When can you sue your employer for defamation?

When you’re applying for new jobs, it’s crucial that you have good references to vouch for your past performance. But what if you didn’t get along well with your boss, and they say something bad about you? It can be tricky to know how and when to bring a defamation lawsuit.  Private employees may be able to bring a defamation lawsuit against a past employer who shares false information, but government employees have more limited legal options.

What is defamation?

Essentially, defamation is when a person tells a harmful lie about you to someone else.  The statement must be (1) false, (2) harmful, and (3) made to a third party to be defamatory. It is not defamatory for an employer to share truthful negative information about you, and a plaintiff bringing a defamation lawsuit has the burden of proving that the statement was false. An employer is also entitled to share his or her opinion about you; an opinion is not defamatory because it is not provably true or false.

While the basics of defamation are the same across jurisdictions, there are also some nuances to bringing a defamation lawsuit in D.C., Maryland, and Virginia.

Defamation in Virginia:

Virginia defamation law is favorable to employees in that statements about employment matters are generally presumed harmful. Virginia common law considers some statements so bad that they are “defamatory per se,” including:

  1. Accusing someone of a criminal offense involving moral turpitude (i.e. lying, cheating, stealing);
  2. Implying someone is infected with some contagious disease that would exclude them from society;
  3. Implying someone is unfit to perform the duties of an office or employment, or lacks integrity in performing such duties; or
  4. Prejudicing someone in his or her profession or trade.

The last two kinds of statements, implying someone is unfit for employment or prejudicing someone in his or her profession, are particularly helpful for employees seeking to bring a defamation suit in Virginia. In such cases, proving damages is unnecessary–the injury is already presumed.

Virginia law recognizes that a qualified privilege protects an employer’s communications with other interested parties (such as a potential employer). This privilege can be lost, however, if your former employer acted maliciously or with reckless disregard.

Defamation in Maryland:

Maryland also recognizes that communications arising out of employment relationships are protected by a qualified privilege. An employer acting in good faith is immune from liability for disclosing information about an employee’s termination or performance if requested by a prospective employer, the former employee, or by a government/regulatory authority. The employer is presumed to act in good faith but can be liable for defamation if you show clear and convincing evidence of actual malice or intentional/reckless disregard of the truth.

Defamation in the District of Columbia:

As in Maryland, a D.C. employer may not be liable for defamation if the statement is protected by the common interest privilege (i.e. made to a third party as part of an employer’s work duties or functions).

In addition to defamation, D.C. law provides for a similar cause of action called invasion of privacy or false light. Invasion of privacy/false light applies to situations where a person publishes false information that puts you in a false light. To bring a successful invasion of privacy/false light claim, you must prove that the publisher knew or acted in reckless disregard of the matter’s falsity. Here the statement need not be false to be actionable.

A note on defamation for government employees:

Government employees have more limited legal options when it comes to defamation. The government is protected by sovereign immunity, which means that it can’t be sued except for certain kinds of lawsuits. Sovereign immunity applies to both the state and federal levels of government.

There are other legal options, aside from a lawsuit, for a federal employee to pursue a claim for defamatory conduct. You can file a grievance within the agency, a claim with the Office of Special Counsel, or a complaint with the Office of the Inspector General. Additionally, the statements could be included in an EEO compliant if you were targeted due to a protected characteristic such as race, gender, religion, national origin, age, or disability.

Alan Lescht and Associates can help with your defamation case:

Our firm has attorneys who are experienced with workplace defamation in both public and private sectors. For example, in Eby v. DHHS, we won an appeal before the EEOC Office of Federal Operations finding the agency breached a settlement agreement by failing to provide a neutral reference. If you believe you have a workplace defamation claim, give us a call today at (202) 463-6036, email us, or visit our website.

