By Bill Bransford
Q & A Session – Libel?
May 16th, 2013 | Uncategorized
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:
Should I hire a private lawyer to defend myself against what I believe is libel from a union official? I am a manager, GS-14, and have received a copy of an email from this individual sent to the highest levels of management within my agency, accusing me of outrageously unprofessional behavior.
A:
Libel or slander are common law torts that normally can be the subject of a lawsuit. However, federal employees, acting within the scope of their employment, are immune from suit for common law torts. Your union official most likely fits into this category.
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 – Oversight of OPM’s Retirement Program
May 16th, 2013 | Uncategorized
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:
Why doesn’t the Office of Personnel Management answer any inquiries from me or my Senator or Congressman? I have been waiting more than 12 months for OPM to correct my disability retirement. Now I am in a financial disaster because OPM has taken an unreasonable amount of time to correct my disability retirement after Social Security stopped my benefits. Why is OPM exempt from any oversight or scrutiny? I guess it is time to go to the press…
A:
You are certainly free to go to the press. The Office of Personnel Management is under tremendous scrutiny for its administration of the retirement program. I don’t know why they don’t answer your inquiries or correct your situation.
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 – Am I Entitled to a Temporary Promotion?
May 13th, 2013 | Uncategorized
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 a current GS-14 Supervisory IT Specialist and recently served as the acting Section Chief (GS-15) for 180 days when my boss left our branch for another position. My Branch Chief says I am not entitled to a temporary raise for the vacant position due to a lack of funding. Am I entitled to a temporary promotion for the period that I acted in the vacant position role? They eventually moved another GS-15 into the vacant position from another branch.
A:
You are entitled to a temporary promotion with the higher pay if you are actually promoted. Temporary promotions without competition are time limited. If you were just detailed, you are not entitled to the higher pay.
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 Upgrade Request
May 13th, 2013 | Uncategorized
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:
Another administrative officer in my agency has far less responsibilities than I have and is a GS-11/12. I am a GS-09. We perform essentially the same functions but my responsibilities are considerably more complex and expansive. My supervisor and his supervisor submitted an upgrade request but our in-house classifier said that my position should remain a 9. What steps can I take to challenge this?
A:
You can file a classification appeal with the Office of Personnel Management, but the standards for prevailing there are pretty tough.
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.
By resigning, you can’t hide pending disciplinary action
May 9th, 2013 | Uncategorized
A common personnel practice when dealing with a problem employee is to offer the employee the chance to resign with a “clean record” before the disciplinary process starts. An employee who receives such a warning, even a warning after the formal process begins, may decide it is better to resign rather than having a removal on the record. This is not always the best idea.
There are significant differences in the coding that goes on Standard Form 50 (SF-50), Notification of Personnel Action, based on your job status and your point in the disciplinary process.
If you know you are going to be fired but resign first, your code merely says you resigned. Of course, it would be nice if you did not have human resources professionals asking you to explain why you would leave a good government job without some job opportunity available. Even though this kind of record looks relatively clean, it still has problems.
If you receive a notice that you are being terminated during your probationary period, your final SF-50 is not permitted to give the reasons for your termination. It does, however, indicate a code that will say to an experienced HR professional that your separation was involuntary. During a probation or trial period, it does seem there are at least some advantages in resigning before being fired, but there are still other considerations.
If you are in the competitive service, your agency must give you written reasons for your termination during probation. You may want to evaluate the strength and motive of those reasons. Even though you do not have an appeal right to the Merit Systems Protection Board (MSPB) as a probationary or trial employee, you can file an equal employment opportunity (EEO) complaint or a whistle-blower reprisal claim. If you resign, it is difficult to later have your claim heard.
Those employees beyond their probationary or trial period face different concerns. If the employee receives a notice of proposed removal and then resigns, the final SF-50 will say that the employee resigned after a proposed removal was issued. While not a legal bar to a future federal job, this makes being hired a near impossibility.
