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.

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.

EEOC: Sexual orientation discrimination is prohibited under Title VII

The EEOC recently ruled that sexual orientation discrimination claims may be brought under Title VII of the Civil Right Act of 1964. The Commission’s recent ruling in Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015), represents another significant victory in the hard-fought battle for the rights of the LGBT community.

The case arose after a man in Florida alleged that his employer, the Federal Aviation Administration (FAA) repeatedly failed to promote him to a frontline manager position because he is an openly gay man. Although the EEOC has not yet issued a decision on the merits of the discrimination claim, the July 10, 2015 decision held that the FAA is required to process Mr. Baldwin’s complaint of discrimination based on his sexual orientation, stating: “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex,” thereby creating an entitlement to protection under Title VII.

This ruling directly impacts federal employees because it applies to all federal agencies. In short, this decision affords federal employees the immediate right to be free from discrimination based on their sexual orientation. Many believe that the next step in LGBT rights will involve federal courts’ similar interpretation of Title VII to include prohibition of sexual orientation discrimination in the private sector but, at present, those waters remain uncharted.

Mr. Baldwin’s case represents a significant step forward for the LGBT community and for federal employees. If you believe that your federal employer has subjected you to discrimination based on your sexual orientation, you should immediately contact a federal employment attorney who will assist you in determining your rights under this changing area of the law.

Source: Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015) pdf

Can a federal employee appeal a forced retirement to the 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.

No MSPB rights unless retirement resulted from intolerable working conditions

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.  Contact Alan Lescht and Associates today if you face these issues and we will put our many years of experience to work for you.

What to do if you receive a cease and desist letter from your former employer?

On behalf of Alan Lescht & Associates, P.C. posted in Non-Compete Agreements on Friday, May 9, 2014.

Ten years ago very few people were asked to sign contracts that included non compete, non solicitation and confidentiality provisions. Today, that practice seems commonplace. And in today’s economy, we see people nearly every week who, after leaving a job on their own or by firing, receive a letter from their former employer threatening a lawsuit and/or demanding that the person either inform the new employer about the restrictive covenants, quit or stop working in their chosen field.

What to do if you get a letter like this?

First, take a deep breath. It is not the end of the world. Many restrictive covenants are written in such a way that they are so overly broad or unreasonable that they are not enforceable. Courts do not want you unemployed and so will take a very hard look at these agreements before putting you out of a job.

Second, look through your files and locate a copy of the agreement you signed. If you can’t find it, then politely ask your former employer to provide a copy of it to you.

Lastly, contact a lawyer who, like us, handles this type of work BEFORE you respond to your former employer or tell your current employer about the situation. I say this because it is important that you know whether there is any validity to the allegations made in the cease and desist letter and what your potential recourse is before you begin to tell other people about it or respond to the allegations.

The employment lawyers at Alan Lescht and Associates, P.C., provide advice and representation in matters involving non compete, non solicitation and confidentiality.

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.

Non-compete prevents CVS from hiring former Wal-Mart VP

Most are familiar with Wal-Mart’s success as a company, and its uncanny ability to drive smaller competing businesses into the ground. But people are not necessarily aware of the legal battles Wal-Mart engages in to protect its marketing strategy.

On December 15th, Wal-Mart won a court order preventing CVS Caremark Corp. from hiring the man who formerly served as Wal-Mart’s executive vice president. Wal-Mart claims that its former VP is bound by a non-compete agreement.

Wal-Mart hired its former executive VP in 2006 and formed a non-compete agreement with him in 2009 upon appointing him president of Northern U.S. division of Wal-Mart. The agreement prevents the former VP from working for competitors retailing more than $5 billion in revenue for two years after leaving Wal-Mart.

The agreement was reportedly made to prevent the former VP from disseminating confidential information concerning Wal-Mart’s pilot program involving small-format markets. The former VP had been the executive sponsor of Wal-Mart’s small-format plan, and had oversight of 1,312 stores in 19 states during his time with the company.

In a hearing concerning the contract dispute, CVS argued that Wal-Mart brought the former VP on because of his expertise in management rather than for his knowledge about Wal-Mart growth strategy, and that any knowledge he may have is outdated. But the judge ruled that the non-compete agreement was reasonable. Wal-Mart’s request was granted as a preliminary injunction, which will prevent CVS from making the hire until the issue is tried in early March.

In the area of pharmacy retail, Wal-Mart has established itself as a competitor with companies like CVS, Walgreens, and Supervalu. The company currently has over 4,000 pharmacies.

Wal-Mart announced its plans last October to open 30 to 40 small-format markets in 2012. Its small-format strategy will place it in direct competition with companies CVS.

Source: Bloomberg, “CVS Can’t Hire Ex-Wal-Mart Vice President, Judge Says,” Sophia Pearson; Phil Milford, 15 Dec 2010.

Contact Alan Lescht and Associates today if you need legal advice about a non-compete agreement. We can review your contract and try to negotiate more favorable terms for you.