Hostile work environment not uncommon, according to recent survey

woman in hostile work environment

Rand Corp., Harvard Med, and UCLA recently surveyed 3,066 American workers about their jobs. The results were shocking:

  • Nearly 20% said they face a threatening or hostile work environment
  • Almost 55% reported “unpleasant and potentially hazardous conditions” at work
  • Approximately 75% said they spend at least one fourth of their time on the job doing “intense or repetitive physical labor”
  • 78% responded that their employers do not permit telework
  • Only 38% felt that they had opportunities for advancement in their jobs, a prospect that becomes less likely as the worker gets older

What is a hostile work environment?

Although the working conditions survey respondents reported sound downright cold, they may not be illegal. In employment cases, the law recognizes two types of harassment:

  • Harassment that ends in a tangible employment action such as a demotion or termination; or
  • Harassment that creates a hostile work environment.

To make a claim for hostile work environment, you must prove:

  • That you were subjected to unwelcome conduct
  • That was severe and/or pervasive
  • And based on your membership in a protected group.

Some examples of protected groups include gender, age, race, national origin, and disability. One way to prove that harassment is based on your protected characteristic is to show that your employer treated employees outside of your protected group better than you. For example, a female employee may be able to prove hostile work environment if she can demonstrate that male employees have better working conditions or benefits.

What should I do if I work in a hostile work environment?

If you have concerns about a hostile work environment, contact Alan Lescht and Associates today if you have concerns about a hostile work environment. Call us at (202) 463-6036, or email us. We offer strategic and results-driven legal services to clients in DC, Maryland, and northern Virginia, and to federal government employees around the world.

A sample of our hostile work environment cases

Faraci v. CACI: We represented a government contractor who worked overseas. The arbitrator ruled in our client’s favor on sexual harassment and retaliation claims and, as a result, awarded compensatory damages and attorney’s fees.

Figueroa v. Savanar: We won a jury trial in a sexual harassment case and obtained a $200,000 verdict.

Chadwick v. District of Columbia: We won a jury trial and obtained a $400,000 verdict on behalf of a former employee of the District of Columbia’s Oak Hill Youth Center, who alleged that she was sexually harassed by her former supervisors.

Federal employees may be subject to discipline for off-duty misconduct

dismiss-her-from-employment-69391340

Federal agencies may discipline employees for off-duty misconduct in certain circumstances.  However, the agency must establish a “nexus,” or connection, between off-duty actions and the efficiency of the service.  In other words, the agency must prove at least one of the following:

  • The misconduct is so egregious that a connection with the efficiency of the agency is presumed;
  • The misconduct adversely affects the employee’s job performance or the agency’s trust and confidence in the employee’s ability to perform; or
  • The misconduct adversely affected the agency’s mission.

Is the off-duty misconduct egregious?

Whether misconduct is “egregious” is fact-specific.  Just because the misconduct is illegal, does not necessarily mean it is egregious for disciplinary purposes.  However, violent crimes against persons and sexual abuse of minors are generally egregious enough to establish nexus.

Does the misconduct negatively impact job performance or the agency’s trust and confidence in the employee’s performance?

In proposing discipline, the agency will argue that it no longer has confidence in the employee’s performance.  Employees who engaged in misconduct related to their work duties face an uphill battle.  For example, an off-duty DUI will be difficult to overcome if the employee’s work duties including operating a motor vehicle.

However, employees can provide evidence to show that their misconduct did not affect their performance.  It is helpful if the employee received a positive performance rating or a grade increase after the misconduct occurred.  It is good evidence if the agency knew about the off-duty misconduct but permitted the employee to continue performing his or her duties — instead of being reassigned or put on leave.

Did the misconduct adversely affect the agency’s mission?

Many different factors may determine whether off-duty actions adversely affect the agency’s mission.  Off-duty misconduct may adversely affect the agency’s mission if it occurred at a work facility or work-related event.  The same is true for off-duty misconduct involving other federal employees or supervisors.  Negative publicity given to the off-duty misconduct may also adversely affect the agency’s mission.

Contact Alan Lescht and Associates today if you questions about being disciplined for off-duty misconduct.  Call us at (202) 463-6036, or email us. We offer strategic and results-driven legal services to federal government employees around the world.

