Ask The Lawyer

By Debra Roth

Q & A Session: Modifying Beneficiary of Survivor Benefit

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Q:

I was divorced in 1995 after my retirement from the U.S. Customs Service and ordered to leave my ex-spouse as beneficiary of my survivor benefits but that the court would retain jurisdiction to revisit after my remarriage. My ex has remarried, but I do not know when. I have remarried and I am seeking a way in which I may make my current spouse beneficiary to the survivor benefits. Is the original order valid with OPM? If so, how many I seek modification allowing me to choose my beneficiary?

A:

If the original order has been approved by OPM following the issuance of the Qualified Domestic Relations Order (QDRO), it is presumptively still valid.  In order to select your current spouse as a beneficiary for your survivor benefits, you will have to modify your QDRO with the court that issued the original order.

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.

Forced to move vs. forced out

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If you follow decisions from the Merit Systems Protection Board, you may have seen that, last year, the board issued three decisions in the case of Mary A. Miller v. Department of the Interior. This case involved the removal of a national park superintendent in Alaska who did not work under a mobility agreement, and who declined a geographic reassignment and was subsequently terminated from her employment for her refusal.

In each of the three board decisions, it reversed the agency action finding that the agency failed to carry its burden of proof that the reassignment was for a bona fide reason and not simply to pressure the employee to resign.

The case now seems in a posture to be appealed to the board’s reviewing court, the U.S. Court of Appeals for the Federal Circuit. The legal issue is whether the board has prescribed a heightened standard for upholding an agency’s directed geographic reassignment action that requires showing the directed reassignment was “necessary.”

I don’t intend to weigh in on whether the board erred or not. But The Miller case is worth discussing in this column for the simple reason that directed geographic reassignments are getting a fresh look by the board.

For many years, most federal employees who were terminated for refusing a subject to a directed geographic reassignment accepted the reality that appealing their removal to the board after being terminated for refusing to accept the reassignment would not be meaningful. The belief has been that the board gave a pro forma review of an agency’s action, rarely finding that the reassignment lacked legitimacy. Likewise, there has been a widely held belief among the federal workforce that agencies use directed geographic reassignments as a means to force out an employee who is not willing to relocate, rather than a real need to fill that job with that person. Employees facing such actions feel tremendous pressure in deciding between accepting the new position in a location usually far from their current duty station (and home) or quitting. So to see the board take a hard look at the bona fides of such an action could mean a change is on the horizon worth considering.

The Miller case holds that when an employee is terminated for refusing to accept a geographic reassignment, the agency carries the burden of proving by a preponderance of evidence that “the reassignment was properly ordered due to bona fide considerations in the interest of promoting the efficiency of the service and in accordance with agency discretion.” In reversing the agency’s action, the board found that “the agency invoked its discretion to reassign the appellant ‘as a veil to effect’ her separation.”

So what did the board focus on to conclude the agency lacked a bona fide management reason that is worth considering as agencies proceed with such actions or if you are subjected to one?

By way of example, the The board held that proof of a bona fide management reason for a reassignment could be by showing that the agency showing that it had eliminated or no longer had a need for the employee’s continued performance in her current position, or because that it needed to address a specific performance issue in her former position. Proof alone that there is a legitimate reason to create and/or fill the position is not enough. The proof must show that there is a rational basis for requiring the employee to accept a geographic reassignment out of her position.

While the board’s Miller decision explains why in deciding the case it is not straying from its precedent, notably, the result it reaches is different: reversal of the agency action. This case has surely caught the eye of many agencies, but not necessarily the workforce. Many of you with years of working in federal service may think you’ve seen an agency use a directed reassignment to force an employee to quit rather than having a legitimate need for that employee to fill that position located far away from his or her duty station. Putting aside whether the board’s decision is appealed to the Federal Circuit, it’s worth taking a fresh look at the use of geographic reassignments with regard to employees who do not work under mobility agreements. At a minimum, and for the good of workplace morale and engagement, it may be time to work on changing the perception that geographic reassignments are being used to force a resignation rather than a legitimate management need for that person to fill that position.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is 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: Crime Conviction Effect on Retirement Pension

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Q:

If someone has retired from federal service and they are convicted of a crime, will they lose their pension? Do they have to inform the Office of Personnel Management of the fact that they were convicted of a crime.

