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.

D.C. Public Schools sued over disability discrimination

Employees face discrimination in the workplace for all sorts of reasons. Sometimes, an employer may treat a worker differently because of race or national origin. Or, an employee may lose her job due to gender 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, employees must identify and deal with discrimination immediately.

Former teacher files disability discrimination lawsuit

A woman claims her former employer, D.C. Public Schools, subjected her to disability discrimination. 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. She recently filed a lawsuit against the school system.

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 school staff and administrators discriminated against her. 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. Figuring out the best path forward can be tricky, especially when a job is involved. However, turning to an attorney may help.

Contact Alan Lescht and Associates today if you have been subjected to disability discrimination.

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

National origin discrimination common against immigrant workers

If you moved to the United States for work, or are considering immigrating here, you may have an array of uncertainties, stressors, and concerns. In Washington, DC, and all over the country, there are many opportunities that can help immigrants further their lives. Unfortunately, many immigrants experience national origin discrimination or other types of discrimination in the workplace. It is vital for you to recognize and take action if you ever experience discrimination yourself.

There are many types of national origin discrimination.

According to the U.S. Equal Employment Opportunity Commission, employment immigrants may be discriminated against at work in many different ways. For example, an employer may discriminate against a person because of his national origin or his association with people from a certain country. National origin discrimination includes treating employees unfairly because of their citizenship status, ancestry, the way they dress or look, or their accents.

Discrimination rears its head in diverse ways in work spaces all over the nation. Strugging to find a job or losing the job you have throws your life into chaos. If you think your employer treated you differently because of your national origin, you may want to contact an attorney. Employers who discriminate should be held accountable for their actions.

This article was put together for general informational purposes and is not legal advice. Contact Alan Lescht and Associates today if you believe you have been subjected to national origin discrimination.

EEOC says parental status discrimination is illegal under executive order

father with baby working on computer

Many people are aware of the prevalence of discrimination based on age, race or religious beliefs. However, workers are subjected to many other types of discrimination, such as parental status discrimination. If you think that you have been discriminated against based on your parental status, you should consider your options.

EEOC says Executive Order 13152 prohibits parental status discrimination

According to the U.S. Equal Employment Opportunity Commission, Executive Order 13152 prohibits parental status discrimination. The EEOC does not include parental status discrimination as a covered basis when enforcing discrimination laws. However, this form of discrimination may constitute disability or sex discrimination, depending on what happened. Additionally, it is illegal for the federal government to discriminate against employees and job applicants on the basis of parental status.

If you have children discrimination based on your parental status can be especially troubling. Whether your hours were cut, you were denied a job, or you were fired because of your parental responsibilities, discrimination is financially and emotionally draining. If your employer violated your rights, you can hold your employer accountable.

Remember, this post is not offered as an alternative to legal advice. Contact Alan Lescht and Associates if you think you have been discriminated against because you are a parent.

Tip sharing: Minimum wage still required for tipped employees

Many workers rely on tips to make a living. Wait staff, bartenders, baristas, hair stylists, and cleaning staff are just some examples of employees who rely on tips.

One common practice in industries where tipping is the norm is tip sharing. Tip sharing involves pooling tipped employees’ earnings and dividing them among employees. The tips may be divided among tip-receiving employees and other employees such as dishwashers, bussers, cooks, and others who don’t commonly receive tips themselves.

Most states allow for tip sharing, but there are certain rules and limitations that apply. Here are two important things to remember:

  • Minimum wage requirements: Tip-earning employees are only required to place tips in a pool that exceed minimum wage. Employees are not required to share tips if their total earnings equal less than minimum wage.
  • Employers excluded: Employers cannot take part in tip sharing. Tip sharing is only for employees who receive tips – not those who employ them.

When an employer takes tips from a tip pool, or when a tipped employee is earning less than minimum wage, it may be time to speak to an employment law attorney about what is happening.

Although tip pooling is legal in many states, employers must follow the law. When they don’t, they can be held accountable.

Talk to an attorney today: Call Alan Lescht & Associates, P.C., at 202-463-6036 for answers to your questions about tip sharing – and to learn what to do if your employer is violating the law.

RIFs in the Trump Era: Reemployment rights after a RIF

Welcome back to our series on RIFs in the Trump era. If you missed Parts One and Two of the series, click here. Today is our final installment of the series, where we will discuss reemployment rights after a RIF.

