Ask The Lawyer

By Debra Roth

Q & A Session – Damages for Stress Affecting Health

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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 about to enter into negotiations for settlement with a federal agency over unfair evaluations, failure to award compensatory time for hours worked, disparate treatment in the awarding of compensatory time, and retaliation and harassment. What are reasonable damages when one can show the stress affected one’s health and you are a disabled employee?

 

A:

“Ask the Lawyer” cannot give advice on specific cases. Stress affecting health can be a basis for damages. The amount varies from case to case depending on circumstances.

 

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: Bullying Bosses

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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 hit on the shoulder by an upper level employee during a staff meeting. I did not report it at the time. Six months later I received a negative performance rating. Since that time my requests for training, telework, alternate work hours, etc have been denied. I feel bullied by my supervisors and am afraid to go to work. I am a rehired annuitant. What should I do?

A:

If you are a rehired annuitant, you work at the discretion of the agency. Your failure to report the assault you describe at the time it happened decreases the chances that someone will take it seriously if you complain now. Also, as a re-employed annuitant, the more you complain about your personal workplace situation, the more likely you are to experience your agency’s exercise of discretion to let you go.

 
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.

 

Being a union member has advantages

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In theory, your rights as a union member should be the same as your rights if you are in a bargaining unit and not a union member. Being a union member means you pay dues. Nonmembers do not pay dues but are supposed to receive representation rights and other benefits related to the union being the exclusive representative of employees in the bargaining unit.

While federal-sector labor unions have an obligation to represent all employees in the bargaining unit fairly, dues-paying members are likely to be more knowledgeable about the union and how it works and are likely to receive services from the union with a smile and enthusiasm that may not necessarily be present if the union is representing someone who is not paying dues. One of the biggest advantages of being in a bargaining unit is a grievance procedure that includes the availability, at the union’s option, of having grievances resolved by an outside arbitrator. Because arbitration is expensive and because it  is difficult to challenge a union’s decision against arbitration, being a dues-paying member is a factor in your favor to obtain the arbitration option, if needed. Arbitration is widely viewed in the labor relations community as more favorable to employees than is the Merit Systems Protection Board.

The collective bargaining agreement lists rights and entitlements for employees in the bargaining unit that have been negotiated between the union and agency management. Topics include telework policies and procedures, sick leave (including requirements for issuing a leave restriction letter), performance management and specifics of the grievance procedure. Absent from the list are pay, assignment of work and a few other non-negotiable items.

Anyone in the bargaining unit should read the collective bargaining agreement. Managers who oversee bargaining-unit employees should also be familiar with the agreement. This is one of the best ways to help labor-management relations. Clear and consistent application of the requirements of the agreement by both management and labor, including employees in the represented labor force, leads to fewer grievances and unfair labor practice allegations.

One of a bargaining-unit member’s best rights is the right to representation by the union on matters of workplace concern. This right takes place in three primary ways:

The first is the grievance procedure.  The deadlines, matters covered and steps for processing the grievance are spelled out in the collective bargaining agreement.

Management knows that once the grievance procedure is exhausted, the union has the right to invoke binding arbitration by an outside arbitrator. This has a sobering effect on management to carefully consider a union grievance and to grant relief if the grievance has merit. This stands in stark contrast to the agency administrative grievance procedure available to employees outside the bargaining unit; this procedure is not subject to outside review and does not receive the same level of respect.

The second is representation for formal meetings concerning personnel policies and other working conditions. The union need not request to be present at a formal meeting. It is management’s responsibility to recognize that a meeting meets the formal criteria and to invite the union to the meeting.

Finally, bargaining-unit employees are entitled to union representation if they are to be interviewed and the interview could result in disciplinary actions.

This last category of representation is often referred to as a Weingarten right, named after a Supreme Court case. The employee must specifically request union representation and the employee must reasonably believe disciplinary action will result.

Q & A Session – No Fear Act

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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 reported misconduct of two federal employees under the No Fear Act and EEOC. An investigation was conducted, which ultimately substantiated my allegations. As my reporting was done under the No Fear Act against my supervisor for misconduct in violation of Title VII, no action was ever taken to discipline the employees by the leadership. I was sent on detail out of my facility based on false allegations to the leadership by my supervisor in retaliation for my reporting of misconduct by the supervisor. I was considered a troublemaker and spent 23 months on detail at another facility. I was then returned to my facility to be again under the supervisor of the same supervisor at the same location.