A:

If you are no longer federally employed or maintaining a security clearance, you are generally not obligated to inform OPM of a post-retirement conviction. Being convicted of a crime almost never jeopardizes a federal pension – the rare exception to this rule for federal civil servants is the list of crimes codified at 5 U.S.C § 8312. Those charges almost all relate to criminal disloyalty to the United States: espionage, treason, sabotage, insurrection against the United States, improper sharing or intentional loss of certain highly classified documents, and so on. There are occasional efforts by some Members of Congress to expand the sorts of convictions which could cause a retiree to lose their federal pension, although none of those proposals have been passed to date.

As it could impact some readers, I would also like to note that members of the military who are convicted in a court martial under the Uniform Code of Military Justice can lose their governmental pensions for a much wider array of crimes, including those which do not necessarily reflect crimes against the security of the United States

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.

Resigning and Withdrawing CSRS retirement funds?

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Q:

Can I resign (not retire) and withdraw all my CSRS retirement funds?

A:

It depends. Prior to October 1, 1994, federal employees entering retirement could receive a payment equal to the value of the contributions they made to the retirement program over their careers as a single, tax-free lump sum payment, with annuity payments then reduced. But now, this “lump-sun option” exists only for federal employees who have conditions resulting in a life expectancy of less than two years and who are not taking disability retirement.

This response is written by James P. Garay Heelan, 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: Abusive Behavior From Supervisor After EEO Complaint

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Q:

I am a federal government employee with over twenty years of exceptional performance in the Department of Defense. I was verbally attacked by my supervisor. He got in my face while I was sitting down and he began yelling and pointing his finger in my face. When I reported the incident to higher leadership, it was ignored. They even attempted to remove me from the work space I have occupied for many years. It wasn’t until I filed an EEO complaint regarding the abusive hostile work environment that they moved my supervisor from the office we shared. However, my leadership allowed him to remain as my supervisor and rater. His behavior towards me has worsened since the EEO complaint in the form of reprisal and higher leadership appears to be fostering this abusive, hostile behavior. What can I do?

A:

Filing an EEO complaint alleging discrimination on any basis under Title VII is considered a “protected activity.” Law prohibits retaliation for opposing any practice made unlawful by Title VII, the ADEA, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under these statutes. In order to file a reprisal complaint, you must begin the process by contacting an EEO counselor within 45 calendar days of the personnel action or event that you believe is motivated by reprisal. From there, you may file a formal EEO complaint. However, to pursue an EEO complaint, you must sufficiently claim that you were subjected to an action that would be considered materially adverse to a reasonable employee and that the action could dissuade a reasonable employee from making or supporting a charge of discrimination.

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: Adverse Action v. Protected Activity Time Period

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Q:

I have a question regarding the adverse action v. protected activity time period. Is the protected activity only the filing of the formal EEO complaint or can it be activities after, such as mediation, prehearing, etc.? 

A:

I assume that you are referring to the inference of retaliation than can be created by the issuance of an adverse employment action (e.g. a proposed removal action or bad performance appraisal) to an employee shortly after that employee engaged in protected EEO activity.

While the EEOC has not identified many discrete “protected activities,” the federal courts have acknowledged “protected activity” to encompass actions by the complaining employee in pursuit of his or her complaint. Examples of such acknowledged “protected activity” by the federal courts include the filing of the EEO complaint, execution of a settlement agreement to resolve the EEO complaint, and even sending letters attempting to administratively appeal closure of an EEO complaint within a government agency.

I note that even though an activity may be considered protected, the EEOC will require the time period between the agency’s initial knowledge of the prior protected activity and the adverse employment action to be “very close” to establish a prima facie case of reprisal, unless there is other evidence to support the inference that the action was taken in retaliation for the prior protected activity.

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: Sick Leave to Care for Another

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Q:

Can my agency ask me for information about how I am related to someone when I put in for sick leave to care for that person?

A:

Yes. When a federal employee requests sick leave to care for a family member, the employer agency may require the employee to document his or her relationship with that family member. But practically, this requirement is not very limiting, as the definition of “family member” in this context is broad and includes even “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship;” the complete definition may be found at 5 C.F.R. § 630.201.

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: Retiring as a Response to a Proposed Removal?

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Q:

For the first time in my 26 year career, I am facing a dismissal for misconduct from my agency. Rather than resigning without a job prospect in sight, I am trying to see if I can retire. I am 50 with 26 years of service in the FERS system. Is it possible to retire in response to a proposed removal, or do I have to be offered retirement through a buyout?

A:

No, while there are special exceptions for federal employees who have spent their careers in particular types of positions, 5 U.S.C. § 8336(d)(2) generally requires federal employees to be at least 55 years old to immediately retire and be entitled to an annuity.