What are reemployment rights?

Employees who are separated due to a RIF have reemployment priority rights. Agencies use a reemployment priority list (“RPL”) to rehire employees separated as part of a RIF. In filling any vacancies that arise after a RIF, an agency must give priority to certain former employees on the RPL over certain outside job applicants. Agencies are also permitted to consider RPL registrants before considering internal candidates.

Establishing an RPL

An agency must establish and maintain an RPL for each area in which it separates eligible competitive service employees by RIF. Employees are not required to participate in this list and will not automatically be placed on the list. An agency must give employees information about the list when it issues a notice of separation. The former employee must complete and submit the RPL application on or before the RIF separation date to register for the program.

Reemployment and appeals

To be appointed to a vacant position through an RPL, an employee must meet all requirements for the vacant position. The agency will use a numerical scoring system to rank applicants.

What if the agency does not follow the RPL? An employee can appeal to the MSPB if he believes his reemployment rights were violated.

Questions about RIFs?

Do you feel that your agency improperly failed to consider your reemployment rights? Protecting your job is our job. Contact Alan Lescht and Associates today. Call us at (202) 536-3315 or email Alan.

Security clearance determinations

What factors are considered?

To be eligible to access classified information, the agency will consider a number of factors including:

  • Allegiance to the United States;
  • Foreign influence;
  • Foreign preference;
  • Sexual behavior;
  • Personal conduct;
  • Financial considerations, including falling behind on bills or loans;
  • Alcohol consumption;
  • Drug involvement;
  • Emotional, mental, and personality disorders;
  • Criminal conduct;
  • Security violations;
  • Outside activities; and
  • Misuse of Information Technology systems

Can my security clearance be challenged after I am hired?

Yes, a security clearance can be challenged or revoked at any time during employment. The agency will consider whether the employee voluntarily reported the information, was truthful in responding to questions, sought assistance and followed professional guidance, and has demonstrated positive changes in behavior and employment.

What if my security clearance is revoked?

We have had success in assisting our clients with security clearance issues. These are just a few.

  • Department of Energy- Our client, a contract electrician, received a denial of access to classified information based on his submission of an EQIP improperly referencing an arrest from 23 years prior. We submitted a written response and then conducted a hearing before the Department of Energy Office of Hearings and Appeals. At the hearing, we demonstrated that our client never intended to deceive the government regarding his arrest and that his conduct did not create a danger or threat to national security. After receiving an unfavorable ruling from the Administrative Judge, we appealed and filed for review to the Appeal Panel at the Department of Energy Office of Departmental Personnel Security, and we persuaded the Appeal Panel to overturn the unfavorable ruling, find in our client’s favor, and held that our client’s behavior did not constitute a threat to national security. As a result, our client was granted access to classified information, and was able to keep his job which required the security clearance.
  • Department of the Navy- Our client received a letter of intent to revoke his security clearance based on allegations that he had mishandled sensitive information and had a disqualifying psychological condition because he suffered from anxiety and depression. We contested the proposal and filed a response demonstrating that the alleged mishandling of sensitive information occurred under unusual circumstances when the employee was tasked with an unfair workload by a hostile supervisor. We also established that the allegations regarding the employee’s psychological condition did not amount to a security concern. The Department of Defense Central Adjudication Facility agreed and restored the employee’s clearance.
  • USCIS- We represented a client whose security clearance (access to classified and Sensitive Compartmented Information) was suspended and then revoked due to his personal use of a government laptop in ways that violated policy and resulted in malware invading the laptop. We appealed the revocation, arguing that most of the client’s personal use of the computer did not violate policy, that he did not intend to violate policy or cause harm to the government, and that his understanding of the seriousness of his actions combined with his long history of exemplary government service indicated that he would never allow such a mistake to reoccur. The Deciding Official agreed that the violation was minimal, most of the violation was unintentional, and that the client was unlikely to ever allow recurrence. Thus, the Deciding Official reversed the revocation of our client’s security clearance and restored his access.

For assistance with security clearance matters, contact Alan Lescht and Associates today. Call us at (202) 463-6036, or email alan.lescht@leschtlaw.com.

Ins and outs of suitability determinations

We posted a news update last week about how Trump’s hiring freeze will affect new federal employees who have not yet been deemed suitable for employment. Read below to learn more about suitability determinations.

Who is required to undergo suitability determinations?

