Author Debra Roth

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

I thought I’d written my last column this year in which I offer advice on being interviewed by an Office of Inspector General. We litigated the two widely reported recent Veterans Benefits Act (VBA) cases before the Merit Systems Protection Board in which two career senior executives with stellar careers were demoted by the Department of Veterans Affairs based on an OIG report that turned out to be wholly unreliable. It became clear in the lead up to the two MSPB hearings that a major reason the report was so unreliable because of the testimony the OIG elicited from witnesses…

This is my third consecutive column on your rights in an OIG investigative interview. My first column on this subject discussed whether you have “a legal right” to see the complaint made against you or be told the details of the allegations that comprise the complaint, know the identity of the person who lodged the complaint, or have a right to be represented in the interview by an attorney. In my second column, I explained your right to be informed about whether you were legally obligated to answer OIG questions and how to know when you are legally required or…

It always amazes me how federal employees will let themselves be interviewed by federal law enforcement without even a basic understanding of their rights. The employees usually believe that they did nothing wrong, so the OIG interview will be harmless. Wrong. The OIG community is banking on you not knowing or understanding your rights as a means for gaining an advantage in an investigative interview. And they will gain that advantage in most instances because the uninformed subject of the investigation is an easy target. (See part 1 here). Simply believing you did nothing wrong and explaining so to the…

Most of the current government scandals are rooted in the results of an Office of Inspector General (OIG) investigation. Subjects of an OIG investigation have limited rights, but even so, knowing your rights can make a substantial difference in the outcome of an investigation into you. For starters, do you have a right to know who made the allegations against you or see the complaint? No. Also, don’t ask the OIG who complained about you. IG’s tend to be suspicious about why the accused wants to know who made the complaint. They think asking for an identity of the…

More than 30 years after enactment of the Civil Service Reform Act of 1978, federal managers and supervisors still complain that taking a performance-based action is too hard. Those complaints are ironic considering how employer friendly the CSRA is on performance actions. When I tell managers the real statutory rules for taking a performance based action and the type of review such actions undergo by the Merit Systems Protection Board, they universally express shock, accompanied by dropped jaws, accompanied by exclamations that their HR offices never told them what I’m telling them. Why is it that the federal…

In January 2014, I wrote about a Merit Systems Protection Board decision in Miller v. Department of Interior that found an agency’s geographic reassignment of an employee to be legally insufficient. OPM took issue with the legal standard for ordering an employee’s geographic reassignment that MSPB imposed on agencies through that case, and appealed the MSPB decision to the U.S. Court of Appeals for the Federal Circuit. A few weeks ago, that court issued a decision reversing the MSPB. I opined in my earlier column that it seemed possible that the use of geographic reassignments may be getting a fresh…

I recently provided training to federal managers on how to effectively manage difficult employees. I raised the issue of applying the Douglas factors to determine the appropriate penalty for a subordinate’s misconduct. I was struck by how many managers admitted that they heavily relied on human resources’ instructions as to what penalty was appropriate, with the primary emphasis being on how others had been penalized for similar misconduct. Not only is the wrong agency official doing the Douglas analysis, but there are 11 other Douglas factors that may be relevant to a manager’s penalty determination Managers who act as proposing…

Since 1980, civil service laws such as the Civil Service Reform Act of 1978 and Title VII of the Civil Rights Act of 1964 have been interpreted to prohibit discrimination on the basis of sexual orientation. Also, the Office of Personnel Management has interpreted the 10th Prohibited Personnel Practice (codified at 5 U.S.C. § 2302(b)(10)), which bans personnel actions based on conduct that does not adversely affect job performance, to prohibit sexual orientation discrimination. However, in a May 2014 report to the president and Congress, the Merit Systems Protection Board wrote that, despite the existence of Executive Order 11478, which…

I wrote a column in March 2014 about the legalization of marijuana in Colorado and Washington state. I opined in the column that although the states were legalizing possession and use, marijuana still remained covered by the federal Controlled Substances Act, and thus recreational use by a federal employee would pose a risk to a fed obtaining a security clearance or being found unsuitable for federal employment. Read the past column here. Now the Office of Personnel Management has issued a memorandum on the subject — confirming what legal specialists presumed would be the federal employer’s position. Use of marijuana…

When an employee of your agency is terminated from federal employment, does your agency have a policy on whether to controvert a claim for unemployment benefits made by the terminated employee? Do you know the agency’s policy? Frequently terminated federal employees file claims for unemployment benefits with state agencies. If you were the official responsible for the termination decision, human resources may ask you how you wish to respond to the claim. Knowing how most state unemployment offices will process the claim is helpful to deciding how to respond, along with understanding the interplay between a state unemployment process and…

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