The basic components of a whistleblower case

As the name implies, a whistleblower is someone who publicly discloses the criminal activity or other misconduct of their employer without their employer’s consent. In most cases, the act of blowing the whistle is dangerous for an employee, as they have put their employer in the spotlight in a negative way. Because of this, there are measures in place to protect the whistleblower if they encounter retaliation as a result of the whistleblower activity.

However, whistleblower protections vary widely based on the type of activity, your employer and where you live. There is no general definition or universal list of whistleblower activity that is protected, and sometimes the measures could be difficult to overcome. For example, the statute of limitations in most whistleblower cases begins when an employee learns that they will be retaliated against, rather than when they are actually retaliated against. In some federal whistleblower statutes, the statute of limitations is as little as 30 days.

In any case, for the whistleblower, the main component of his or her case against their employer calls for proof that they were retaliated against as a result of his or her whistleblower activity. In addition, the case should take into account things such as the statute of limitations for the activity and what sort of damages can be recovered from the employer as a result of the case.

With the vague, difficult and sometimes dangerous nature of whistleblower activity, consultation with an attorney as soon as possible is highly recommended to discuss your rights and ensure as much as protection as possible from the employer’s possible retaliation.

Avoiding nepotism in government employment

Nepotism is common in the private sector – especially among small, family-run businesses. But in government jobs, it’s a conflict of interest that could derail your career.

Nepotism in any form is prohibited among federal employees, and for good reason. The government has an obligation to maintain competitive, open and merit-based personnel practices. Nepotism unfairly shuts out qualified applicants and creates hurdles that shouldn’t exist. As a type of corruption, it’s not only unethical but also illegal, and it can be a criminal offense.

The sometimes blurry boundaries of nepotism

What exactly is nepotism? In the context of the government, it’s any favorable treatment toward relatives that compromises fairness, integrity and neutrality.

Nepotism commonly arises in the employment process. However, it isn’t limited to hiring. It can also come up in contracting, reviewing, inspecting and other dealings with third parties.

While nepotism is more frequent in entry-level government positions, it sometimes extends to higher-level officers. For example, the former director of a government contracting division was recently indicted on fraud charges involving nepotism. She allegedly pressured a contracting company to hire her husband, brother, sister-in-law and father – all for comfortable salaries.

Navigating gray areas

Nepotism isn’t always obvious, and it isn’t always done with bad intentions. Government employees might cross into a gray area when they express interest in a vacant position on behalf of a relative they believe is well-qualified. Moreover, just because a highly credentialed applicant has a relative working in the same agency shouldn’t mean that person is ineligible.

The Merit Systems Protection Board (MSPB) has provided general guidance on how to navigate these sticky situations. The MSPB urges employees to always err on the side of honesty and transparency. Employees should disclose potential conflicts to the appropriate ethics office and recuse themselves when needed.

Yet these standards aren’t always clear-cut. For example, there is no consistent guidance on when an optional disclosure form should be used to identify whether job applicants have relatives in the same agency. And even those who follow the MSPB’s guidelines could come under fire later. As attorney Alan Lescht noted in a recent article, employees might submit full disclosures and maintain total transparency, yet these could still get overlooked in the shuffle of bureaucracy.

Steering clear of impropriety with big changes ahead

Ongoing training and more detailed guidance are essential for helping federal employees steer clear of impropriety. As the change in our nation’s presidential administration approaches – bringing massive staff turnovers and thousands of new appointment opportunities – the need for straightforward, easy-to-follow procedures will intensify.

The bottom line: Transparency shouldn’t be difficult to attain for employees, officers, managers and other government personnel.

How a Trump victory could affect federal employees: Fewer rights, less job security and potentially 20,000-plus layoffs

Presidential candidate Donald Trump is well known for his “Your fired!” catchphrase from the reality TV show The Apprentice. He would live up to that slogan by making it easier to fire federal employees if he gets elected in November.

New Jersey Governor Chris Christie, who heads Trump’s White House transition team, told the press that Trump believes the process for firing civil servants takes too long and involves too many hurdles. Trump’s administration cited concerns that Obama would convert political appointees to civil servants, granting them greater job security and equal pay rights.