IN THE NEWS: CIA Whistleblower Retaliation Case

Shareholder Susan Kruger quoted on The Daily Beast! Our client, James S. Pars, is a CIA employee who was previously employed in a conflict zone as Deputy Chief of Base.  He alleges that he was sent home short of tour and subjected to additional acts of reprisal because he made a series of lawfully protected disclosures to authorized officials concerning the behavior of the Chief of Base.  Our client alleges that the Chief of Base behaved inappropriately, mismanaged personnel and resources and endangered the lives of personnel by insisting that they travel in areas of indirect fire attack when not operationally necessary.  We brought a lawsuit against the CIA alleging that the CIA failed to comply with a Presidential Policy Directive whose purpose is to protect whistleblowers in the Intelligence Community.

Mr. Pars alleges that the CIA violated the Presidential Policy Directive because it retaliated against him and then when he reported the retaliation to the CIA Inspector General’s Office, the CIA delayed its investigation of the matter and still has not issued a final written disposition which would allow our client to obtain further review by the Inspector General of the Intelligence Community.  A recent article in The Daily Beast discusses our client’s lawsuit as well as a report which uncovered multiple whistleblower reprisal issues within the Intelligence Community. Read the full article here.

If you have questions about federal whistleblower protections or retaliation, contact Alan Lescht and Associates today.  Call us at (202) 463-6036, or email us. We offer strategic and results-driven legal services to federal government employees around the world.

January 2018 Victories at Alan Lescht & Associates!

In spite of the government shut-down this month, our team has been hard at work.

Most recently, we helped a federal employee mitigate a proposed removal to a 14-day suspension. Our client was a high-level supervisory official at the Air Force. The Agency launched an investigation after two subordinate employees filed complaints against our client for creating a hostile and abusive work environment. Our client was the employees’ supervisor, and they filed complaints because they were unhappy about being put on a performance improvement plan. At the conclusion of the investigation, the Agency compiled a Report of Investigation (ROI) with dozens of statements and documents supporting the hostile work environment accusations. Because the Agency found there was evidence to support the allegations, it issued a proposed removal against our client.

We responded to the Agency’s proposed removal by arguing that the investigation was biased and that, even if true, the accusations did not give rise to a hostile work environment claim.  We also obtained over twenty witness statements from surrounding employees to refute the harassment allegations. Many of these witnesses were overlooked or not contacted during the Agency’s investigation. Ultimately, the deciding official mitigated the removal to a 14-day suspension, and our client got to keep her current job.

Another matter that we successfully resolved in January 2018 involved a high-profile federal employee that had been placed on a lengthy period of administrative leave and indirectly accused of wrongdoing through the press.  We filed suit to determine who leaked the inaccurate information and represented the client in two interviews with agency attorneys as part of an investigation.

Through the course of our representation we made it clear to the agency that we would vigorously oppose any adverse actions by the agency and publicly pursue causes of action for any leaks or defamatory statements.  We were able to secure a resolution that permitted our client to return to work on a special assignment without a loss of pay or benefits.  We also secured full repayment of the client’s attorneys’ fees.

Questions? Call us today at (202) 463-6036, email us, or visit our website. We assist federal employees responding to proposed discipline, appealing discipline to the MSPB, asserting discrimination claims before the EEOC, pursuing grievances, challenging clearance revocations, and appealing denial of within-grade increases.

Winning Harassment Cases at Congress’s Office of Compliance

In the past few months, the national conversation about sexual harassment that began in Hollywood shifted focus to Capitol Hill. Congress has its own Office of Compliance (OOC) that is responsible for reviewing discrimination and harassment complaints of legislative employees. The OOC, however, has a reputation for being unfavorable to employees and has even been referred to as “the place where complaints go to die.”

In spite of the OOC’s reputation, Rani Rolston, a shareholder at our firm, has won several cases on behalf of legislative employees before the OOC that went to a hearing before administrative hearing officers. We sat down with Rani to discuss her experiences advocating for Congressional employees before the OOC.

What were your cases about?