The nonprobationary employee who receives a verbal warning to resign or face removal proceedings has to weigh the strength of any case against him or her against the value of the appeal right. Remember, in an MSPB appeal, your agency must prove the charges against you, which places you and the agency in a different legal posture than if you only file an EEO or whistle-blower reprisal claim. There is much case law that says an employee who resigns after being threatened with termination and resigns voluntarily cannot appeal to MSPB.
If an employee who is either beyond or within the probationary period receives a notice of removal, or a proposed removal, it is not too late to go back and negotiate a “clean record.” This can be done at the agency or MSPB and is a frequent term in a settlement of an appeal, even though it is the agency’s choice on whether to agree to it. Such an agreement also will require the employee’s waiver of any legal challenge to the removal.
Another obstacle is Optional Form 306 (OF-306), Declaration for Federal Employment, which most agencies require to be executed before hiring. The form asks if during the last five years, you have been fired, resigned after being told you would be fired or left a job because of specific problems. Failure to answer truthfully could theoretically lead to criminal prosecution or being fired again, with a determination that you are unsuitable for federal employment.
Signing an OF-306 raises the question about how much choice you really have in resigning or being fired. The supposed “clean record” is not as clean as it appears.
Your agency wants you gone. Now what?
April 15th, 2013 | Uncategorized
Contrary to popular opinion, federal employees can be fired and often are. Sometimes the process is a nudge out the door so the employee receives the message and acts on it before formal action is taken. There are no statistics on how often this happens, but it is probably more common than the traditional disciplinary actions that occur.
Other times the message is delivered more subtly. For example, a supervisor used to dealing directly with superiors and then with a clear chain of command to subordinates suddenly finds the higher-ups bypassing him and going directly to the subordinates without informing him. To add insult to injury, higher management then blames the supervisor when something goes wrong. Not being invited to meetings or being excluded from email chains also are signs of not being wanted, especially when inclusion used to be the norm.
The performance appraisal rating also can send a message. Many employees abhor the fully successful rating because it is viewed as a barrier to getting another federal job. What is worse is a fully successful rating with negative comments. This adds to the frustration of many employees because they sense they are unwanted and yet lack a means to escape to another agency.
If you are a supervisor, a sign your agency does not want you is for your section to be subjected to a workplace climate assessment by an outside contractor. This is usually bad news for the targeted supervisor. Higher-level management often has an idea of what it views the problem to be, or the assessment is being used as a pretext to get the manager out of the way for other reasons.
Denial of training that had been routine also can be a sign, but be careful in these tight budget times not to confuse higher management’s motives. Before you jump to conclusions, look around and determine whether others also are being denied formerly granted training.
Some managers will simply tell you that you are no longer wanted and why. If you are in your probationary period, this feedback can be accompanied by a letter terminating you from your job without earlier notice. If you have passed your probationary period, your manager may try to explain why you are viewed as a problem and offer you options, such as resigning before you are fired. If you are offered this option, you may want to have your union or a lawyer help you with your decision to leave or to stay and fight. The reality is that once your manager offers you the choice of resigning before the adverse action process begins, you still have an obligation to disclose to a future potential federal employer the fact that you resigned after being told you would be fired.
While it can be unpleasant, many times it is better to hang in there and call management’s bluff. Doing so can be risky and should be done with an objective assessment of the facts and circumstances. Often, a consultation with a lawyer can help with the decision, especially when a resigning employee receives such a small clean slate when he resigns after being told that removal proceedings will occur, but before the adverse action process has started.
Fighting back when you know you are no longer wanted is possible. The employee can file a grievance or equal employment opportunity complaint or seek whistle-blower protection. There are downsides. A grievance will generally be decided by the agency trying to get you to leave. Even if you are in a bargaining unit, grievances are often about vague perceptions, and the lack of clarity usually makes them poor candidates for arbitration. The EEO system takes a long time, and you must prove discrimination. Finally, to be protected as a whistle-blower you must make a protected disclosure and show a relationship between that disclosure and the unpleasant workplace treatment.
When it is clear that your agency does not want you, the most successful act is to find another job. Learn how to read the tea leaves early, before any damage can be done to your record to inhibit a future job search.
