Ask The Lawyer

By Debra Roth

Q & A Session: Refunding Accidental Additional Money from an Agency

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Q:

I received additional money in my paycheck. In my previous positions, it was not uncommon to receive awards without notification, so I assumed the additional money was a performance award. I have since been informed that it was an error and I need to repay the money. Am I responsible for someone else’s mistake?

A:

Yes, you must repay that money, regardless of whether or not you have already spent it.  It is not your money to keep.  You are only entitled to money or benefits from the government which are entitled to you by law.  You are not entitled to money or benefits from the government simply because the government, or someone acting on behalf of the government, erroneously gave it to you.

This response is written by Christopher J. Keeven, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Rights When Suspect Favoritism

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Q:

What are my rights if I suspect favoritism in the hiring process?

A:

You could file a complaint with either the agency’s inspector general or the Office of Special Counsel (OSC) if it involves prohibited personnel practices. For instance, OSC investigates prohibited personnel practices, including allegations that an agency official: requested or considered a recommendation based on political connections or influence; obstructed anyone from competing for employment; influenced anyone to withdraw from competition in order to improve or injure the employment prospects of any person; gave an unauthorized advantage in order to improve or injure the employment prospects of any person; engaged in nepotism. Visit osc.gov for more information on filing a complaint.

This response is written by Maria N. Coleman, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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 : Factors Considered for Proposed Disciplinary Action

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Q:

I am a federal supervisor, who recently proposed a disciplinary action for an employee. My supervisor is the deciding official.

Is the deciding official required to complete their own separate analysis?

A:

The Federal regulations outlining the procedures for taking disciplinary actions (defined as suspensions of 14 calendar days or less) and/or adverse actions (defined as suspensions of greater than 14 calendar days, removals, or reduction in pay or grade) against a Federal employee require that an agency, in arriving at its decision, “will consider only the reasons specified in the notice of the proposed action and any answer of the employee, or his or her designated representative, or both, made to a designated official.”  See 5 C.F.R. §§ 752.203(e) and 752.404(g).  Thus, when determining whether to sustain a proposed disciplinary action or adverse action, a deciding official must consider both what is asserted in the notice by the proposing official and what is asserted in response to the proposal by the employee.

Contrarily, a deciding official may not consider any information that was not previously made available to the employee in the notice of proposed action, or provided by the employee in response to the proposal. Indeed, when a deciding official considers new and material information that was not made available to the employee when sustaining a proposed disciplinary or proposed adverse action, the resulting disciplinary action or adverse action must be set aside for lack of due process.  See Stone v. FDIC, 179 F.3d 168 (Fed. Cir. 1999).

However, this does not mean that a deciding official is precluded from obtaining and considering new, material information after an employee responds to a proposed action.  Rather, it merely requires that when a deciding official obtains new, material information after an employee responds to a proposed action that the deciding official is relying upon to make the decision, the employee must be afforded notice of and the opportunity to respond to that information.

This response is written by Christopher J. Keeven, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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 : On Reasonable Accommodation

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Q:

I have a couple questions about reasonable accommodation. Can an agency create a position to accommodate? Also, can an agency accommodate by reassigning an employee to a detail (a position that does not exist)? From the research I have done it states that reassigning an employee must be to a “vacant funded position.”

A:

Your research is accurate. Agencies are given significant flexibility in providing reasonable accommodations to their employees. It is within an agency’s discretion whether to create a position for which to reassign an employee or to place an employee on detail (essentially a temporary reassignment to a new position), if such reassignment would reasonably accommodate the employee’s medical needs. But, an agency is not obligated to exercise that discretion. An agency is only obligated to reassign an employee if there is a vacant, funded position available, and if reassignment to that position will reasonably accommodate the employee’s medication needs.

This response is written by James P. Garay Heelan, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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 : Becoming a Supervisor via Position Rewrite

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Q:

Can a non-supervisory employee, who is not a member of the bargaining unit, become a permanent supervisor via a position description rewrite?  Is there any recourse to such a change?

A:

Yes, your employing Agency is generally free to assign you duties, including supervisory duties, in a fashion which best fits the Government’s needs.  You probably have very minimal recourse to contest such a change.  Although your employing Agency might allow you to file a grievance regarding a change to your position description or supervisory status, if management has already decided to move to a supervisory position, you may not be successful in any such grievance.  Before filing any grievance, you should review your Agency grievance procedures to determine if the matter may be grieved, and as a practical matter, you should also consider whether resisting a change in supervisory status might cause your managers to view you as someone who avoids greater responsibility.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Being Overlooked for a Pay Raise/ Promotion

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Q:

I feel I’m being overlooked for a pay raise/promotion. What are my rights?

A:

A Federal employee does not have a right or guarantee of being promoted.  Likewise, management has the right to assign work, which includes the right to select employees for promotion and to fill vacancies.  In doing so, management must comply with the Federal merit system principals, and management may not act with the intent to not hire or promote an individual because of his or her race, sex, age, religion, national origin, disability, participation in the EEO process, and/or whistleblowing activity.

