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.

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.

Tip sharing: Is it legal?

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.

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.

When can a federal employee appeal a forced retirement to MSPB?

We frequently consult with longtime federal employees who are towards the end of their careers and find themselves dealing with a new and unpleasant supervisor who makes their work life hell.  By the time they get to us the situation at work is bad.  Either the supervisor has issued discipline, rated them unacceptably, or placed them on a PIP.  We are frequently asked if they can claim that they were forced to quit and then pursue a claim against the agency at MSPB.

MSPB rules hold that in order to state a claim for involuntary retirement, also called a forced removal or constructive discharge, the employee must establish that the retirement was the result of intolerable working conditions.

However, MSPB applies this rule narrowly.  It requires that the employee must show that the agency’s efforts to force the employee out were the result of improper acts by the agency and a forced removal will not be found where an employee retires “because he does not like agency decisions such as a new assignment, a transfer, or other measures that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant … that he feels he has no realistic option but to leave.”  Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013).

There are many avenues available to address problems faced by longtime federal employees.  Don’t go it alone or rely on advice you find from the internet.  Call the employment lawyers at Alan Lescht and Associates, P.C. if you face these issues and we will put our many years of experience to work for you.