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…
Browsing: Disputes
Q: If I resign, would I have no recourse with MSPB? A: Generally not. An employee-initiated action, like resignation, is presumed voluntary and outside of the Merit System Protection Board’s (MSPB) jurisdiction. Freeborn v. Dep’t of Justice, 119 M.S.P.R. 290, 294 (2013). However, if the federal employee presents sufficient evidence to establish that the action was obtained through duress, coercion, or shows a reasonable person would have been misled by the agency, the presumption of voluntariness is removed. Green v. Dep’t of Veterans Affairs, 112 M.S.P.R. 59, 63 (2009). The employee has the burden of proving the MSPB’s jurisdiction by…
Q: I have an EEO Complaint and I designated a representative to represent me. Initially, my representative was not employed. However, my representative recently began to work in EEO office of another agency. The Agency’s representative is now asking my representative if she would have a conflict of interest representing me. Can she be my representative? A: In some cases, a representative can be disqualified for having a conflict of interest. As the Code of Federal Regulation states: “[i]n cases where the representation of a complainant or agency would conflict with the official or collateral duties of the representative, the Commission or…
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…
Q: Can an individual sue OPM for letting her personnel information get hacked? A: Yes. A suit could be brought alleging a violation of the Privacy Act of 1974 by OPM for failing to protect information contained in a system of records. Specifically, an agency is prohibited from disclosing “any record which is contained in a system of records by any means of communication to a person. . . except pursuant to written request by, or with the written consent of, the individual to whom the record pertains,” subject to exceptions which are not applicable in this case. See, 5 U.S.C.…
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…
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…
Federal workers are fortunate. They have several legally defined processes available to them to complain about workplace treatment, theoretically free from reprisal. Most employees in the private sector have none. For complaints made by employees in the private sector regarding hours of work, office location, a work assignment, or a colleague or supervisor who is treating you disrespectfully, the usual response is: “If you’re not happy here, you can leave.” Feds have multiple processes and forums to lodge workplace complaints. One such process, the administrative grievance process, has been viewed poorly by feds in the past. But I think it…