In the situation you describe, it appears management acted within its rights in determining the promotion criteria.  It may seem unfair to you that management is changing the criteria for promotion to your detriment, but so long as management is in compliance with the Federal merit system principals, and not acting with discriminatory or retaliatory intent, management is within its right to establish and/or change promotion criteria.

However, it would be improper for management to change the promotion criteria if management is acting solely for the purposes of either (1) giving an employee an unfair advantage in the promotion/hiring process in violation of merit system principals, or (2) preventing you and others in particular from being promoted because of your race, sex, age, religion, national origin, disability, participation in the EEO process, and/or whistleblowing activity.  Absent any evidence that management violated merit system principals, or any evidence of discriminatory or retaliatory animus against you, management has not acted improperly.

This response is written by Christopher J. Keeven, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Performance Ratings and Retirement

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Q:

Can a federal employee retire having had an unacceptable performance rating at the time of retirement?

A:

Yes, so long as a federal employee meet requirements of whichever retirement mechanism applies to him or her, the employee can retire having an unacceptable performance rating at the time of retirement.

Keep in mind, if you receive an unacceptable rating at the end of your performance improvement plan (PIP) and you subsequently receive a proposed personnel action (i.e. proposed removal or proposed demotion) because of any alleged poor performance, you can resign but the SF-50 memorializing your separation from the federal service will be coded to indicate you separated in lieu of an involuntary action.

This response is written by James P. Garay Heelan, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Duty Not In Job Description

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Q:

Can you advise what should be done if a critical and permanent duty is measured and rated but is not listed in a job description?

A:

The Office of Personnel Management (“OPM”) says in its position classification regulations that you should open a conversation with management about amending your position description. If you are unhappy with the results from that conversation, you can have the issue determined by filing a grievance under either the administrative or the negotiated grievance procedure applicable to you and your agency. This may or may not result in a change to the position description.

Alternatively, you may ask for a desk audit, which may change your position description, and it could re-determine your grade level, which might go up or down. Because your agency is measuring and rating you for the critical duty, a desk audit could well result in a change of your position description.

This response is written by James P. Garay Heelan, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Delay in Classification Audit

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Q:  I submitted a classification audit based on accretion of duties.  There was a long delay in interviewing me until I asked the Union President for help on this matter.  Then, I finally was interviewed for the audit five months ago.  The interviewer told me that her boss had said I deserved a grade increase based on my work.  I have heard nothing since.  I am afraid my Agency is retaliating against me for contacting the union about this matter.  Do they have a deadline to respond?  Can I file a Freedom of Information Act request to learn more about what is going on?

A: It sounds as though you have pursued a desk audit performed by your Agency.  Your internal agency processes and deadlines for processing your audit are unclear to me, but you could request the written guidelines from your human resources office.

You may be able to learn more about what is going on behind the scenes with a Freedom of Information Act/Privacy Act request.  Agencies are sometimes slow to respond to such requests, but it can be a useful means to learn more.  You could also continue to request union assistance, since it appears that they were able to aid you in speeding the process along before.

Please know that you can always seek a classification appeal with the Office of Personnel Management. You can find the appeal procedures at 5 CFR § 511.601-511.616.  However, be aware that OPM can and does find that that people requesting audits are actually graded too highly, leading to a reduction, rather than an increase, in grade.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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: Suspected Favoritism

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Q:

I believe that my boss favors another employee over me.  She is graded higher than I am while we do similar work.  She has received step increases which do not appear to be in keeping with normal timetables.  She receives generous time off awards, despite the fact that she does not work 40-hour weeks, and much of the time she actually spends in the office is spent on social media sites and talking with other employees.  When the favored employee became pregnant, she was permitted to telework from home.  Then, after giving birth, she was allowed time to express milk without ever having to take leave to do so or make the time up later.  She was also allowed to babysit her child in the office, although when I complained about that practice, it ended and was replaced with a telework agreement.

I feel like I am treated differently than this favored employee.  What should I do about it?

A:

Concerning your different grades, I would note that perhaps there are more differences in your work or qualifications than you believe.  The other employee might have more experience or education than you do.  If you are concerned about the grading difference, you could request a desk audit from the Office of Personnel Management (“OPM”), which could assign you a higher grade.  But exercise caution – OPM could also find that the work you are performing is beneath your grade, and actually reduce your grade.  Concerning your allegation that she has received inappropriate step increases, it would be very difficult, if it is even possible, for an employee to receive an illegal step increase.

Regarding telework, you management is free to provide telework agreements based on the Agency’s needs so it is in conformance with telework policies.  It is possible that if you requested a telework agreement, you would also be granted one.

The issues surrounding the expressing breast milk while on-duty appears to be a very minor issue, and one which could cause you to be viewed as insensitive or petty if you raised it with your employer, since it will not be a permanent condition and likely does not consume a large amount of office time.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

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.