Navigating the EEO Process for Congressional Employees

Federal government employees have to follow a specific procedure to file an EEO complaint of discrimination or retaliation.  The EEO process for employees within the legislative branch of government is unique from the process for other government employees.

Where do I file my complaint?   

The Office of Compliance (OOC) is charged with processing EEO complaints for most legislative employees, including those employed by:

  • S. House of Representatives
  • S. Senate
  • S. Capitol Police
  • Congressional Budget Office
  • Office of the Architect of the Capitol
  • Office of the Attending Physician
  • Office of Compliance and
  • Office of Congressional Accessibility Services.[1]

What do I do first?

You must file a request for counseling with OOC within 180 days of the act of discrimination, retaliation, or harassment.  Identifying your claims is critical because only claims specifically listed in the request for counseling may proceed through the EEO process.

The counseling period lasts for 30 days.

What happens after counseling?

After the counseling period, you have 15 days to file a request for mediation with the OOC.   Mediation is a mandatory settlement conference between you and your employer.  During mediation, a mediator will attempt to resolve the complaint.

What do I do if my case doesn’t settle at mediation?  

If you do not reach a settlement at mediation period, you may file a lawsuit in federal district court.  You must file a lawsuit no earlier than 30-days after the end of mediation, but no later than 90-days after mediation concludes.  Alternatively, you may file a request for a hearing before a hearing officer at the OOC.

Should I request a hearing or file a complaint?

This is an important decision that depends on a variety of factors including the facts of your case; the defense arguments raised at mediation; and general case strategy.  Making this decision requires the expertise of a lawyer who has argued before both hearing officers at the OOC and federal district court judges.

The legislative branch process is very technical and separate from how EEO complaints are processed in the executive branch.  As such, if you are a legislative employee who has been subjected to discrimination; harassment; or retaliation, contact Alan Lescht & Associates, P.C. for assistance.

 

[1] Library of Congress (LOC) employees follow a different process.  Another blog post will discuss how LOC employees file EEO complaints.

D.C. Public Schools sued over discrimination

Employees face discrimination in the workplace for all sorts of reasons. Sometimes, a worker is treated differently as a result of his or her gender. Or, an employee may lose their job due to their race 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 of the reasons why workers experience discrimination, it must be identified and dealt with immediately.

A woman claims she was discriminated against and recently took legal action against D.C. Public Schools. 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.

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 she was discriminated against by school staff and administrators. 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. For some, figuring out the best path forward can be tricky, especially when their job is involved. However, turning to an attorney may help.

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

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. Call Alan Lescht and Associates, P.C. today at (202) 536-3315 or email Alan.

The argument for and against non-compete clauses

President Obama’s final term is coming to a close, and we find an article in Fortune about his October pitch to ban non-compete agreements, which the author says would “make the rich richer.”

The author primarily focuses on low-wage workers:

“Low-wage workers are precisely the group that will benefit from signing agreements not to compete, because they are the ones most in need of the training and life skills that a first job can provide.”

The author’s case assumes a direct tie from training and life skills to the existence of non-compete clauses in employment contracts.

According to this logic, a worker is hired, who is then trained in by his or her employer. After the training period is done, the worker quickly “jumps ship” to another employer for more pay. There’s no non-compete clause, so the employer is helpless to do anything about it. Therefore, that employer will simply choose not to train new employees.

The trouble with this logic, however, is that employers must train in all new employees for the job they were hired to do. Would employers suddenly forego training and opt instead not to hire? Would the lack of non-compete clauses in employment contracts be that competitively troublesome?

Perhaps.

But it is difficult to see how the absence of a non-compete clause alone would prevent employers from hiring unskilled workers, who must be trained in either way.

Dealing with a non-compete clause?

What the author of the Fortune article fails to mention is that employment contracts in general often serve the interests of employers, not employees. This assertion applies to non-compete clauses as it does to other aspects of employment contracts. All too often, a non-compete clause actually unfairly limits the employee’s ability to work. If you’re facing a dispute regarding a non-compete clause, call 202-463-6036 for legal help.

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 immigrant 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 Agreement 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.