OPM changes rules for use of administrative leave

The Office of Personnel Management has proposed new rules on administrative leave. The proposed rules create strict guidelines for approving administrative leave. They also require second-level review by an agency official to “help prevent inappropriate uses and ensure that administrative leave is used sparingly.” Final rules are set to be issued by September 19, 2017.

The proposed rules require agencies to keep records and submit data reports that identify each instance of administrative leave, investigatory leave, notice leave, and weather and safety leave. The rules also prohibit any employee from being on administrative leave for more than 10 days in a calendar year.

Specific justification required for administrative leave

If finalized, agencies would have to justify all use of administrative leave by showing one of the following:

  • The employee’s absence directly relates to the agency’s mission. For example, an agency could grant administrative leave for an employee to attend a professional meeting related to the agency’s mission.
  • The employee is absent from work in order to attend an official agency-sponsored activity, such as a blood drive at an agency facility.
  • The employee’s absence would be in the best interest of the agency or the government as a whole. Examples include allowing employees to participate in employee wellness events, such as flu vaccines, and ensuring employees have the opportunity to vote.

Administrative leave prohibited for certain reasons

According to the proposed rules, agencies could not grant administrative leave to:

  • Mark the memory of a deceased federal official;
  • Permit an employee to participate in an event for his/her personal benefit or the benefit of an outside organization;
  • Award an employee for job performance; or
  • Allow an employee to participate in volunteer work that the agency does not officially sponsor.

Importantly, the proposed rules state that investigative and notice leave are allowed only if an agency official determines that the employee’s presence at work could pose a threat to the employee or others, result in loss or damage to government property, result in destruction of evidence relevant to an investigation, or otherwise jeopardize the legitimacy of government interests. Before using these options, agencies must consider alternatives to avoid or minimize the use of paid leave, such as changing the employee’s duties or work location.

Call Alan Lescht and Associates, P.C., at (202) 463-6036, or email us, if you questions about federal employee administrative leave. We offer strategic and results-driven legal services to federal government employees around the world.

Navigating the EEO process for congressional employees

The Capitol

Federal government employees have to follow a specific procedure to file an EEO complaint of discrimination or retaliation.  The EEO process for employees within the legislative branch of government is unique from the process for other government employees.

Where do I file my EEO complaint?   

The Office of Compliance (OOC) is charged with processing EEO complaints for most legislative employees, including those employed by:

  • S. House of Representatives
  • S. Senate
  • S. Capitol Police
  • Congressional Budget Office
  • Office of the Architect of the Capitol
  • Office of the Attending Physician
  • Office of Compliance and
  • Office of Congressional Accessibility Services.[1]

What do I do first?

You must file a request for counseling with OOC within 180 days of the act of discrimination, retaliation, or harassment.  Identifying your claims is critical because only claims specifically listed in the request for counseling may proceed through the EEO process.

The counseling period lasts for 30 days.

What happens after counseling?

After the counseling period, you have 15 days to file a request for mediation with the OOC.   Mediation is a mandatory settlement conference between you and your employer.  During mediation, a mediator will attempt to resolve the complaint.

What do I do if my case doesn’t settle at mediation?  

If you do not reach a settlement at mediation, you may file a lawsuit in federal district court.  You must file a lawsuit no earlier than 30-days after the end of mediation, but no later than 90-days after mediation concludes.  Alternatively, you may file a request for a hearing before a hearing officer at the OOC.

Should I request a hearing or file a lawsuit?

This is an important decision that depends on a variety of factors including the facts of your case, the defense arguments raised at mediation, and general case strategy.  Making this decision requires the expertise of a lawyer who has argued before both hearing officers at the OOC and federal district court judges.

The legislative branch process is very technical and separate from how EEO complaints are processed in the executive branch.  Contact Alan Lescht and Associates today if you are a legislative employee who has been subjected to discrimination, harassment, or retaliation.

 

[1] Library of Congress (LOC) employees follow a different process.

Employees have rights when facing proposed discipline

Federal employees have rights when they receive a notice of proposed discipline, such as proposed removal, proposed demotion, or proposed suspension of more than 14 days.

Except in certain circumstances, most federal employees are entitled to certain protections before they can be removed, demoted, or suspended for more than 14 days. Most federal workers have the following rights when they are facing one of these disciplinary actions:  (1) the right to written notice; (2) the right to review the evidence; (3) the right to representation; and (4) the right to respond.  5 U.S.C. § 7513; 5 C.F.R. § 752.404.

