Ask The Lawyer

By Debra Roth

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.

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