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 when administrative leave can be approved, and 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 would require agencies to keep records and submit data reports that specifically identify all times that administrative leave, investigatory leave, notice leave, and weather and safety leave are issued. The rules also prohibit any employee from being on administrative leave for more than 10 days in a calendar year.

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 to an employee to attend a professional meeting that relates to the agency’s mission.
  • The employee’s absence is for an official agency-sponsored activity, such as a blood drive held in 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.

According to the proposed rules, agencies are prohibited from granting 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 is not officially-sponsored by the agency.

Importantly, the proposed rules state that investigative and notice leave may only be used when 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 are required to 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

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 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 period, 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 complaint?

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.  As such, if you are a legislative employee who has been subjected to discrimination; harassment; or retaliation, contact Alan Lescht & Associates, P.C. for assistance.

 

[1] Library of Congress (LOC) employees follow a different process.  Another blog post will discuss how LOC employees file EEO complaints.

Employees Have Rights When Facing Disciplinary Actions

Federal employees have rights when they receive a notice of 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

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, materials, policies, 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

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.

A Brief Guide to Age Discrimination

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 sector complaints of discrimination raise age-based allegations, making age discrimination the second most alleged basis in formal EEO complaints.

Age discrimination can take many forms, including the following:

  • Marine V., et al. v. Social Security Administration: The EEOC found that the agency’s use of a pre-employment written examination as a way to screen out internal candidates and recruit external hires was pretext for age discrimination. The EEOC ordered the agency to retroactively place the aggrieved employees in the positions for which they had applied but were not hired.
  • 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 age-based comments, including his statement that “younger people are coming in and out and they are better with computers,” created an inference of discrimination. The EEOC awarded the complainant compensatory damages and attorney’s fees.
  • Kruecke v. Department of Veterans Affairs: An Administrative Judge found that the agency’s discharge of a 67 year-old nurse for alleged deficient performance was pretext for age discrimination because the agency was willing to tolerate substandard performance from a younger nurse. The EEOC affirmed the AJ’s findings and ordered the agency to pay back pay and train its responsible officials.

Though victims of age discrimination may elect to pursue their complaints through the administrative process (the Equal Employment Opportunity Commission or other state and local human rights offices), 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.

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

The WPA is a law that protects federal government employees from retaliatory action for disclosing information about dishonest or illegal activities occurring within the federal government. A 2016 Federal Circuit decision interpreting the WPA, Rainey v. Merit Systems Protection Board, held that an employee who refuses to obey an order that would require him to violate a statute is protected from adverse action, but an employee who refuses to obey an order requiring him to violate a rule or regulation is not protected under the WPA.

What protections does the Follow the Rules Act add?

The Follow the Rules Act overturns the Rainey decision, and prohibits agencies from taking personnel actions against employees who refuse orders that would require the employee to violate a law, rule, or regulation.

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 additional protections of the Follow the Rules Act, federal employees who were directed to violate North Korea sanctions would have no whistleblower protections under the WPA.

Representative Gerry Connolly (D-VA) said of the bill, “we 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 you have been subjected to an adverse personnel action following a protected disclosure regarding illegal or improper activity, contact us today. We offer results-driven legal services to federal employees around the world.

The New VA Reform Bill (S. 1094): What Changes Are Coming?

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.

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.

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 appealable adverse actions on a “preponderance of the evidence” standard, which means that the Agency must prove that the charges for which a VA employee was disciplined more likely than not occurred.  This bill would move the Board to a substantial evidence standard, which would only require that the VA show that there is relevant evidence that would lead a reasonable person to support the discipline.  The substantial evidence standard is the lesser of the two standards, and will make it easier for the VA to not only remove employees, but to have that decision upheld by the Board.

If you are a VA employee, and facing disciplinary action, it is imperative that you do not wait to seek legal advice.  Our attorneys are well versed in the procedural requirements and disciplinary process, and can assist you in protecting your livelihood.  Call (202) 462-6036 or email us today 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 an 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).

Monica Quintana was hired by the City of Alexandria in 2011. After one year, the City outsourced its payroll and other administrative functions 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.