The right to written notice of proposed discipline

Before removing, demoting, or suspending an employee for more than 14 days, the agency must give the employee a written notice of the proposed discipline.  The notice of proposed discipline must describe the allegations against the employee (i.e., what type of misconduct or performance issue the employee is accused of) and what penalty the agency proposes to impose.

The right to review the evidence

The employee has the right to review any documents and any other evidence the agency relied upon in proposing the disciplinary action.  This evidence is frequently called “the documents relied upon” or “the record.”  Sometimes the proposing official or HR will automatically give the employee the documents relied upon.  However, the employee should ask for the documents and ask the agency to confirm that he/she received all of the documents relied upon.

The right to representation

The notice of proposed discipline should also state that the employee has the right to representation.  This means that the employee may enlist or retain a representative to aid him/her in responding to the notice of proposed discipline.  The representative may be a union representative, a private attorney, or any other person.  The employee should notify the agency that he/she has a representative connected to the proposed discipline.

The right to respond to the notice of proposed discipline

employee discipline

An employee has the right to respond in writing and orally to a notice of proposed removal, demotion, or suspension for more than 14 days.  The agency must give the employee a “reasonable” amount of time (i.e., not less than 7 days) to respond.  The notice of proposed discipline should state when the employee’s response is due.  An employee may ask the deciding official for an extension of time to submit his/her response.  The employee may submit his/her own evidence, including but not limited to statements or declarations from witnesses, with the written or oral response.

Contact Alan Lescht and Associates, P.C., today if you are a federal employee who received a notice of proposed removal, proposed demotion, or proposed suspension for more than 14 days.  We offer strategic and results-driven legal services to federal government employees around the world.

Age discrimination: A brief guide

age discrimination

The Age Discrimination in Employment Act, commonly referred to as the ADEA, prohibits employers from discriminating against employees who are 40 years of age or older. Complaints of age discrimination are extremely prevalent in the federal government. One third of federal employee discrimination complaints include age-based allegations, making age the second most common basis in formal EEO complaints.

What is age discrimination?

Age discrimination can take many forms, including the following:

  • Marine V., et al. v. Social Security Administration:  The Social Security Administration  used a written examination to screen out internal candidates and recruit external hires. The Equal Employment Opportunity Commission (EEOC) found that the exam helped the agency weed out older applicants. Consequently, the EEOC ordered the agency to give the aggrieved employees their jobs.
  • Cook v. Department of Labor:  A 59-year-old human resources employee was subjected to age discrimination when her supervisor asked about her retirement plan, removed her supervisory duties, and made age-based comments. The supervisor’s comments raised an inference of discrimination. For example, the supervisor said, “younger people are coming in and out and they are better with computers.” The EEOC awarded the complainant compensatory damages and attorney’s fees.
  • Kruecke v. Department of Veterans Affairs:  The Department of Veterans Affairs fired a 67 year-old nurse for bad performance. However, the agency did not fire a younger employee who had performance issues. The administrative judge (AJ) found that the firing was age discrimination. The EEOC affirmed the AJ’s findings and ordered the agency to pay back pay and train its responsible officials.

How do I file an age discrimination complaint?

Employees may file complaints through the administrative process (Equal Employment Opportunity Commission or state and local human rights offices); however, this is not necessary. Employees who feel they have been a target of age discrimination may file a complaint directly in federal district court.

Contact Alan Lescht and Associates today if you feel that your employer made employment decisions based on your age. We offer strategic and results-driven legal services to federal government employees around the world. Call 202-463-6036 to schedule a consultation.

Whistleblower protections under the Follow the Rules Act

On June 14, 2017, President Trump signed into law the Follow the Rules Act, an important extension of the Whistleblower Protection Act (WPA).

Background of the Follow the Rules Act

The WPA protects federal government employees from retaliation for complaining about the government’s dishonest or illegal activities. In 2016, the U.S. Court of Appeals for the Federal Circuit made a decision interpreting the WPA in, Rainey v. Merit Systems Protection Board. The court held that the WPA protects employees who refuse to obey orders that would require violation of statutes. However, the WPA does not protect employees who refuse to obey orders that would require violation of rules or regulations.