Manage administrative leave wisely to cut costs
March 18th, 2013 | Uncategorized
Administrative leave, unlike sick leave and annual leave, is not specifically mentioned in statute or regulations governing federal employee benefits. It comes from two sources:
- Administrative leave that is excused absence because of a natural disaster or other temporary and short-term need to be away from the workplace.
- Administrative leave that applies to a specific federal employee who has come under scrutiny because of misconduct or some issue related to a security clearance.
If government offices shut down because of snow or an event like Hurricane Sandy, employees in the affected region will be on administrative leave with some exceptions. If you are an emergency worker or you have a telework agreement, you are expected to work. Those employees who are not expected to respond to the emergency or who have been excluded from the telework process get the day off without a charge to leave.
Granting this type of administrative leave is based on general authority to manage the workforce. In fact, one impetus for the increased emphasis on telework is to reduce the number of unproductive employees during a circumstance where it is not safe for employees to commute to work.
Ordinarily, this type of administrative leave is granted by an appropriate authority, which can be the Office of Personnel Management or a Federal Executive Board. It can also be granted by a supervisor with knowledge of circumstances that justify an excused absence with pay. It is generally used sparingly and for good cause.
The second type of administrative leave that focuses on a particular person, generally for misconduct, can be more controversial and unpleasant even if it means time off with pay for the affected employee.
The authority for administrative leave for misconduct comes from an OPM regulation that says an employee who faces disciplinary action ordinarily will remain in a duty status during the notice period before the action can be implemented. In rare circumstances — where the agency determines the employee’s presence endangers the employee or others, results in a loss of or damage to government property, or otherwise threatens legitimate government interests — the agency may engage in a series of actions including putting the employee in a paid non-duty status for as long as is necessary to effect the disciplinary action.
It seems clear from the way this regulation is written that administrative leave for disciplinary reasons is meant to be for a short time and to be used sparingly. The practice that has evolved is broader use, and in some cases the administrative leave — with pay — goes on for many months or even years.
The use of administrative leave has also expanded to security concerns. Someone whose security clearance is threatened can be placed on an indefinite suspension without pay, but doing this is more difficult under recent changes in precedent by the Merit Systems Protection Board because of new due process concerns. The result is an increased use of administrative leave while the security clearance issue is adjudicated.
The reaction of many human resources professionals and some Congress members is that the employee on administrative leave is getting a free vacation at taxpayer expense. The reaction of most employees on administrative leave is a tremendous feeling of discomfort and uncertainty, and a desire to know how the issues that led to the administrative leave will be resolved.
It does appear that agencies overuse the “other legitimate government interests” authorization to place and sometimes keep employees on administrative leave when it is not necessary. In a time when other employees are possibly being furloughed, agencies should closely monitor employees on administrative leave to process their personnel issues quickly.
The current “out of sight, out of mind” attitude should be replaced by one focusing on cost savings. This may mean prioritizing with the security clearance adjudication offices, but it is an area of cost savings that can be controlled more effectively. Also, the failure to control these costs might lead to unpleasant congressional oversight.
Current rules on administrative leave and their interpretation leave wide open who gets administrative leave and for how long in a misconduct situation. Officials who authorize or mandate administrative leave should take precautions to assure administrative leave for the shortest time necessary.
Agency must accommodate disability
February 18th, 2013 | Uncategorized
Being disabled is the one protected category of illegal discrimination that any of us can join on any day and without notice.
When someone becomes disabled, disability discrimination can occur in two ways. First, the agency might openly overreact to the disability and treat an employee adversely even if the disability poses no hindrance to the employee’s ability to work. The second and more common means of disability discrimination is the failure to provide a reasonable accommodation so that the disabled employee can continue to work.
Since July 2007, every federal agency has been required to have a procedure for handling requests for reasonable accommodation. These procedures require the employee and management together to determine an appropriate and reasonable accommodation for the employee. Anyone who believes he has a disability that should be accommodated should first ask for and read the agency’s procedure for accommodating disabilities. Most questions will be answered in that document.
