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.

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.

Security Clearance Determinations

What factors are considered?

To be eligible to access classified information, the agency will consider a number of factors including:

  • Allegiance to the United States;
  • Foreign influence;
  • Foreign preference;
  • Sexual behavior;
  • Personal conduct;
  • Financial considerations, including falling behind on bills or loans;
  • Alcohol consumption;
  • Drug involvement;
  • Emotional, mental, and personality disorders;
  • Criminal conduct;
  • Security violations;
  • Outside activities; and
  • Misuse of Information Technology systems

Can security clearance be challenged after I am hired?

Yes, security clearance can be challenged or revoked at any time during employment. The agency will consider whether the employee voluntarily reported the information, was truthful in responding to questions, sough assistance and followed professional guidance, and has demonstrated positive changes in behavior and employment.

Facing revocation of your security clearance?

We have had success in assisting our clients with security clearance issues. These are just a few.

  • Department of Energy- Our client, a contract electrician, received a denial of access to classified information based on his submission of an EQIP improperly referencing an arrest from 23 years prior. We submitted a written response and then conducted a hearing before the Department of Energy Office of Hearings and Appeals. At the hearing, we demonstrated that our client never intended to deceive the government regarding his arrest and that his conduct did not create a danger or threat to national security. After receiving an unfavorable ruling from the Administrative Judge, we appealed and filed for review to the Appeal Panel at the Department of Energy Office of Departmental Personnel Security, and we persuaded the Appeal Panel to overturn the unfavorable ruling, find in our client’s favor, and held that our client’s behavior did not constitute a threat to national security. As a result, our client was granted access to classified information, and was able to keep his job which required the security clearance.
  • Department of the Navy- Our client received a letter of intent to revoke his security clearance based on allegations that he had mishandled sensitive information and had a disqualifying psychological condition because he suffered from anxiety and depression. We contested the proposal and filed a response demonstrating that the alleged mishandling of sensitive information occurred under unusual circumstances when the employee was tasked with an unfair workload by a hostile supervisor. We also established that the allegations regarding the employee’s psychological condition did not amount to a security concern. The Department of Defense Central Adjudication Facility agreed and restored the employee’s clearance.
  • USCIS- We represented a client whose security clearance (access to classified and Sensitive Compartmented Information) was suspended and then revoked due to his personal use of a government laptop in ways that violated policy and resulted in malware invading the laptop. We appealed the revocation, arguing that most of the client’s personal use of the computer did not violate policy, that he did not intend to violate policy or cause harm to the government, and that his understanding of the seriousness of his actions combined with his long history of exemplary government service indicated that he would never allow such a mistake to reoccur. The Deciding Official agreed that the violation was minimal, most of the violation was unintentional, and that the client was unlikely to ever allow recurrence. Thus, the Deciding Official reversed the revocation of our client’s security clearance and restored his access.

For assistance with security clearance matters, call Alan Lescht & Associates, P.C. at (202) 463-6036, or email alan.lescht@leschtlaw.com.

The In’s and Out’s of Suitability Determinations

We posted a news update last week about how Trump’s hiring freeze will affect new federal employees who have not yet been deemed suitable for employment. Read below to learn more about suitability determinations.

Who is required to undergo suitability determinations?

Positions requiring a suitability determination are those in the competitive service, positions in the excepted service where the employee can be noncompetitively converted to the competitive service, and career appointments to a position in the Senior Executive Service. The Office of Personnel Management (OPM) is tasked with making suitability determinations for new federal employees.

Making suitability determinations

The following factors are considered in determining whether an individual is suitable for federal employment:

  • Misconduct or negligence in employment;
  • Criminal or dishonest conduct;
  • Material, intentional false statement, or deception or fraud in examination of the appointee;
  • Alcohol abuse, without evidence of substantial rehabilitation;
  • Illegal use of narcotics;
  • Knowing or willful engagement in acts or activities designed to overthrow the U.S. government.

What else will OPM consider?

OPM may also consider the following:

  • The nature of the position for which the person is applying for;
  • The nature and seriousness of the conduct;
  • The circumstances surrounding the conduct;
  • The recency of the conduct;
  • The age of the person involved at the time of the conduct;
  • Contributing societal conditions;
  • The absence or presence of rehabilitation or efforts towards rehabilitation.

Can suitability be challenged after appointment?

Yes! OPM may initiate a suitability action at any time. OPM is required to notify an employee in writing of the proposed action, and allow the employee to respond in writing. You are permitted to hire a lawyer if you are facing a proposed suitability action.

