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Private Sector and Federal Employee Law Blog

Being a lawyer can be a thankless job, except when it isn't

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You hate trips to the dentist. You'd rather not have to see a proctologist. Who loves gathering info for the tax advisers when the deadline looms every April?

We didn't think so.

In the same way, most people would rather not have to see a lawyer, because seeing a lawyer means you've got a problem. That's why the best lawyers don't really expect a thank-you from every client at the conclusion of the case. Most people rightfully want to forget about the whole thing.

Changes coming to federal security clearance system

A new federal agency will soon take over background investigations. The National Background Investigations Bureau (NBIB) will replace the Federal Investigative Services program in the coming weeks and months. Like its predecessor, the new agency will be responsible for handling security clearance investigations and background checks - a critical function for vetting employees and contractors who will have access to sensitive government information.

Announced by the White House in early 2016, the NBIB aims to:

Gender bias among nation's top scientists at National Institutes of Health

Gender inequality is a major issue in both the public and private sectors. It's not limited to entry-level positions or blue collar work. Even in the most advanced fields, women who devote decades to their careers often face greater obstacles than men when it comes to getting ahead.

Recently, an accomplished female scientist reported experiencing discrimination and bias at the National Institutes of Health - a leading biomedical research center and part of the U.S. Department of Health. The woman, a neuro-immunologist, has numerous professional accomplishments to her name. Yet she still hasn't been successful in her efforts to secure tenure. Across the organization, only 22 percent of the tenured scientists are women. In a complaint filed with the Equal Employment Opportunity Commission, she contends that gender bias has blocked her from getting promoted.

Retaliation claims are on the rise, but not all victims speak out

Washington, D.C. workers who report their employer's illegal actions have done the ethical thing. Unfortunately, they may find that until their claim is resolved, they face an increasingly hostile work environment, leading up to unlawful retaliation, including wrongful termination.

In fact, retaliation claims in our nation are growing, and now, at 45 percent, outnumber racial discrimination complaints brought before the Equal Employment Opportunity Commission. This number doesn't include the cases of retaliation that never even reach the point of a legal filing. Objecting to unlawful actions by coworkers or employers can have a negative effect on the worker's reputation among coworkers, can result in bullying, can lead to worsened and hostile work conditions and can lead to other forms of retaliation, all illegal but sometimes unreported. Workers in such situations might just feel so burnt out by their hostile working conditions that they'd rather just quit than fight.

Can workers refuse to work in unsafe work conditions?

Some federal employees and private sector employees in Washington, D.C. find that, due to the nature of their jobs, they face workplace hazards on a daily basis. If a worker finds that he or she is subjected to unsafe work conditions, and his or her employer will not address and remedy the situation, he or she may file a complaint with the U.S. Occupational Safety and Health Administration. But, does an employee have the right to refuse to work in such situations?

An employee may have the right to refuse to work under limited circumstances. First, the worker must have asked his or her employer to eliminate the hazardous condition, and the employer must have failed to take such action. In addition, the worker's refusal to work must have been made in "good faith," meaning that the worker honestly believed that he or she was facing an imminent danger. Also, it must be the case that a reasonable person in the same situation would also believe that the hazardous condition presented a real danger of serious injury or death. Finally, there must not have been enough time to have the dangerous condition corrected through the normal channels of enforcement, such as asking for OSHA to examine the situation.

What does the law say are the elements of a First Amendment case?

If a government worker in Washington, D.C. feels that they were retaliated against for exercising their First Amendment right to free speech, that person may want to pursue legal action. There are a number of elements that must be proven in a First Amendment retaliation case.

First, the worker must show that their activity was one that is protected by the Constitution. Second, the worker must show that their employer's adverse action caused the worker to suffer damages that would have a "chilling effect," meaning that an ordinary person would not continue to pursue the activity the worker was engaged in. The worker also needs to show that the employer committed the retaliation partially due to the worker's speech.

What are a federal employee's First Amendment rights?

Our First Amendment right to free speech is one of the most highly valued rights in the United States. However, what some Washington, D.C. residents may not know is that the First Amendment of the U.S. Constitution prohibits only the government from making laws that infringe on free speech, among other rights. Private employers do not fall under the First Amendment, so private employees in general may be let go from their jobs based on what they say; although this right of employers may be restricted in other circumstances, such as by a union contract or rights afforded to whistleblowers.

However, public employees do work for the government, and therefore do have some rights against retaliation for what they say. However, this right is limited to matters of "public concern." Some examples of the types of speech that are considered by the U.S. Supreme Court to be of public concern include testifying before a state legislature, speech that is critical of government waste brought as a concerned citizen, and whether local emergency services were adequately funded, among others involving safety or discrimination.

Employees in contract disputes may need legal help

When employees in Washington, D.C. enter into an employment contract, they naturally expect that the terms of the contract will be fair. However, oftentimes employment contracts are written in a manner that favor the employer and protect the employer's interests, rather than the employee's. Therefore, contract disputes can sometimes occur either during the course of a person's employment, or if the employee is let go from his or her job.

An employment contract can cover many aspects of working for an employer, such as how much the employee will be paid, the details of any severance package that will be offered to the employee or what future work the employee can pursue. These are all important topics that could have a major effect on the employee. Therefore, before entering into an employment contract, it may help to consult with an attorney who can review the contract and explain the employee's rights and obligations under the contract. With the help of an attorney, employees may be able to negotiate a contract that protects their interests.

SEC awards employee millions from reported illegal activity

Workers in Washington, D.C. are sometimes in the position of learning that their employer is doing something illegal. They may wonder what to do with this information. Fortunately, agencies such as the U.S. Securities and Exchange Commission have programs to encourage employees to report illegal activities that their employer is committing, specifically, securities fraud.

A former executive for Monsanto Co. received a substantial award of $22,437,800 after telling the SEC about his employer's unlawful accounting practices with regard to one of its popular products, Roundup. The award was part of the SEC's whistleblower program, and was part of an $80 million settlement between the agency and the company earlier this year.

Can a wrongful discharge claim be based on an implied contract?

As discussed on this blog in the past, most employment in the nation is "at-will." This means that an employer does not need any particular reason to fire a worker -- he or she could do so on a whim. That, however, doesn't mean the employer can break the law. In fact, one big exception to the at-will doctrine is wrongful discharge. For workers in Washington, D.C. who do not have an express employment contract, common law has established that a wrongful discharge claim may exist under an implied contract.

What is an implied contract? An implied contract may exist if the employer made certain statements or in some other way issued some sort of representation of continued employment. These could be oral statements, or written statements found in employee handbooks or written workplace policies.

I have been a litigator for close to 20 years and Alan is most certainly one of the best attorneys I have ever come across.
Mr. Lescht is an excellent Trial Lawyer, He is calm, cool, and collected.
I also appreciated Alan's frankness and his ability to identify what is important and what is not when going through a case like this.
I would highly recommend Alan to anyone who needs an exceptional and incredibly talented Employment Attorney.
Mr. Lescht is an extraordinarily responsive attorney, returning my emails and phone calls within minutes. I would absolutely recommend him to anyone who thinks they may need a lawyer. Definitely incredible work.
I was impressed with his knowledge and professionalism, and I will always be grateful for his guidance.

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