To fully understand the agency procedure, it is also helpful to understand some of the basics necessary to receive an accommodation. First, an employee must show medical evidence that he or she is disabled. Many employees are reluctant to share medical evidence with their agencies, believing it to be private and protected by medical privacy laws. While it is true that medical information is protected, if you are asking for special consideration for a medical condition, you must submit medical evidence. The agency is required by the Privacy Act to keep your information confidential and to use it only for the purpose of deciding whether to grant an accommodation and what type of accommodation is appropriate.
The medical evidence must demonstrate that, at a minimum, the disabled employee has a physical or mental disability that interferes with a major life activity. Recent changes to disability discrimination law have greatly expanded the definition of major life activity. Examples are seeing, hearing, walking, taking care of yourself, working, concentrating and interacting with others. Major life activities also include medical issues related to major bodily functions. A complete list of major life activities can be found at 29 Code of Federal Regulations Section 1630.2(i). Whether your particular impairment interferes with a major life activity is determined by reference to the population at large.
Once you have established yourself as a disabled person, you must then prove that you are a qualified disabled employee. In other words, you must show that you can perform the essential functions of the job without harming yourself or others. An obvious example of someone who is not a qualified disabled person is someone who becomes blind and whose job requires the operation of a motor vehicle. That person cannot be accommodated because he or she would not be able to drive safely, and driving is an essential part of the job. A less obvious example is the federal air marshal who cannot fly because he has developed an inner ear problem. An accommodation might be light duty in the office, but if flying is deemed an essential part of the job, the employee might be found to be other than a qualified disabled employee.
Once the employee is both disabled and a qualified disabled employee, the agency must grant the accommodation unless it can show that to do so would create an undue hardship for the agency. For most agencies, the cost alone is not enough to show an undue hardship. Thus, an agency must purchase equipment and make modifications to accommodate disabilities. If the blind driver described above also has a law degree, the agency might be required to consider a reassignment to a vacant lawyer position because equipment is available that would allow that blind lawyer to perform the essential function of the job.
Reassignment to another job is one of the reasonable accommodations that must be considered. But it is an undue hardship to reassign an employee if a job must be created or another employee must be moved.
These are some of the basics. An understanding of these principles and an awareness of your agency’s procedure for accommodating disabilities is your best bet for receiving an accommodation that will permit you to be employed with a disability.
Q & A Session – NSPS to GS Conversion
February 15th, 2013 | Uncategorized
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 promoted from a GS-07 position to an NSPS position. Upon conversion from NSPS to GS, I was given a GS-09 position in September 2010. In October 2011, I was notified by my supervisor that I had been erroneously converted to the GS-09, and steps would be taken to revert me back to a GS-07 position. This caused me to incur a debt which has been ongoing. To date, I have not been reverted to the GS-07 and continue to carry out the same duties I have done all along on my GS-09 position. Do I have grounds to contest the downgrade? And who should I talk to?
A:
Nothing has happened yet. And, when it does, you may have a Merit Systems Protection Board appeal or Equal Employment Opportunity claim, but you do not provide information to assess the viability of those options. I don’t understand what debt you are incurring if you have not been demoted, and, if you are, you should be entitled to at least saved pay.
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 – Administrative Time?
February 15th, 2013 | Uncategorized
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 a registered dental hygienist. Civilians in my group were recently required to complete a 7-hour training. I am in direct patient care for eight hours every day and my management will not adjust my patient workload to accommodate the training. In the two months since we received notification that we had to complete the training, I have managed to find some time during training days and staff meetings, but due to website glitches was only able to get halfway through the training modules. Other civilian providers worked up to four hours over the duty day to complete with no compensation, but I cannot do that.
Now, the deadline to complete the training has passed and I believe management is punishing me by denying my TDY for a required conference because I have not completed the training. With all the computer training that is required of us, is it required for management to give us scheduled administrative time for this?
A:
It is not administrative time. It’s part of your job. You and your management should find a way for you to complete the training. If you can get off to attend a conference, there has to be a way to do other required training. Failure to complete can be used to deny other training.
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.