of the pay, allowances, or differentials, as applicable which [you] normally would have earned or received during the period [between your separation and the effective date of your reinstatement] if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period.”

However, not all “amounts earned by the employee through other employment” are necessarily deducted from the back pay award. Office of Personnel Management regulations, specifically 5 C.F.R. § 550.805(e)(1), define such amounts to be deducted as “[a]ny outside earnings (gross earnings less any associated business losses and ordinary and necessary business expenses) received by an employee for other employment (including a business enterprise) undertaken to replace the employment from which the employee was [unlawfully] separated…Do not count earnings from additional or “moonlight” employment the employee may have engaged in while Federally employed (before separation) and while erroneously separated.”

While I assume the above sections of code and regulation are the reason you are being asked for your earnings during the period of your separation from employment, I note that neither of them are new, and neither have been updated in years.

This response is written by James P. Garay Heelan, associate attorney 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 Adjustment

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Q:

I had been working in the same position at the same duty station for ten years until my employer recently changed my duty station.  My new worksite is five miles away into the adjacent county that has locality adjustments.  Am I entitled to a pay adjustment?  It is a pay difference of $500/month.

A:

If you have changed locality areas, you should indeed receive a locality adjustment.

Determining your locality pay is usually an easy three-step process because locality payments, special rate supplements, and cost-of-living adjustments are all determined according to where your official duty station is.  First, you determine your official duty station.  As a practical matter, it should be listed on the most recent SF-50 in your Official Personnel Folder, and it should match your new worksite.  Legally, the official duty station for most employees is “the location of an employee’s position of record where the employee regularly performs his or her duties” according to 5 CFR § 531.605(a)(1) – again, this is probably your new worksite.  Second, check your official duty station against the Office of Personnel Management’s (“OPM”) regulations defining locality pay areas at 5 CFR § 531.603 – it will tell you exactly which locality pay area your official duty station is in.  Third, review OPM’s website to determine the locality pay in your area for this year, and you will have arrived at the locality pay rate you are entitled to.

You may find that reviewing 5 CFR § 531.601-531.611 as a whole provides useful information on locality pay.

This response is written by Michael S. Causey, associate attorney 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: Equal Employment Opportunity complaint

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Q:

Can a recently retired federal employee file an Equal Employment Opportunity (“EEO”) complaint?

A:

Yes, for the purposes of filing a complaint, whether the complainant still works for the allegedly discriminatory agency, or not, is immaterial. EEOC regulations require only that the complainant contact the relevant EEO counselor within 45 days of the allegedly discriminatory act. In the case of a retired federal employee, the appropriate EEO counselor would be the counselor for the retiree’s former federal agency.

This response is written by James P. Garay Heelan, associate attorney 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.