Quintana filed a lawsuit against both Randstad and the City of Alexandria in the U.S. District Court for the Eastern District of Virginia. 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 dismissed Quintana’s claims against the City.

On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed the district court’s decision and allowed Quintana to continue her lawsuit against the City of Alexandria. The Fourth Circuit ruled that Quintana alleged enough facts to show that the City of Alexandria, along with Randstad, was her employer.

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, P.C., offers strategic and results-driven legal services to clients in Washington, D.C., Maryland and Northern Virginia, and to federal employees throughout the United States.

D.C. Public Schools sued over discrimination

Employees face discrimination in the workplace for all sorts of reasons. Sometimes, a worker is treated differently as a result of his or her gender. Or, an employee may lose their job due to their race or religious beliefs. In Washington, D.C., and the whole country, some people may not realize that disability discrimination is also against the law. Regrettably, employees with a wide variety of disabilities experience discrimination that can be humiliating and make their job very difficult. Regardless of the reasons why workers experience discrimination, it must be identified and dealt with immediately.

A woman claims she was discriminated against and recently took legal action against D.C. Public Schools. The woman, who used to work for the school system as a teacher, said that she was subjected to discrimination over a disability that she suffered from, which was a long-term health condition.

The ex-teacher said that the mistreatment has had a significant impact on her from an emotional and even physical standpoint. Moreover, she claims that she was discriminated against by school staff and administrators. The woman chose to keep her identity private.

Victims of discrimination may feel uneasy going to work and afraid to speak out. However, they deserve a voice and should not think twice about defending their rights. Moreover, employees who decide to take action should know that retaliation is also illegal. For some, figuring out the best path forward can be tricky, especially when their job is involved. However, turning to an attorney may help.

Source: WUSA9, “Former DC teacher sues DCPS for discrimination,” Delia Goncalves, May 4, 2017

How are immigrants discriminated against at work?

If you have moved to the U.S. for work, or are considering immigrating to the country to pursue a job, you may have an array of uncertainties, stressors and immigrations issues to deal with. In Washington, D.C., and all over the country, there are many opportunities that can help immigrants further their lives. Unfortunately, some of them experience discrimination in the workplace and it is vital for you to recognize and take action if you ever experience discrimination yourself.

According to the U.S. Equal Employment Opportunity Commission, employment immigrants may be discriminated against at work in many different ways. For example, they may be unlawfully discriminated against as a result of their national origin or the fact that they associate with people who are part of a certain national origin group. Employment immigrants may also be treated unfairly because of their citizenship status, the place their ancestors were born, the way they dress or look and their accent.

Discrimination rears its head in diverse ways in work spaces all over the nation. From the loss of a job to the rejection of a perfectly-qualified job applicant, victims of discrimination may have their lives thrown into chaos. If you think that your employer may have broken the law by treating you differently based upon these reasons or other factors (such as your gender), you should evaluate your rights as an employee and make sure that they are held responsible for their actions.

This article was put together for general informational purposes and is not legal advice.

What is parental status discrimination?

Many people are aware of the prevalence and unacceptable nature of discrimination based on an employee’s age, race or religious beliefs. However, in Washington, D.C., and cities all over the U.S., workers are subjected to many other types of discrimination, such as parental status discrimination. If you think that you may have been illegally discriminated against based on your status as a parent, you should assess the details of what took place and go over your options.

According to the U.S. Equal Employment Opportunity Commission, Executive Order 13152 prohibits parental status discrimination. Whle the EEOC does not include parental status discrimination as a covered basis when enforcing discrimination laws, this form of discrimination may constitute disability discrimination or sex discrimination, dependin on the details of what happened. Moreover, if you are a federal worker or are applying for a federal job, you should remember that this form of discrimination is prohibited in the federal workplace by government policy.

If you have children discrimination based on your parental status can be especially troubling. Whether your hours are cut, you are denied a job you are perfectly qualified for or you are fired solely because of your parental status, this discrimination can be financially and emotionally draining. If your employee rights have been trampled on, you need to start reviewing the best path forward and should hold accountable those who have broken laws that were put in place to protect workers from unfair treatment.

Remember, this post is not offered as an alternative to legal advice.