Employment rights for civil servants: Rooted not just in the law, but also in the Constitution

Government employees have due process rights when it comes to losing their jobs. These rights – which are rooted in the Fifth Amendment to the U.S. Constitution – include a requirement for just cause and an opportunity to challenge the firing.

The Civil Service Reform Act of 1978 (CSRA) further outlines the procedures for firing, disciplining and demoting federal employees. Passed several years after the Watergate Scandal, this law established the Office of Personnel Management and the Merit Systems Protection Board. Both agencies play important roles in protecting the rights of federal employees.

Big changes for federal employees if Trump gains the White House

It’s unclear how, exactly, Trump would change existing federal employment procedures. However, Trump’s previously announced policies would impact government employees in key ways:

Although the details of these proposals have yet to be outlined, one thing is clear: A Trump victory in the November election would have a major impact on federal employees at all levels.

The baffling reality of age discrimination: How too much experience can impede your career

When it comes to the workforce, experience can cut both ways. Many advanced careers require years or decades of demonstrated experience. However, older workers are increasingly finding themselves shut out of career opportunities simply because of age discrimination.

Employers sometimes overlook well-qualified seniors in favor of fresh young faces. When they make employment decisions purely based on age, however, they may be breaking the law.

The Age Discrimination in Employment Act (ADEA) makes it illegal for most employers to discriminate against those ages 40 and older. Unlawful and unfair treatment can happen at any stage of the employment process, including:

  • Hiring
  • Salary and benefits
  • Working conditions
  • Advancement opportunities
  • Layoffs, firings or forced retirements

What can you do about age discrimination?

You might be entitled to bring a legal action against your employer for compensation, reinstatement (if appropriate) and punitive damages. Before doing anything, though, talk with a lawyer about your rights. Don’t put off this important first step. If you wait too long, important deadlines could pass and evidence could fade, leaving you out of luck.

The problem of proof

You might know, deep down, that you were a victim of age discrimination. Proving it is another matter. Unless you’re lucky enough to find a smoking gun, you likely won’t have a concrete admission from your employer that their unfair actions were based on your age.

Fortunately, many types of evidence might shed light on your situation. For example:

  • Perhaps your employer has engaged in an ongoing pattern of discriminatory action against older employees
  • Maybe other employees have witnessed offensive remarks or persistent harassment
  • Maybe you reported the age discrimination internally and your concerns were ignored – or, worse, you were fired in retaliation

You should never feel forced to remain silent about illegal age discrimination. By making your voice heard, you can seek justice and accountability – not only for yourself, but also for others in similar situations. Contact Alan Lescht and Associates today if you have been discriminated against because of your age.

How social media can affect your security clearance

Social media provides a window into the private lives of individuals. Sometimes, that window can reveal red flags that cast doubt on the character of those entrusted with our nation’s secrets.

A federal policy released last month allows agencies to consider social media when vetting employees or contractors for security clearances. The policy covers traditional social media platforms – such as Facebook, Twitter and Instagram – as well as other types of user-generated Internet content such as comments and discussion forums.

The move reflects a growing recognition of the insights social media can offer when it comes to evaluating risks. As part of a “whole person” approach to reviewing security clearance applications and renewals, social media profiles are difficult to ignore.

What this means for you

Security clearances are valuable credentials. Your clearance may be essential for your career. Fortunately, the new policy doesn’t mean you will have to steer clear of social media entirely.

Securing – and maintaining – these clearances has always required passing a rigorous background investigation. The new policy simply adds another dimension to that inquiry. Importantly, it is limited in scope to public postings only. Agencies won’t require applicants to divulge their login information, nor will they require disclosure of every social media handle.

The takeaway: Use common sense

It’s no secret that questionable behaviors can potentially jeopardize your clearance.

And, as most people are by now well aware, there is no such thing as true anonymity on the Internet. Taking a commonsense approach to your social media presence can go a long way toward safeguarding your security clearance.

What can my old boss say in a job reference?

The reference can be a problem when it comes to getting a new job, especially if you’ve been fired from your old one. If your former employer says the wrong thing, it can very well mean you’ve lost the opportunity.

So, what can HR or your old boss say?