Most recently, I represented an employee of Nigerian descent who was singled out because of his accent and complained about discrimination.  The employee was eventually reassigned from a position working with people to one working only with software. They maintained that his position was redundant and he performed poorly, and denied that his accent had anything to do with his reassignment. The hearing officer found in favor of my client and his employer appealed.  The initial decision was affirmed on appeal finding national origin discrimination and awarded our client $30,000 in compensatory damages, attorney’s fees and costs.

In another case, I represented an African American employee who was subjected to a hostile work environment based on his race.  During several happy hours, coworkers referred to our client as ignorant and uneducated and ridiculed his speech and writing. The hearing officer found that this conduct was severe and pervasive enough to alter the conditions of his employment and undermine his authority as a supervisor, and awarded our client $50,000 in compensatory damages, attorney’s fees and costs.  This decision was also appealed by the employer and the initial decision affirmed on appeal.

I handled a third case that involved disability discrimination. Our client was a Capitol tour guide and was responsible for showing tourists around the building. She injured her foot and requested to be reasonably accommodated during the work day which was denied.  The hearing officer found that the denial was improper and our client was awarded $25,000 in compensatory damages, attorney’s fees and costs.

Who can file a complaint with the OOC?

The OOC oversees claims from about 30,000 legislative employees, including Congressional staff, the Office of the Architect of the Capital, the Capitol police, the Office of Congressional Accessibility Services, and the Congressional Budget Office, among others. Such employees who wish to file a discrimination or harassment claim must go through the OOC’s mandatory, multi-step dispute resolution process.

What is the OOC process like?

The first step is to file a written request for counseling within 180 days of the alleged violation. Formal counseling normally lasts about 30 days. An OOC-appointed counselor will discuss the alleged violation with the employee and explain the possible legal consequences.

The formal counseling period is followed by mediation, which must be requested in writing within 15 days of receiving notification of the completion of counseling. The mediator will then work with both parties to try to resolve the matter.

If the claim is not resolved through mediation, the employee can proceed with an administrative hearing or file a lawsuit in Federal district court. Within 90 days, an employee can file either an administrative complaint or a federal lawsuit, but not both.

What’s the difference between an administrative hearing and a Federal lawsuit?

An administrative hearing is held before a hearing officer assigned by the OOC.  After mediation, the employee must file a formal written complaint with the OOC. The employing office has 15 days to respond to the complaint, and a hearing office will be appointed to decide the matter. The hearing officer may require the parties to exchange information and may issue subpoenas as needed. A hearing officer will usually hold a hearing within 60 days of filing a formal written complaint, and will issue a decision within 90 days of the hearing’s conclusion.

On the other hand, a Federal lawsuit would proceed under the normal rules of federal court. A Federal lawsuit in the U.S. District Court for the District of Columbia can take much longer and can be more costly than an administrative complaint.

What’s the process for appeals?

An employee can request the OOC Board of Directors review the hearing officer’s decision on an administrative complaint within 30 days of the decision. The Board of Directors will hear both sides and issue a written decision, which could then be appealed to the U.S. Court of Appeals for the Federal Circuit.

Have you settled any other cases before the OOC?

Yes, I had a disability case before the OOC that settled on the morning of the first day of the hearing. The OOC has reported that it paid out over $17 million for 264 settlements over the past 20 years.

Questions?

If you are a federal employee who has experienced workplace harassment, contact Alan Lescht and Associates today. Call us at (202) 463-6036, email us, or visit our website. We offer strategic and results-driven legal services to federal government employees around the world.

COBRA: Do I have the right to continued health insurance?

heart and stethoscope

COBRA is a federal law that gives some employees the right to temporarily continue their group health insurance despite an event that would usually end coverage. COBRA sets rules for when and how long certain employers must offer employees and their families continuation coverage.

What is COBRA?

In general, COBRA applies to private employers with at least 20 employees and to state and local government employers. It does not apply to the federal government or church employers. Many states also have their own COBRA laws that give similar rights to employees who work for private employers with fewer than 20 employees.

