Ask The Lawyer

By Debra Roth

Q & A Session – Career Ladder Promotion

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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 got my first grade level promotion in October 2011, and the next promotion was due in October 2012. I checked with HR and they mentioned that they did not receive any paperwork from my supervisor. In October, I had my performance evaluation and it was fully satisfactory. When I asked my supervisor about my grade increase, she mentioned that it’s not automatic. Is this true?

A:

A career ladder promotion is not automatic. You are not entitled to notice or reasons. If you believe illegal discrimination or a whistleblower reprisal is the cause of your denial of a promotion, you may file a complaint. 

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.

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Q & A Session – Temporary Promotion

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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 received a temporary promotion last year. After 120 days, I was returned to my previous salary. As I am still acting in the supervisory position, am I eligible for another temporary promotion on a year after the original temporary promotion?

A:

You are eligible for a longer temporary promotion, but only if you compete for it. 

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.

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Q & A Session – Position Description Update or Re-advertisement?

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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:

At what point would a position description update or change require the position to be re-advertised?

A:

A position description can be rewritten to reflect an accretion of duties without a change in the position’s incumbent so long as it was not a planned management action. If it is a planned management action and the job is to be upgraded, it would have to be advertised. 

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.

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Q & A Session – Promotion after a Desk Audit

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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:

After a desk audit is completed, what are the next steps for a promotion? A desk audit was performed on my position. It was rated a GS-11 instead of the current GS-09 that I am occupying. My management is telling me there isn’t anything they can do. They stated that they do not have a policy in place to promote me to GS-11. My management wants me to sign a Memorandum stating that I would be temporarily promoted to GS-11 and, after 120 days, I would resume my current position and they would rewrite my PD to a GS-09 level. This does not seem fair to me since I have already been working a GS-11 level job for 4 years.

A:

It sounds like your agency may be playing games with you. You may try an open desk audit and see if this forces their hand. 

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.

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Q & A Session – Structure of Promotion and Appointments

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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 currently employed by a federal agency. I signed a document affirming that this was a temporary position not to exceed three years in duration, with the agency retaining the option to extend two one-year extensions. The agency could rescind the position and I would be transferred back to my prior position at a lower level. I have been employed in this position since late 2008.

In January 2012 we were told that the temporary grades were being rescinded. In August 2012 we were informed that, after further review, the temporary grades would not be rescinded. We were told that if we took the promotional exam to become a supervisor, we could be picked up again for our current positions.

If I have been a temporary GS-14 for the last four years would I not be on the alternate staffing list for each promotional list that is prepared if I submit an application?

A:

Not necessarily is the answer to your question. The agency has much discretion on how it structures promotions or appointments so long as it follows merit principles.

 

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.

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Q & A Session – Veterans Preference for Promotion

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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 a current permanent federal employee under FERS, and I am also a disabled veteran. I have applied for a higher position within my current department. Am I still eligible to receive a 10 point veterans preference for the new position?

A:

Veterans preference applies to initial appointment and reductions-in-force. It does not apply to internal promotions. Veterans preference may apply to a prevent a non-veteran from being hired ahead of you for a position for which you are qualified if the vacancy announcement and hiring authority used seeks outside candidates.

 

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.

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Q & A Session – Denial of Promotion

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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 a GS-9 and I was denied a promotion to a GS-11. However, how much of the GS-11 position description do I need to be performing to demonstrate I am working at the next level?

A:

To receive a career ladder promotion, you must demonstrate the ability to perform at the next higher level. If you are believe you are the victim of illegal discrimination, you of course may file an EEO complaint.

 

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.

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Q & A Session – NSPS to GS Conversion Promotion Opportunities

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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:

Prior to the conversion to NSPS, I was a GS-12 and during my time as an NSPS employee I was grade YC-02. However, when I was converted back to GS I was returned to my prior GS-12 grade but my pay had reached GS-14, step 4. What grades am I eligible to apply for?

A:

The answer to this question depends on what the vacancy announcement requires and the level of experience you have had. If you have only had experience at the GS-12 level, and the vacancy announcement for a GS-13 requires GS-12 experience, you may apply. If a GS-14 requires GS-13 experience, you may not apply.

 

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.

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Q & A Session – Promotion While Under an EEO 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:

Can a person be promoted while under an EEO investigation? I was under the impression that an individual named in a formal complaint cannot be promoted until the final decision is released.

A:

There is a presumption of innocence that applies in law and has become a part of our general culture. Just because an EEO complaint has been filed, that does not mean  discrimination has occurred. Also, in any given year only about 3 percent of filed EEO complaints result in a finding of discrimination. This is another good reason why there should not be a rule banning promotions of the accused of discrimination just because an EEO complaint has been field. On the other hand, an agency has discretion to look behind the allegations in an EEO complaint and to bring appropriate disciplinary or performance action against an offending supervisor.

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.

 

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Q & A Session – Denial of Career Ladder Promotion

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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 been working for the government for over 15 years and was looking to be promoted this year. I was told I qualify for a GS-11 position and have had all good performance ratings, with no documentation of any issues. However, I was told I would not get a promotion, since I did not work on a project. Can this be a reason to deny my promotion?

A:

Career ladder promotions have the reputation and expectation by many employees that they are automatic. The actual truth is that a career ladder promotion occurs when the employee demonstrates the ability to perform at the next higher level. If denial of a career ladder promotion is for an illegal reason, such as discrimination or whistleblower reprisal, there are processes that can be used to challenge the denial, but the unpromoted employee has the burden of proving the illegal motivation.

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.

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