How the law works

In general, each state regulates what a former employer can and cannot say in a job reference. In general, information provided should be limited to your actual on-the-job performance.

This can mean many things.

In Maryland, for example, former employers can disclose information about your job performance, as well as why you left the company. In Virginia, former employers can disclose information about your “effort” and “productivity,” along with information about disciplinary action or performance improvement plans and overall professional conduct.

Perhaps your old boss just doesn’t like you

A lot can be said about your job performance in a reference, some of which may go outside of what the law allows in your particular state. Your old boss may give false information, for example, to damage your reputation, because she simply doesn’t like you. It may have nothing to do with actual performance, but it will likely cost you that new job just the same.

If this happens to you, you may have a cause of action.

Talk with an employment lawyer

At Alan Lescht & Associates, P.C., protecting your job is our job. If you believe that your former employer is railroading your future job prospects, call us at 202-536-3315.

You want to get that new job, not be shot down because your former employer acted unfairly.

Pregnancy discrimination: Pregnant nurse forced out of her job at the clinic

True story – well, to protect confidentiality, it’s true enough. This is the story of a nurse who had trouble getting pregnant, and once she did get pregnant, her employer only made things worse.

We’ll call her Nancy.

Nancy had a problem. She wanted a new job. Though the work was often very fulfilling, she’d had enough of her role as a PICU nurse. She wanted something new and different to do within the field of nursing. And, frankly, she was sick of the long hours on her feet and the night shifts.

So she set out to find one.

Now, given the hot job market for nurses, Nancy’s high performance in the PICU, and a great referral from a nursing friend and colleague, it wasn’t difficult for Nancy to find a new job as a nurse supporting neurosurgeons in a clinical setting. It suited her well – great pay, relatively fulfilling work, regular 9-to-5 hours.

This was just the type of thing Nancy needed, especially since she wanted to start a family.

But getting pregnant was Nancy’s other problem.

She and her husband had been actively trying to get pregnant for months. Now, they were going down the path of assisted reproduction, with the possibility of IVF looming in the back of Nancy’s mind. Nancy was starting to wonder whether she’d ever be able to get pregnant.

But, no matter how it happened, it would be their first child, and Nancy wanted that more than anything.

Nancy gets the job AND gets pregnant. Then she’s forced out.

At first, it seems like Nancy has solved both of her problems. Shortly after she finds that great new job at the clinic, a miracle of miracles: Nancy discovers she’s pregnant, no IVF required, just a bit more time than she and her husband figured they’d need to get pregnant with their first.

Ultimately, the doctor orders bed rest.

Fast-forward a few months: Nancy’s starting to show, which is great, but it turns out that this pregnancy won’t be free of some bumps and bruises. The doctor wants Nancy in for more-than-regular check-ups, to monitor Baby’s health and Nancy’s, which requires that she be out of the office regularly. Nancy’s superiors are supportive, but HR grudgingly goes along with it.

What can you do, right?

Nancy feels she has no choice but to quit.

But then, another couple months go by, and to protect Baby and bring it to as full term as possible, the doctor orders bed rest.

This Nancy’s employer will not accept.

HR refuses to make a reasonable accommodation and allow Nancy to work from home (which other employees at this clinic have done in the past) as per “company policy” and because Nancy hasn’t “been there long enough” (less than a year), citing eligibility under FMLA. (All this despite the assertions of Nancy’s boss that they value her contributions and want Nancy to keep working there.)

Ultimately, Nancy feels she has no choice but to quit.

Did Nancy try to game the system when she got pregnant? Or is she somebody who desperately needs legal protection?

You’re not alone. Things like this happen to people more often than it should. If it ever happens to you, talk with a lawyer who understands. Suing your former employer is one thing – but suing as a nurse is another. The healthcare field is a small world. We’ll help you walk through the pros and cons.

Obama Administration unveils major changes to overtime law

POTUS overtime

The Department of Labor formally announced a substantial change to federal overtime regulations. Specifically, the overtime threshold for employees in professional, administrative and management roles will increase from $23,660 to $47,476. This news was formally announced by Vice President Joe Biden, Labor Secretary Thomas Perez and Senator Sherrod Brown (D.-Ohio). The increase is expected to go into effect on December 1, 2016, barring Congressional action.