Under your circumstances, as you are at least 50 years old and have at least 25 years of federal service, and assuming that you have not spent your career in one of the position categories that receive special treatment under 5 U.S.C. § 8336, you would need to be given the opportunity to apply for voluntary early retirement, under 5 U.S.C. § 8336(d)(2), which is sometimes part of a “buyout” offer.

If voluntary early retirement is not an option, then it appears you will need to find a new federal position and satisfy one of the other retirement equations in order to receive an annuity benefit.

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: Annuity of A Percentage of a Federal Employee’s Retirement

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Q:

I am a government employee who retired in 2013. My ex-wife will be receiving an annuity of 16% of my retirement. In the divorce decree there is a QDRO which stated that she is also entitled to the same percentage of survivor benefits. Our retirement councilor stated that “because she will be receiving her own annuity, she will not be entitled to a portion of my wife’s survivor benefits.”

OPM has just finalized my case and has awarded her the survivor benefits and the same percentage rate as the annuity. Is this correct?

A:

Without a QDRO, a former spouse who becomes divorced before an annuity’s starting date may lose rights to survivor benefits protections. If the federal employee remarries, his/her new spouse may acquire the right to those survivor benefits. However, a QDRO can change that result significantly. If OPM has approved a QDRO, they will attempt to follow the language of the order. Therefore, if the QDRO states that an ex-spouse will be entitled to a percentage of both retirement and survivor benefits, and OPM accepts that QDRO, they will attempt to enact it. You may, however, be able to amend your QDRO in the court in which it was issued before submitting the amended QDRO to OPM to reflect your original intentions.

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.

Think before you hit the ‘send’ key

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Compared to just a decade ago, so much of how we work today is digital. Emails, cloud-sharing, texting — it’s how we get the job done.

Staying current in our professional and personal lives is important, but be aware that the technological push can have negative consequences if not managed correctly. When federal managers get in trouble in the digital workplace, it’s usually because of a failure to ponder a difficult, delicate or complex matter, or the result of improper personal use of government devices. Stay safe and ponder your message before you hit the “send” key.

What’s it mean to be careful? First, the golden rule: If you wouldn’t say it to someone’s face, don’t say it in an email. With the upswing in going digital, the rules of etiquette have declined. People will say things to one another in an email that they would never say to each other face to face, because it would be rude, hurtful or inappropriate. Countless federal employees are disciplined for making statements in emails that fit this category. That’s aside from forwarding the inappropriate jokes. Communicating by email does not relieve you of the obligation to be polite and appropriate.

Second, there is the increased use of email to manage down. For some managers who have difficult employees, email has relieved them of the need to actually talk to or counsel an employee. Doing it by email is easier. However, there simply is no substitute for the face-to-face counseling session. Go ahead and document the meeting with an email, but to manage a workforce and empower those who are ready, willing and able, and counsel those in need of adjustments, we need to talk to each other. Also, subtlety can get lost in email communication. And without being face to face, you cannot gauge the employee’s reaction to your words.

Third, how do you minimize the risk of being misunderstood while getting the work done? Edit yourself. Just think about how many emails you send or receive each day that contain typographical errors, spelling errors, grammatical errors or missing words. It’s become acceptable to send emails with such mistakes. A decade ago, we would have sent a letter or memo, and we’d never let it go out with those errors. But we view email communication to be less formal. Ensure you are taken seriously by proofreading your emails before hitting “send.” Undoubtedly you will also choose to edit your message for clarity and tone, add something you forgot (relieving you of the need to send follow up emails), or delete something that’s better left out of an email. This is a bit of work, but a well-stated email reflects well on you professionally and, when dealing with your subordinates, leaves no room for confusion or doubt on where you stand on a particular issue.

Then there are the emails of a personal nature on a government device. This almost always leads to trouble when the content involves a romantic relationship with a subordinate and you think you’re keeping it discreet. What usually happens is the manager believes that, because the subordinate is a willing participant in the relationship, it’s all kept just between the two of them. That may be true — until someone files a complaint with the Office of the Inspector General and claims you’re showing favoritism in ratings, work assignments, promotions or office locations. Your emails and text messages are fair game and will, without a doubt, all be recovered by the OIG.

If it’s a personal matter, whether it is communication with your friends and family members, or one with your co-workers, keep it off the government computer. That’s why we all have personal devices.

It’s difficult to predict how the way we work and communicate in the next 10 years will evolve. It seems the pace may quicken and we’ll experience a further reduction of formality as the use of social media in the workplace increases. If the past 10 years are a guide to the next decade, it will take a lot of effort to get it right while managing in an electronic age, and the pressure to be responsive will continue to be fodder for mistakes.