Positions requiring a suitability determination are those in the competitive service, positions in the excepted service where the employee can be noncompetitively converted to the competitive service, and career appointments to a position in the Senior Executive Service. The Office of Personnel Management (OPM) is tasked with making suitability determinations for new federal employees.

Making suitability determinations

The following factors are considered in determining whether an individual is suitable for federal employment:

  • Misconduct or negligence in employment;
  • Criminal or dishonest conduct;
  • Material, intentional false statement, or deception or fraud in examination of the appointee;
  • Alcohol abuse, without evidence of substantial rehabilitation;
  • Illegal use of narcotics;
  • Knowing or willful engagement in acts or activities designed to overthrow the U.S. government.

What else will OPM consider?

OPM may also consider the following:

  • The nature of the position for which the person is applying for;
  • The nature and seriousness of the conduct;
  • The circumstances surrounding the conduct;
  • The recency of the conduct;
  • The age of the person involved at the time of the conduct;
  • Contributing societal conditions;
  • The absence or presence of rehabilitation or efforts towards rehabilitation.

Can suitability be challenged after appointment?

Yes! OPM may initiate a suitability action at any time. OPM is required to notify an employee in writing of the proposed action, and allow the employee to respond in writing. You are permitted to hire a lawyer if you are facing a proposed suitability action.

Successful suitability cases

  • We were retained by a recent college graduate who received a job offer from the federal government. On his suitability questionnaire, he honestly disclosed his prior drug use and arrest for underage drinking. The government found him unsuitable for federal employment. Our firm submitted a response, arguing that the client had been completely rehabilitated. He graduated from college with honors, was an excellent employee at his prior job, and had a new group of friends. We also emphasized that recreational drug use was very common among college-aged people. The government reversed its decision and allowed our client to begin his job.
  • U.S. Customs and Border Protection – A federal employee with over 8 years of federal service contacted us after she received a proposal to remove her from her position and the federal service due to a negative suitability determination based on allegations that she had engaged in misconduct/negligence in employment and dishonest conduct related to her disclosures in her job application. We submitted a written response demonstrating that she had in fact provided honest disclosures and many of the cited incidents were verbal warnings that did not require disclosure. Based on this submission, the agency reinstated her and determined that our client had illustrated that she did not commit the infractions alleged.
  • Peace Corps – A federal employee contacted us after receiving a proposal to terminate his employment as a result of an adverse suitability determination based on allegations that he made material, intentional false statements on his declaration for federal employment. We submitted a response to the proposal demonstrating that the employee misunderstood a particular question and believed that he had responded truthfully on his declaration for employment. The agency overturned the adverse suitability determination and cancelled his proposed removal.

If you have questions about suitability determinations or if you are facing a purposed action, contact Alan Lescht and Associates today. Call us at (202) 463-6036, or send us an email.

Check back next week for a discussion of security clearances.

Sexual harassment: Recognizing signs in the workplace

Sexual harassment is illegal under federal law and under many state and local laws. It is something no worker should ever have to experience. Unfortunately, it happens in workplaces all over the country.

It can be difficult to identify. Victims may feel helpless and embarrassed, and they may question if what they are experiencing is truly sexual harassment.

Sexual harassment can take many forms

Let’s take a look at some types of actions and behaviors that may be considered sexual harassment:

  • Repeatedly asking a coworker out on a date
  • Making comments about a colleague’s appearance
  • Inappropriately touching a coworker (rubbing, hugging, patting, purposely rubbing up against, etc.)
  • Sending suggestive emails, instant messages, or text messages to a coworker
  • Displaying pornography or other inappropriate images or videos at work
  • Asking questions about a coworker’s sexual orientation, sexual experience, love live, etc.

Sexual harassment can occur between two colleagues or between a colleague and a superior. In either case, it is illegal.

Employers must take immediate action

As soon as a supervisor becomes aware of sexual harassment, he or she must take immediate action to address the behavior. If a supervisor fails to do so, the employer may be liable.

In some cases, an employer will retaliate against an employee who complains about sexual harassment by demoting or firing him or her. This is illegal.

It is advisable for victims to speak to an attorney who handles workplace harassment cases. Victims should learn about their rights, legal options, and options for seeking compensation.

Contact Alan Lescht and Associates today, if you believe you have been sexually harassed at your job. Your consultation is completely confidential.