Additional whistleblower protections

The Follow the Rules Act overturns the Rainey decision and broadens protections for employees. In other words, it prohibits agencies from taking personnel actions against employees who refuse orders that would require violations of laws, rules, or regulations.

In introducing the bill last year, Congressman Sean Duffy (R-WI) gave the following example:

Congress directed the President to promulgate rules and regulations regarding sanctions against North Korea. Without the Follow the Rules Act, employees who refused to follow orders to violate North Korea sanctions would have no whistleblower protections.

Representative Gerry Connolly (D-VA) said, “[W]e need to do all we can to ensure that federal employees are allowed to perform their jobs free from political pressure to violate laws, rules, and regulations.”

If your employer took an adverse personnel action against you for complaining about illegal or improper activity, contact Alan Lescht and Associates today. We offer results-driven legal services to federal employees around the world.

Employee discipline under the new VA reform bill

On June 13, 2017, the House joined the Senate in approving a VA reform bill aimed at making it easier to discipline employees of the Department of Veterans Affairs.  As President Trump has already stated he will sign the bill as soon as it reaches his desk, it appears certain that substantial changes are going to be made to the VA disciplinary process.

A new procedure for employee discipline

First, the S. 1094 will create a new framework for the discipline of VA employees, speeding up the process significantly.  It will require the VA to give notice of proposed discipline, accept a response, and make a decision on the proposal within 15 days.  Non SES-employees will still have a right to appeal to the Merit System Protection Board, but must file the appeal within 10 days of the adverse action, as opposed to the current 30 day deadline.  Furthermore, the Board will be required to issue a decision on the case within 180 days.

While non-SES employees would still have the right to appeal to the Board, S. 1094 strips away  SES-employees right to appeal to the Board.  SES employees will need to appeal their discipline through an internal appeals process that will take no more than 21 days.  However, should the internal appeals decision still be adverse, the SES-employee may appeal the Agency’s decision to a U.S. District Court.

A lower standard of proof for discipline

Second, and perhaps most controversially, S.1094 establishes a new evidentiary standard used by the Board in reviewing issues of discipline.  The Board currently reviews removals and other adverse actions on a “preponderance of the evidence” standard.  This means the Agency must prove it is more likely than not that the employee engaged in the charged misconduct.  The bill would change the standard to substantial evidence, which only requires the VA to show that there is relevant evidence to support the discipline.  This will make it easier for the VA to discipline employees and harder to win on appeal before the Board.

If you are a VA employee, and facing disciplinary action, contact Alan Lescht and Associates today.  We will help you navigate the federal disciplinary process.  Call us at (202) 462-6036 or email us to schedule a consultation with an experienced federal employment attorney.

Alexandria employee sues city for violating FMLA

Last week, the U.S. Court of Appeals for the Eastern District reinstated a former employee’s case against the City of Alexandria for violations of the Family and Medical Leave Act (FMLA). Quintana v. City of Alexandria, No. 16-1630 (4th Cir. filed June 6, 2017).

City of Alexandria fired employee for taking FMLA leave

Monica Quintana was hired by the City of Alexandria in 2011. After one year, the City outsourced its payroll and other duties to Randstad USA, a staffing agency. However, Quintana’s job functions remained the same, and she continued to report to a supervisor who was a City employee.

On or about January 9, 2014, the City granted Quintana’s request for FMLA leave to care for her comatose husband. Quintana told Randstad that she was approved to take three months of FMLA leave. However, on January 17, 2014, the City terminated Quintana’s employment for failing to report to work without notice.

Employee filed lawsuit against City of Alexandria for denying FMLA leave

Quintana filed a lawsuit in the U.S. District Court for the Eastern District of Virginia, naming both Randstad and the City of Alexandria as defendants. In response, the City argued that it was not Quintana’s primary employer, and thus, was not liable for denying Quintana FMLA leave or for retaliating against her for requesting leave. The court accepted this argument and, as a result, dismissed Quintana’s claims against the City.

On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed the decision. The Fourth Circuit ruled that Quintana alleged enough facts to show that the City of Alexandria and Randstad were her employers. Consequently, the court reinstated Quintana’s lawsuit.

If you believe your employer interfered with your rights to take FMLA leave or retaliated against you for requesting FMLA leave, contact us today. Alan Lescht and Associates, offers strategic, results-driven legal services to clients in Washington, D.C., Maryland, and northern Virginia, and to federal employees around the world.