Successful Suitability Cases

  • We were retained by a recent college graduate who received a job offer from the federal government. On his suitability questionnaire, he honestly disclosed his prior drug use and arrest for underage drinking. The government found him unsuitable for federal employment. Our firm submitted a response, arguing that the client had been completely rehabilitated. He graduated from college with honors, was an excellent employee at his prior job, and had a new group of friends. We also emphasized that recreational drug use was very common among college-aged people. The government reversed its decision and allowed our client to begin his job.
  • U.S. Customs and Border Protection – A federal employee with over 8 years of federal service contacted us after she received a proposal to remove her from her position and the federal service due to a negative suitability determination based on allegations that she had engaged in misconduct/negligence in employment and dishonest conduct related to her disclosures in her job application. We submitted a written response demonstrating that she had in fact provided honest disclosures and many of the cited incidents were verbal warnings that did not require disclosure. Based on this submission, the agency reinstated her and determined that our client had illustrated that she did not commit the infractions alleged.
  • Peace Corps – A federal employee contacted us after receiving a proposal to terminate his employment as a result of an adverse suitability determination based on allegations that he made material, intentional false statements on his declaration for federal employment. We submitted a response to the proposal demonstrating that the employee misunderstood a particular question and believed that he had responded truthfully on his declaration for employment. The agency overturned the adverse suitability determination and cancelled his proposed removal.

If you have questions about suitability determinations or if you are facing a purposed action, we can help! Call Alan Lescht & Associates, P.C. at (202) 463-6036, or email alan.lescht@leschtlaw.com.

Check back next week for a discussion of security clearance.

How to recognize signs of sexual harassment in the workplace

Sexual harassment is something no worker should ever have to experience. Unfortunately, it happens in workplaces all over the country.

It can be difficult to identify sexual harassment. Victims may feel helpless and embarrassed – and they may question what they are experiencing is truly sexual harassment.

What, exactly, does sexual harassment in the workplace look like? What behaviors are considered sexual harassment?

Let’s take a look at some types of actions and behaviors that may be considered sexual harassment:

  • Repeatedly asking a coworker out on a date
  • Making inappropriate comments about a colleague’s appearance
  • Inappropriately touching a coworker (rubbing, hugging, patting, purposely rubbing up against, etc.)
  • Sending suggestive emails or instant messages to a coworker
  • Displaying pornography or other inappropriate images or videos at work
  • Asking inappropriate questions about a coworker’s sexual orientation, sexual experience, etc.

Sexual harassment can occur between two colleagues or between a colleague and a superior. In either case, it is illegal.

When notified, employers should take immediate action to address sexual harassment. This type of behavior is illegal and employers can be held liable for failing to take action.

In certain cases, a victim may come forward and report sexual harassment to the employer. The employer may take retaliatory action against the employee by demoting or firing him or her. This is also illegal behavior.

It is advisable for victims to speak to an attorney who handles workplace sexual harassment cases. Victims should learn about their rights, legal options, and options for seeking compensation.

If you are interested in speaking to an attorney about what is happening in your workplace, please call 202-463-6036. Your consultation is completely confidential.

How to recognize signs of age discrimination in the workplace

Age discrimination lawyers

In a perfect world, employees would be hired and evaluated based on their knowledge, skills, and work ethic. Unfortunately this doesn’t always happen. Discrimination in its many forms can make for a toxic work environment – affecting the victim of discrimination as well as other employees and the workplace as a whole.

Age discrimination is one type of workplace discrimination. This type of discrimination occurs when an employer treats an employee unfairly because of the employee’s age. Unfortunately, age discrimination can be hard to prove, and sometimes it can be hard to recognize.

Here are some common examples of age discrimination in the workplace:

  • Promoting a younger, less experienced or less qualified employee
  • Paying older employees less than younger employees for the same job
  • Making jokes or comments about an employee’s age
  • Excluding an employee from certain meetings or activities because of his or her age
  • Suddenly giving an older employee a bad review or scrutinizing his or her work
  • Pressuring an employee to retire (or questioning an employee about retirement plans)
  • Using age-specific words in a job description (for example, “join our young and dynamic team”)

If you suspect that you are experiencing age discrimination, you should speak to an attorney. An attorney from our firm can initiate a full investigation of your case and help you determine a course of legal action.

Remember: Age discrimination is wrong and it is illegal – and victims may be eligible for monetary compensation.

Talk to an attorney today: If you have experienced age discrimination at work, you deserve to learn about your legal options. For a free phone consultation, please call 202-463-6036.

Are federal workers just faceless bureaucrats?

“Federal employees support our troops stateside and abroad, fight crime and terrorism and protect our borders. They combat forest fires, inspect our roads and bridges and ensure our aviation system is the safest in the world. They guard and enhance our national parks and lands, guarantee seniors receive their Social Security benefits and process and deliver mail to every address in every type of weather.”

The answer to the question posed in the title of this post is an emphatic “No!”

