New law affords greater whistleblower protections to federal employees

Recently, a new law went into effect that better protects federal whistleblowers from retaliation by their supervisors. The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, unanimously passed by both chambers of Congress, aims to deter supervisors from punishing federal employees for exposing agency mismanagement. It also includes some agency-specific requirements to better protect Veterans Affairs employees’ privacy interests.

How will the law protect federal whistleblowers?

Many federal employees who disclose wrongdoing suffer the indignity of being targeted by their managers after speaking out about governmental waste, fraud, and abuse. Such was the case of Dr. Chris Kirkpatrick, a Department of Veterans Affairs psychologist who sadly committed suicide the same day he was fired in retaliation for whistleblowing. Dr. Kirkpatrick raised concerns about the over-prescription of opioids to veterans at a VA facility that was known to patients as “Candy Land.” Until last week, there was a lack of consequences for individuals engaging in such retaliation, and managers were even rewarded with bonuses and raises for harassing whistleblowers.

The new law, named after Mr. Kirkpatrick, requires that agencies train managers how to handle whistleblower complaints and provide a disciplinary process for retaliating managers.

The law also requires that the VA develop a plan to prevent unauthorized access to employees’ medical records, and it must reach out to employees to make them more aware of available mental health services.

Are you a federal whistleblower?

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.

Veterans’ preference can help you get a federal job

Armed Forces veterans receive preference in the hiring process for certain Federal jobs. Veterans’ preference acknowledges the nation’s obligation to disabled veterans. It recognizes the economic loss suffered by those who have served our country and restores veterans to a favorable competitive position for Federal employment. However, there are some limitations on when veterans’ preference applies and who qualifies for it.

When does preference apply?

The Office of Personnel Management (OPM) Vet Guide says veterans’ preference applies to permanent and temporary positions in the competitive and excepted services of the executive branch. Preference also applies in hiring from civil service examinations conducted by OPM and agencies under delegated examining authority, for most excepted service jobs. These jobs include Veterans Recruitment Appointments and temporary, term, and overseas limited appointments.

In addition to receiving preference in competitive appointments, veterans may apply for special noncompetitive appointments only available to veterans.

When doesn’t preference apply?

Veterans’ preference does not apply to Senior Executive Service positions or to executive branch positions that require Senate confirmation. Positions in the legislative and judicial branches are also exempt unless the positions are in the competitive service (for example, in the Government Printing Office) or have been otherwise designated.

Preference does not apply to promotion, reassignment, change to lower grade, transfer, or reinstatement. For selections under the merit promotion process, the preference-eligible receives only a right to apply and an opportunity to compete for the position. Additionally, preference does not apply to Veterans Health Administration appointments of physicians, dentists, and other positions made under 38 USC § 7401. Nor does it apply to defense intelligence positions in the Department of Defense filled pursuant to 10 USC § 1601.

Do I qualify for veterans’ preference?

To qualify for veterans’ preference, you must have served in the United States Armed Forces. The Armed Forces include the Army, Navy, Air Force, Marine Corps, and Coast Guard. To be eligible, you must have been released from active duty with an honorable or general discharge. Also, you must fall under one of the preference categories on Standard Form 50, Notification of Personnel Action.

Contact Alan Lescht and Associates today if you have questions about veterans’ preference.  Call us at (202) 463-6036, or email us. We offer strategic and results-driven legal services to federal government employees around the world.

Discipline for AWOL: Show up for work or face the consequences.

face discipline for AWOL charges

Thinking about taking leave while your leave request is still pending?  Think again or face discipline for being absent without leave (AWOL).

Federal government employees may face disciplinary action —including removal— for unexcused absences. An agency can charge an employee as AWOL if he or she doesn’t show up to work and fails to get approval for leave.

Employees may be charged with AWOL for being absent in many circumstances, including but not limited to the following:

  • The employee failed to request leave.
  • The leave request did not comply with the agency’s policies and procedures.
  • Management properly denied a leave request.
  • The employee fails to report to work during work hours.
  • Upon returning to work after approved leave for a medical reason, the employee fails to provide medical documentation supporting his absence.

How can the agency prove that I was AWOL?

If you receive a notice of proposed discipline for AWOL charges, the agency should include supporting documentation. This might include swipe records and security camera footage, showing when you entered and exited the work building. However, other types of evidence may also support an AWOL charge, especially for employees who telework. For example, records showing when an employee logged into or out of email or intranet may indicate that he or she was not working. Similarly, an employee’s repeated failure to promptly respond to emails or phone calls may also support AWOL charges.

Does management have to approve LWOP?

AWOL issues often arise when an employee who has a disability requests leave without pay (LWOP). Remember, management has the right to deny LWOP requests. However, if a supervisor knows that an employee is too ill to request leave, the supervisor should consider granting the employee LWOP or allowing donated leave before charging the employee as AWOL. An agency may require an employee to submit medical documentation to support his request for LWOP. Management can deny a request for LWOP if the employee fails to provide sufficient medical documentation.

Are you facing discipline for time and attendance issues?

If you are facing discipline due to AWOL charges, Alan Lescht and Associates can help! We offer strategic and results-driven legal services to federal government employees around the world. Call us at (202) 463-6036 or email us today.

Attention interns: You may be entitled to pay for the work you performed this summer!

unpaid intern

Many employers have found themselves in hot water when they learn that one of their interns is suing them for wages and overtime. In some cases, employees are misclassified as interns and denied wages they should receive. Some employers intentionally misclassify employees as interns to get free labor and pay less taxes. However, other employers simply don’t know the law.

Do employers have to pay interns?

It depends on the type of work they do. Employers don’t have to pay interns minimum wage like regular employees. However, an intern must receive some type of educational benefit to truly be an intern rather than an employee. The U.S. Department of Labor considers various factors to determine if a worker is an intern:

  • Did the employer hire the intern through a school program?
  • Did the intern actually receive educational or real-world training?
  • Did the intern displace regular employees?
  • Did the intern work under close supervision?
  • Did the intern provide an immediate advantage to the employer, or did he/she actually slow down or impede the employer’s work?
  • Did the intern or the employer benefit more from the arrangement?
  • Is the intern entitled to a job at the conclusion of the internship?
  • Do the employer and intern agree that the employer does not have to pay the intern?

Did my employer misclassify me?

Depending on the circumstances, you may have been misclassified as an intern if you provided an immediate advantage to the employer, if you displaced regular employees, or if you did not receive educational or real-world training. For example, in one case, a hospital misclassified students as radiology technician interns. Instead of placing students with employed radiology technicians, the program often assigned students to areas of the hospital staffed by other students. Students frequently performed X-rays by themselves.

If your employer misclassified you as an intern, you may have a right to minimum wage and overtime. DC employers must pay their employees at least $12.50 per hour.

Do you need legal assistance?

If you believe your employer misclassified you as an intern, you may be entitled to pay for the hours you worked. Contact Alan Lescht and Associates, PC, 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.

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.