Under COBRA, a qualified beneficiary may elect continuation coverage after a qualifying event. A “qualified beneficiary” is an individual covered by the group health plan. Qualified beneficiaries may include employees, their current or former spouses, and their dependent children. A “qualifying event” is a change that causes loss of coverage. These events may include termination of employment, reduction in hours, death, divorce, separation, Medicare eligibility, and ceasing to be a dependent child under the plan’s terms.

Electing continuation coverage means that you will continue to receive the same health care benefits for a certain period of time. However, you employer will no longer be responsible for paying for your health care coverage. This means your monthly premium costs will increase significantly.

What are my rights?

You employer should provide you with a Summary Plan Description (SDP) that provides important information about the health plan, your rights, and how the plan works after you enroll. Your employer should also provide a Summary of Material Modifications (SMM) if there are any changes to the plan. If you don’t have a copy of your plan documents, submit a written request to your employer. Your employer must provide the documents within 30 days.

The duration of COBRA continuation coverage depends on the type of qualifying event. For termination of employment or reduction in hours, qualified beneficiaries are entitled to 18 months of continuation coverage. Qualified beneficiaries may elect up to 36 months of continuation coverage after other qualifying events.

What does COBRA require my employer to do?

Employers must notify the group health plan within 30 days of a qualifying event. Within 14 days of notifying the health plan, your employer must provide you with an election notice about your rights under COBRA so that you can make an informed decision about whether to continue your coverage. Employers who fails to provide the election notice on time may face a penalty of up to $110/day. They may also be required to reimburse qualified beneficiaries for medical expenses incurred as a result of the failure to notify.

What does COBRA require me to do?

You must timely notify your group health plan if you go through a divorce or legal separation, or if your child loses dependent status under the plan. Most plans require employees to provide notification of these qualifying events within 60 days. However, check your plan to see if your deadline is different. Your plan’s SDP and general notice should explain how to notify the plan of a qualifying event.

If you are a qualified beneficiary, you must have at least 60 days to decide whether to elect continuation coverage. Any or all qualified beneficiaries may elect continuation coverage. For example, your spouse may elect continuation coverage even if you do not. Even if you initlly waive coverage, you may change your mind at any time during the 60-day election period.

You may be required to make your first premium payment within 45 days or your election. You may lose your COBRA rights if you fail to pay on time.

Do you have questions about your rights under COBRA?

Do you have questions about your rights under COBRA? Alan Lescht and Associates has experienced attorneys who can help you navigate the COBRA process. Call us today at (202) 463-6036, email us, or visit our website.

Federal employees to be informed of appeal rights when adverse action is proposed

By law, federal employees are afforded protections in their employment well beyond those ordinarily held by those in the private sector. One of the most important protections under Title V of the U.S. Code is the right to advance notice when the federal government intends to take an adverse action against one if its employees—essentially, when an employee might be suspended, demoted, furloughed, or terminated.

Why is advance notice important?

Advance notice is significant in that it sets the stage for how an employee will proceed with many of the remaining rights, including response to the allegations, representation, and, potentially, appeal. Until recently, federal employees facing a potential adverse action under Chapter 75 were entitled to, in most cases, advance notice in writing and that the notice state “the specific reasons for the proposed action.”

What changed?

On December 12, 2017, the president signed into law the National Defense Authorization Act for Fiscal Year 2018 (“the Act”), which includes a provision requiring more detailed information be included. Specifically, the Act requires that proposed adverse action notices under Chapter 75 provide information regarding an employee’s right to appeal the final decision, where the employee may file the appeal, and whether the forum in which the employee chooses to file an appeal will impact her/his rights. The Act did not change any rights under Chapter 73 relating to management of performance, though adverse action may also be taken under this chapter.

