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 gives employees more protections. Agency can’t take 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.