Kori Keller, in an opinion published on The Hill, laments President Trump’s executive order that put a hiring freeze on federal workers. We’ve covered this in our handy infographic on the hiring freeze, but Keller makes a few interesting points, such as that federal workers represent only 1.9 percent of the national workforce. And, contrary to Trump’s rhetoric about “draining the swamp,” these 1.9 percent of federal workers aren’t just in D.C. – they’re all over the country performing vital functions.

Think mail carriers and forest rangers and firefighters. It’s not “just” those who work in office settings (which, by the way, is also the setting of millions of Americans working in the private sector).

As we wrote on our infographic post (see link above), there could be many unintended consequences to federal employees, even those who still have jobs, which brings us to the next point in this post.

At-will employment in the federal sector?

If this executive order was the first step in the Trump administration’s efforts to “drain the swamp,” you’ll now find in the National Review a call to make all federal employees fire-able. “There shouldn’t be a permanent bureaucracy that can thwart the will of a president,” Grant Starrett argues. “Congress should pass a law to make all federal employees serve at will – just like Americans in the private sector.”

In his article, Starrett makes lots of references to faceless “bureaucrats,” as though they weren’t those who Keller defends. It’s one opinion against another, but when it comes to treating people with dignity, and not assuming they’re part of a swamp, Keller’s opinion and others like it should win out every time.

Read more:

Why the EPA could be federal workers’ ground zero

The Government Accountability Project might be busier now than ever before. The organization backs whistleblowers. In recent days, it has dealt with an influx of concerns and questions brought to them by federal workers facing the Trump administration. Take acting Attorney General Sally Yates’ firing as a prime example of the bad that can happen for refusing to follow executive orders.

Yates had ordered the DOJ not to defend Trump’s immigration ban. Trump fired Yates that same night. As Politico reports – and as you’d expect – the largest group of federal workers who’ve called the Government Accountability Project are those who “want to know what to do if they’re asked to violate the law.”

On that note, we turn our attention to the Environmental Protection Agency.

Trump’s nominee is a ‘leading advocate against the EPA’s activist agenda’

A Bloomberg article raises the possibility that lawmakers could decide to eliminate the Environmental Protection Agency, although the authors acknowledge that doing so – even in the Trump era – is easier said than done, owing to decades of regulations that stand in the way. In all likelihood, Trump and lawmakers will opt for a more straightforward route toward their goal of less environmental regulation.

On this route, Trump has an ally in Scott Pruitt.

Pruitt is Trump’s nominee to head up the agency. Though not yet confirmed, Pruitt would reportedly assist in “undoing” Obama’s environmental regulations. He’d also presumably pave the way for more coal plants. Pruitt’s background as Attorney General of Oklahoma and “leading advocate against the EPA’s activist agenda,” as per an archived version of his official website, would make him the man for the job.

To make a long story short

It’s not hard to imagine EPA employees in a bind, caught between carrying out the agency’s mission of environmental protection and following the new boss’s orders (and suffering the workplace retaliation that could come from refusing to do so). The EPA, in other words, could become ground zero for federal workers in other agencies nationwide who may soon face new bosses barking unreasonable – perhaps unlawful – demands.

Read more:

No such thing as nepotism in the Trump administration

Politico reports that the Justice Department has “blessed” the appointment of President Trump’s son-in-law Jared Kushner to a position as senior adviser in the White House, saying, in effect, that federal anti-nepotism law does not apply.

It seems to apply just about everywhere else – just not the White House.

What is nepotism, anyway?

Merriam Webster defines nepotism as favoritism based on kinship. In nepotism, a person in a position of power appoints or hires a family member wholly or in part because of those family ties.

In this case, Trump seeks to appoint Kushner to a senior adviser role, in which, among other things, Kushner would apparently work to resolve the Israeli-Palestinian conflict.

Is the President a public official?

Of course he is. Even the anti-nepotism law says so. In general, this law places hiring restrictions on public officials. And, yes, “public officials” includes the President and Congressional members.

Under 5 U.S. Code § 3110: “A public official may not appoint or employ […] in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.”

The language seems relatively clear, but like many laws (perhaps most), this one is subject to interpretation. It so happens that, in this case, the Justice Dept. interpreted the law in favor of the Trump administration. Its 14-page opinion argues that the law does not apply to the White House itself, as Politico reports, citing a 1978 law that gives the President wide latitude in appointing White House officials.

What does this mean for everyone else?

It now appears that Trump is free to appoint his son-in-law to a role in the White House, where the 36-year-old Kushner will presumably go from real estate developer to broker of peace among nations. Kushner’s “unwavering loyalty” to his father-in-law (as per Kushner’s Wikipedia page) will undoubtedly be a great asset to the new President.

But that doesn’t mean nepotism isn’t at issue here, at least where the law is concerned.

After all, it’s highly unlikely that Mom or Pop, as public officials in any other agency in any other place in the U.S., could so readily hire Son or Daughter to serve as a government employee in a similar manner. Doing so would likely violate anti-nepotism law.

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.