This information must first be “developed” by the Director of the Office of Personnel Management. In doing so, the Director is to work with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission; however, the Act does not provide a deadline by which the information must be finalized and included in prospective notices.

Did you receive notice of a proposed adverse action?

Contact Alan Lescht and Associates, PC, today. Call us at (202) 463-6036, email us, or visit our website. We represent private employees in DC, Maryland, and northern Virginia, and federal employees around the world.

December 2017 Victories at Alan Lescht & Associates!

We’ve had a busy December! Our team recently won two appeals before the U.S. Merit Systems Protection Board (MSPB) and the Office of Federal Operations (OFO) on behalf of federal employees seeking to reverse removal actions.

OFO Victory

Our client worked for the Department of Justice and suffered from severe medical conditions that made it difficult for her to arrive to work on time. She requested a reasonable accommodation of a flexible work schedule, which the Agency denied. This denial subsequently led to her removal from service.

Our client filed an EEO complaint based on disability and failure to reasonably accommodate. The Agency issued a Final Agency Decision (FAD) finding no discrimination. We appealed the decision to the OFO, who found that the Agency had indeed denied our client reasonable accommodations, leading to her removal. The OFO ordered the Agency to reinstate our client to her former position and pay her back pay, compensatory damages, and attorney’s fees. The OFO also ordered the Agency to consider taking appropriate disciplinary action against the officials involved in the discrimination.

MSPB Victory

Our client was improperly charged with AWOL and Failure to Follow Leave Procedures after failing to personally contact the Agency when he was too sick to report to work. Instead, his wife contacted one of his supervisors that morning on his behalf. When the client returned to work the next day, he requested sick leave but it was denied. The Agency later removed him based upon his absence.

We appealed the client’s removal and represented him in a hearing before MSPB. We argued that the Agency failed to prove that it properly denied our client’s leave request, so the AWOL charge should have been dismissed. We also argued the Failure to Follow Leave Procedures charge should be dismissed because our client’s wife contacted the Agency to request sick leave for him.

Ultimately, the Administrative Judge reversed the Agency’s decision on both charges and ordered the employee’s reinstatement with back pay and benefits. The Agency was required to grant our client sick leave because he demonstrated that he was too sick to perform his duties. The Agency also failed to show that the wife’s request for sick leave violated leave procedures.

Questions? Call us today at (202) 463-6036, email us, or visit our website. We assist federal employees asserting discrimination claims before the EEOC, responding to proposed discipline, appealing discipline to the MSPB, pursuing grievances, challenging clearance revocations, and appealing denial of within grade increases. Our attorneys have experience in all aspects of federal litigation involving Title VII, the Rehabilitation Act, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA).

Can contractors file complaints against the federal government for discrimination?

So your employer is a private corporation with a government contract that you have been placed on where your office is located in a federal agency and you work alongside federal employees without any distinction.  But are there differences between federal employees and contractors who are subjected to discrimination, harassment, or retaliation in the workplace?  The simple answer is Yes and No.

As a contractor, you are still covered under most federal and local anti-discrimination laws (subject to certain limits – i.e. number of employees, “independent contractor” status, etc.) and will retain your right to file a Charge of Discrimination against your direct private employer and subsequent lawsuit and/or arbitration demand based on employment terms.

But under most circumstances, contractors are entitled to proceed through the federal EEO complaint process and name the federal government as a party as well.  That’s right, you can hold the federal government accountable regardless of whether you are paid by an outside organization or on the federal payroll.

The federal government was your joint employer

To hold the federal government accountable as a contractor, you’ll have to show that the government was your “joint employer.” A joint employment situation exists where two or more employers exercise sufficient control over a worker. In determining whether a federal agency is a joint employer, the following factors are considered:

  • the Agency’s right to control when, where, and how the worker performs the job;
  • the right to assign additional projects to the worker;
  • whether the work is performed on Agency premises;
  • whether the Agency provides the tools, material, and equipment to perform the job;
  • the duration of the relationship between the Agency and the worker whether the Agency controls the worker’s schedule; and
  • whether the Agency can discharge the worker.