Is it ethical by leadership to disregard the No Fear Act and place the employee who did the misconduct reporting back under the same supervisor? It appears that, due to a lack of implementation, the No Fear Act is a selective paper tiger.

A:

You correctly describe the implementation of the No Fear Act as a paper tiger. There are numerous examples of supervisors who have been found to have discriminated against and subordinates who continue in their jobs with no apparent penalty.

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 – Unethical Supervisor

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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 for a federal agency and have concerns about my supervisor’s work habits. He routinely takes long lunches and uses his government phone to conduct personal business, among other things. There are many examples of unethical practices, but am I overreacting? What should be done?

A:

You are describing making yourself a whistleblower. What you are disclosing is a protected disclosure, but many whistleblowers experience reprisal. If you decide to disclose the wrongdoing you believe you are observing and experience reprisal, you may file a claim with the U.S. Office of Special Counsel.

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 – Do Contractors have Rights in a Federal Investigation?

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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 husband is a contractor for a federal agency. He was called on Monday and told to stay home on administrative leave because a federal civilian employee had filed a complaint against him at work. They did not tell him what the complaint was, only who complained. He was notified today by email that they were trying to relocate his cubicle away from the complainant but still does not know why he is being punished. He hasn’t been given the opportunity to defend himself. There has not been any meeting set up with supervisors and the employee to try and fix this. Nobody has called and updated him or asked him his side of the story. What are his rights as a contractor working for the federal agency? What should he do at this point?

A:

Most contractor employees are at-will and do not have any rights in a federal investigation. Their employment relationship is between the employee and the company that has the contract with the government.

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 – Denied Sick 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:

Last year, I requested four hours sick leave to see my doctor. The leave was requested at least days in advance, and I explained that I was in pain at the time and was completely out of medication. But my leave was denied. Is my supervisor allowed to deny sick leave?

A:

You are entitled to sick leave to take care of a sick family member or if you are personally incapacitated. Management does have some discretion to deny sick leave for medical appointments based on a need for you in the office. However, it must be reasonable and allow you to use sick leave for your medical appointment if you can be spared.

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 – Acknowledgement Order

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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 submitted my EEOC case and Report of Investigation for a hearing in June. The EEOC said they received it and have assigned it to an Administrative Judge but I still have not received an acknowledgement order. The EEOC also gave me a case number. I though the AJ has 20 days to submit the acknowledgement order to the complainant? What should I do next?

A:

You may be confusing the EEOC with the Merit Systems Protection Board. The MSPB acts very quickly when an appeal is filed. The wait for an EEOC acknowledgement order after filing a hearing request is getting longer and longer. This is due at least in part to a shortage of judges and the lack of resources to hire more of them.

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 – Suing after Employee Filed Charges of Sexual Harassment and Hostile Work Environment

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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:

An employee I supervise filed charges of sexual harassment and hostile work environment. The agency conducted a fact-finding investigation and the employee, myself and several other employees the employee identified were interviewed and had to sign affidavits.

The agency head met with me last week and said there was no evidence or proof otherwise of any of the charges, and that a formal letter closing the case would be issued.

Because of the false and malicious allegations, I was under extreme mental duress and did not apply for a local opportunity that I was well-qualified for. In addition, because higher level management officials had to be notified, and most employees at the local level were aware of the charges, my reputation was damaged.

Can I sue the employee and the agency for defamation of character, false and malicious claim and extreme mental anguish?

A:

No. The employee’s filing of a claim would most likely be found to be within the scope of the employee’s job and the employee is thus immune from a lawsuit. The agency also cannot be sued on the grounds you state.

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 – Signing a PIP

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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 worked for the federal government for 28 years with 15 at my current agency. My current agency wants to put me on a Performance Improvement Plan, but I have decided to take deferred retirement. I have not signed the PIP and sent it back. Since I am retiring, do I have to sign the PIP? If I don’t, what could the agency do to me if anything?

A:

You do not have to sign the PIP for it to be in effect. If, at the end of your PIP, the agency believes your performance to be unacceptable, it may propose your removal. You do have the right to challenge that proposal and appeal an adverse decision to the Merit Systems Protection Board, but under a standard of evidence very favorable to your agency.

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.