Labor groups and others applauded the move. Jared Bernstein, a former economist for Vice President Biden and a senior fellow at the Center on Budget and Policy Priorities, stated “[T]his is one of the most important measures that the Obama administration has implemented to help middle-wage workers.”

What are the practical implications for overtime wages?

According to the Department of Labor, the increased threshold is likely to impact approximately 4.2 million salaried employees across the United States. Businesses are likely to react to the increase in one of three ways.

  • For qualifying employees who are already close to the threshold, employers may simply raise employee salaries in order to avoid having to pay overtime
  • Alternately, employers will convert employees to hourly employees, who will then be required to track their time so they can receive proper amounts of overtime pay
  • Employers may convert an employee from salaried to hourly and reduce an employee’s base pay in order to account for the overtime pay they will likely receive going forward.

Going forward, it will be worth watching to see how employers comply with these new regulations.

Anyone not receiving proper overtime pay has the right to bring a claim for unpaid overtime. Contact Alan lescht and Associates today if you believe your employer owes you overtime wages.

Sources: Millions more workers would be eligible for overtime pay under new federal rule, Jonnelle Marte, Washington Post, May 17, 2016

Feds issue ‘first-ever’ social media policy for security clearance determinations

As the Washington Post reports, the Director of National Intelligence has issued a directive that Facebook, Twitter, and other social media platforms will now figure in the government’s investigation of federal employees and would-be employees who are applying (and re-applying) for security clearances.

The Post calls it a “first-ever” policy.

The ‘whole-person’ approach includes looking into social media accounts.

The Post quotes Beth Cobert of the Office of Personnel Management:

“Agencies make security clearance decisions using a ‘whole person’ approach to assessing who is an acceptable security risk. One component of that approach in the 21st century is social media.”

Investigators will look only at info that is ‘readily available.’

Apparently, a key aspect of this new policy is that the government won’t look into everything posted online, nor will it take everything it finds into account in its security clearance determination – though the Post report lacks details as to how this will be policed.

Indeed, some lawmakers are skeptical.

“How will this work?” asked Rep. Gerry Connolly. “How do we flag the serious from the trivia?”

“Alan gave me the information I needed to save my federal career.” – Former client

If you have an issue with your security clearance, consider contacting Alan Lescht & Associates, P.C. Based in Washington, D.C., we regularly represent federal employees facing trouble with security clearances – whether at-risk or suspended/revoked. For more information on our practice, visit this page about security clearances, or call 202-463-6036.

Financial considerations and revoking or denying security clearance

The federal government will revoke, suspend or deny security clearance for many reasons. Some of the most common reasons are personal conduct, which often includes lying on the application, a criminal history, or the appearance of foreign influence or foreign preference. Far and away the most common reason for denying or revoking security clearance is financial considerations. In 2015, the Department of Defense used financial considerations to deny hundreds of security clearance applications.

In many of these cases, individuals filed bankruptcy, had delinquent student loans, or were having trouble paying their mortgage. In rare cases, individuals had gambling debts that prevented them from gaining security clearance. Regardless of the type of debt, the government will look closely at any person with significant financial issues.

Why does the federal government analyze a person’s finances?

The federal government takes the position that individuals with significant debt are more likely to engage in illegal activities to pay their debts. People with serious financial problems may be at greater risk for selling classified or top-secret government information. When analyzing a person’s finances and their eligibility for security clearance, the government will consider many factors, including:

  • How the debts were incurred: For example, student loan debts are less damaging than debts incurred by reckless behavior
  • The steps the applicant took to mitigate the debt: Undertaking a repayment plan will be looked upon more favorably than taking steps to avoid repayment
  • How much debt was incurred: The larger the debt, the more likely the government will carefully scrutinize the person’s application

The law firm of Alan Lescht & Associates represents federal employees across the United States in security clearance matters. If you received a Statement of Reasons (SOR) that your security clearance was revoked or suspended, our lawyers are ready to take action. We can present an appeal before the appropriate agency and help you take appropriate steps to mitigate these concerns. Call 202-463-6036 to schedule a consultation.