None of these factors are decisive, and it’s not necessary to meet a majority of them to establish joint employment.

How hard is it to show the government is a joint employer?

The agency doesn’t have to completely control your activities; even partial control is sufficient to establish a joint employment relationship. Additionally, courts consider whether the agency is able to control the conditions of employment, not whether the agency actually exercises that right.

What about the terms of the government contract?

It doesn’t matter what the contract between the agency and the staffing firm provides in determining whether a joint-employment situation exists. Courts look to what actually occurs in the workplace, even if it contradicts the language of the contract.

Alan Lescht and Associates has experienced attorneys who can help!

Our firm has handled many cases involving the federal government as a joint employer. For example, we won a case for a staffing firm employee who worked within the Central Intelligence Agency. Although the Agency dismissed the case on the basis that our client was not a federal employee, the EEOC reversed the Agency’s decision and found that the government was liable for discrimination and retaliation as his joint employer.

Are you a federal government contractor who has suffered discrimination or harassment in the workplace? Contact Alan Lescht and Associates today. Call us at (202) 463-6036, or email us. We represent private employees in DC, Maryland, and northern Virginia and federal employees around the world.

Recovering unpaid overtime as a federal employee

Are you working over 40 hours per week but not getting paid for it? Federal employees can recover overtime pay under both the Fair Labor Standards Act (“FLSA”) and the Federal Employee Pay Act (“FEPA”). Even if your overtime was not expressly approved, both statutes may still allow you to recover overtime pay.

The FLSA requires overtime pay generally

The FLSA, which applies to private employers and the federal government alike, requires your employer to pay premium pay (1.5 times your normal pay) for all hours worked beyond the 40 per workweek. Certain employees are exempt from FLSA’s overtime pay requirement, such as:

  • Exempt Executive: This applies to employees whose primary duty is managing a business or a subdivision of a business, who regularly direct the work of at least two other full-time workers, and who have authority or influence in hiring, firing, and promotion of other workers.
  • Exempt Administrative: This applies to employees whose primary duty is the performance of office or non-manual work directly related to the management or general business operations. The employee must exercise discretion and independent judgment with respect to matters of significance.
  • Exempt Professional: This applies to employees whose primary duty is the performance of work requiring advanced knowledge in a field of science or learning, acquired by a prolonged course of specialized intellectual instruction.

Don’t be fooled by a position title. Whether you are a FLSA-exempt employee depends on your actual duties, not just your position title.

I’m FLSA-exempt, can I still get paid for overtime?

Fear not, federal employees. You can still recover overtime even if you are FLSA-exempt. The FEPA authorizes overtime pay for federal employees not covered by other specific statutes, with the exception of employees engaged in professional, technical engineering, or scientific activities.

What if I wasn’t told to work overtime but did anyway?

Even if you weren’t expressly instructed to work overtime, both statutes permits recovery under certain circumstances.

Under the FLSA, you can recover for overtime work that was “suffered or permitted.” This applies broadly to situations where the employer knows or should have known that employees are continuing to work beyond the 40-hour workweek, and when the employer is benefiting from the work being done.

Similarly, the FEPA provides more limited recovery for work that was “induced” by one with the authority to order approve overtime, but not expressly directed.

Alan Lescht and Associates can help!

Our firm currently represents over 1,500 Border Patrol agents who allege they were required to work unpaid hours during the sequestration and corresponding budget cuts from 2013 to 2016. The agents are also seeking compensation for work they allegedly performed before their shifts and at home.  The case is proceeding in the Court of Federal Claims, the venue for claims for unpaid wages against the federal government.

Do you think you may be entitled to overtime pay? Contact Alan Lescht and Associates, PC, today. Call us at (202) 463-6036, email us, or visit our website. We represent private employees in DC, Maryland, and northern Virginia, and federal employees around the world.