Lawmakers work to eliminate federal employees’ due process rights

Jeff Spross’s opinion piece in The Week headlines with a bang (much like most pieces on President Trump) by asserting Trump’s “foolish demonization of public workers,” and this first line: “The so-called ‘greatest jobs president that God ever created’ began his presidency by refusing to hire people.” Spross refers to an executive order that put a freeze on hiring of federal employees, signed on Jan. 23, Trump’s first full day on the job.

But Trump isn’t the only one “demonizing” public workers.

GOP lawmakers, emboldened by the new administration, and by the political reality of controlling both the House and the Senate, are jumping on board as well. Lawmakers are currently working to weaken or eliminate the due process rights of federal employees.

The Holman Rule, revived from the dead

As per the Washington Post, one such example is the Holman Rule, which House Republicans revived from the dead. It allows lawmakers to go so far as to “single out” an individual federal employee, targeting the employee’s pay.

How might this work?

A government scientist studying climate change, for example, who insists on tweeting to the public, against the Trump administration’s orders, may theoretically find his or her pay cut to just $1, effectively ending employment, much like Milton in the movie Office Space.

“[O]pponents and supporters agree that the work of 2.1 million civil servants, designed to be insulated from politics, is now vulnerable to the whims of elected officials,” as Jenna Portnoy and Lisa Rein report for the Post.

A sad state of affairs indeed.

Contact Alan Lescht and Associates today if you believe your due process rights have been violated.

Negotiating a severance package after wrongful termination

Hearing the words, “You’re fired” can be every employee’s worst nightmare. Washington, D.C., employees who are let go from their jobs may find that their emotions run the gamut from anger to sadness to fear. This is especially true when an employee has been wrongfully terminated, that is, laid off for unlawful reasons such as retaliation, sexual harassment or illegal discrimination.

When an employee has been wrongfully terminated, he or she may want to take legal action against his or her employer. However, in some cases it may be possible for employees to negotiate a severance package in lieu of litigation. An attorney can advise individuals in these situations about whether a severance package or litigation makes the most sense in their case.

There are some strategies that can be employed when negotiating a severance package. For example, there is no need to rush into an offer. Take time to keep your emotions in check and think about the offer before agreeing to it. There is no need to take the very first offer you are presented with. Staying on the payroll for as long as you can may be beneficial. In addition, one can ask for the offer to be placed in writing. Moreover, in addition to severance pay, one can negotiate that one’s medical insurance benefits be extended.

Although it is a very stressful situation to be in, employees who have been wrongfully terminated do have options that they may want to discuss with an attorney. With the right help, individuals can determine whether they can pursue a legal claim or negotiate a severance package. There may be other options available to them as well that an attorney can help explain.

Statistics about sexual harassment and pornography at work

When many Washington, D.C. residents think about sexual harassment, they may not think about sexually explicit materials that may constitute harassment. This could be many things, but generally, sexually explicit materials are photos, or anything similar, — of pornographic nature. These images are not allowed in the workplace. Despite this, some employees do engage in inappropriate online activity during work hours.

When an employee is engaging in inappropriate activity, this behavior could result in another employee feeling sexually harassed. This may happen intentionally, such as when an employee shows another employee pornographic content. Or, it could happen unintentionally. For example, an employee walked by and witnessed another employee viewing pornographic content on his or her computer.

In 2003, individuals with the organization Business and Legal Reports questioned 474 human resource professionals about pornography and sexual harassment. Of the 474 professionals, two-thirds of the group admitted to finding pornography on employees’ computers. Incredibly, more than 40 percent of these human resources personnel discovered the pornography more than once.

This study shows that pornography viewers were likely reprimanded the first time for their Internet activities. However, this did not deter more than 40 percent of them from engaging in the behavior again. In addition, a monthly report from Message Labs in March of 2004 concluded that 70 percent of Internet traffic to pornographic websites took place during daytime work hours. These statistics are troublesome- since it seems that this may lead to an increase in sexual harassment accusations in the workplace.

Some victims of sexual harassment in the workplace may not feel inclined to report the behavior, for fear of retaliation or unfair treatment at work. Victims may want to speak with a sexual harassment lawyer to discuss their options for taking action.

Source: Covenant Eyes, “Pornography Statistics – In the Workplace,” accessed on Jan. 13, 2015

MSPB rights of federal employees who retire in lieu of removal

Federal employees can only appeal to the Merit Systems Protection Board (MSPB) in certain situations. Federal employees who are removed from their jobs generally may seek reinstatement and back pay at the MSPB. However, we occasionally encounter people who decide to retire rather than challenge a proposed removal and are asked what impact retirement will have on them. The answer is that federal employees who elect to retire may still pursue their case at MSPB but their decision to retire before removal will cause MSPB to issue a show cause order requiring them to establish jurisdiction. Because MSPB jurisdiction extends only to removal cases where the removal was involuntary, federal employees who retire in lieu of removal will need to establish that they were constructively discharged — forced to quit — in order to continue with their case. This is not an easy burden to uphold.

If you are facing removal or considering retirement, contact Alan Lescht and Associates today. Ask for advice and counsel before making critical decisions about your employment.

Exploitation of undocumented workers: They still have legal rights

A recent article in The Tennessean looked at the issue of employers’ failure to pay undocumented workers. The article highlighted the protections available to such workers when their employers exploit them.

According to a 2004 study by the Urban Institute, undocumented workers made up about 5 percent of the U.S. workforce. Although it is illegal for employers to hire undocumented workers, they are bound by the Fair Labor Standards Act to provide minimum wages, overtime pay, and other protections once they do. Further, there is no legal residency requirement to file a complaint in American courts, which means that even illegal workers can file complaints against employers failing to comply with the Fair Labor Standards Act.

The Worker’s Dignity Project-a Nashville-based nonprofit-seeks to educate immigrant workers of their rights and assist them in securing those protections.

Many immigrant workers, both legal and illegal, report that some employers neglect to pay them properly for their work and then threaten deportation if they complain. Complaints filed in the U.S. District Court for the Middle District of Tennessee showed a variety of claims, from accusations of failure to pay overtime wages to painters, to exploiting Mexican migrant workers through federal guest worker programs.

According to a Nashville attorney who represents such workers, employers sometimes threaten to call police or immigration authorities and then continue to work immigrants without paying them. Because of the situation of such workers, it is easy for employers to fail to pay full wages and come up with excuses.

Some advocates say the problem is more widespread than is readily visible, since many undocumented workers do not come forward.

According to an Immigration and Customs Enforcement spokesman, the primary focus of the agency is not to find and deport illegal workers, but to prevent employers from knowingly hiring, exploiting and trafficking illegal workers.

Programs similar to the Workers’ Dignity Project exist in other cities, such as Austin, Texas and Long Island, New York.

Advocates for immigrant workers say that such exploitation is not only contrary to basic human rights, but that it also depresses wages, benefits and working conditions for all workers.

Source: The Tennessean, “Immigrants turn to courts when wages aren’t paid: legal, illegal workers are protected from threats, exploitation,” Brandon Gee, 25 Jan 2011.