Monthly Archives: October, 2010

EAPs are great tools for managers and subordinates

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Employee assistance programs (EAPs) have existed for many years in all agencies. For managers, they are available as a place to refer an employee who may have conduct or performance problems on the job or otherwise may be having a tough time. For employees with personal problems, they are free, competent and mostly confidential sources of help. All employees and supervisors should understand the basics of the programs to ensure maximum use and fulfillment of legal requirements. First, managers should know that agencies are required by law to have EAPs. Thus, it is not just some nice-to-have, optional employee benefit and…

Q & A Session – Poor Performer Accusation

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: I have been called a poor performer and my attendance and credibility has been questioned, which has created a hostile work environment. How do I handle this as a federal employee? A: I do not have enough information to answer this question. Generally, supervisors acting within the scope of their employment who accuse a subordinate of poor performance or attendance issues, even if the accusation is maliciously false, cannot be…

Q & A Session – Overtime While On Travel Status

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: What is the rule for paying overtime to an employee while on travel status? A: Pursuant to 5 U.S.C. § 5542(b)(2) and 5 C.F.R. § 550.112(g), official travel away from one’s duty station is considered hours of work, including overtime hours when applicable, if: the travel occurs within the regularly scheduled work week; or the travel includes the performance of work while traveling, is incident to travel that involves the…

Q & A Session – Retroactive FMLA

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: I have an employee who was out on sick leave, but never requested FMLA protection. Can an employee ask for retroactive FMLA? A: A qualified employee may use up to twelve (12) workweeks of leave during any 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her position.  5 CFR § 630.1203(4).  In order for an absence to qualify…

Q & A Session – Workday Requirements

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: What are the regulations for when a workday begins? Is it when you enter the building or your office? A: Generally, the head of each Agency establishes the work requirements for the basic workweek. Check with your human resources office to get a copy of the policy. Under the Fair Labor Standards Act (FLSA), any walking and waiting time that occurs after the employee engages in his or her first…

Q&A Session – Profane Language in the Workplace

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: Who can I talk to about an inspector making public profanity comments in a public building to me? As background, I am a contract security guard. An inspector was explaining something to my partner and when I asked a question he yelled at me and used profane language. A: I assume the inspector you mention is a federal employee. As a contract employee, you should report the incident to your…

Q&A Session – Challenging Classification and PDs

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: I have been working without performance standards and my position description, classification and grade does not accurately reflect what I do. OPM has advised that they cannot conduct a review of the agency’s classification program without first allowing the agency to address the issue. The agency has not taken any action. Do we have any recourse to address this issue? A: The complicated, arcane and outdated classification system does depend…

Q&A Session – Is It FMLA Abuse?

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: An employee tells coworkers that he will be taking off for a long weekend, but does not have seniority to receive leave and is on the work schedule for those days. The employee then calls in with an emergency and claims FMLA (Family & Medical Leave) for those same days. Is this FMLA abuse? A: The FMLA rules anticipate that an employee request a FMLA absence in advance. Recognizing that…

Q&A Session – Work Travel Time and TDY

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience. Q: Sometimes I am required to travel outside my normal duty hours to perform work at different base that may require the travel to start at 4:30 AM and return to my place of duty after 5PM. This isn’t on TDY but must be done in order to meet the contractors at the site they are working so I can provide COR over site. I have been told that all travel…

How to handle threatening behavior

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The issue of threats in the workplace is a serious matter for managers and for those employees who are subjected to the fear and intimidation that can accompany a threat. Managers have a duty to respond quickly and decisively. But when is a threat really a threat, and what action is appropriate? In the federal workplace, managers and human resources professionals use a five-part formula to determine how serious the threat is. This formula is often referred to as the Metz factors, a name taken from the court case that decided when a threat is a threat. The Metz factors…

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