Q & A Session: Rights When Suspect Favoritism

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Q: What are my rights if I suspect favoritism in the hiring process? A: You could file a complaint with either the agency’s inspector general or the Office of Special Counsel (OSC) if it involves prohibited personnel practices. For instance, OSC investigates prohibited personnel practices, including allegations that an agency official: requested or considered a recommendation based on political connections or influence; obstructed anyone from competing for employment; influenced anyone to withdraw from competition in order to improve or injure the employment prospects of any person; gave an unauthorized advantage in order to improve or injure the employment prospects of…

Q & A Session : Factors Considered for Proposed Disciplinary Action

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Q: I am a federal supervisor, who recently proposed a disciplinary action for an employee. My supervisor is the deciding official. Is the deciding official required to complete their own separate analysis? A: The Federal regulations outlining the procedures for taking disciplinary actions (defined as suspensions of 14 calendar days or less) and/or adverse actions (defined as suspensions of greater than 14 calendar days, removals, or reduction in pay or grade) against a Federal employee require that an agency, in arriving at its decision, “will consider only the reasons specified in the notice of the proposed action and any answer…

Q & A Session : On Reasonable Accommodation

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Q: I have a couple questions about reasonable accommodation. Can an agency create a position to accommodate? Also, can an agency accommodate by reassigning an employee to a detail (a position that does not exist)? From the research I have done it states that reassigning an employee must be to a “vacant funded position.” A: Your research is accurate. Agencies are given significant flexibility in providing reasonable accommodations to their employees. It is within an agency’s discretion whether to create a position for which to reassign an employee or to place an employee on detail (essentially a temporary reassignment to…

Speaking Publicly, Take Two

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A few months ago, I wrote on the topic of how most federal employees who are disciplined for publicly speaking out are found not to have a First Amendment protection on their speech. I also noted that a case was pending before the U.S. Supreme Court that might be a game changer. I’m back to report on the result. First, a refresher on the state of the law as it stood before the Supreme Court ruled last month. Thirty years ago, the Supreme Court recognized that public employees, like all citizens, enjoy a constitutionally protected interest in freedom of speech.…

Q & A Session : Becoming a Supervisor via Position Rewrite

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Q: Can a non-supervisory employee, who is not a member of the bargaining unit, become a permanent supervisor via a position description rewrite?  Is there any recourse to such a change? A: Yes, your employing Agency is generally free to assign you duties, including supervisory duties, in a fashion which best fits the Government’s needs.  You probably have very minimal recourse to contest such a change.  Although your employing Agency might allow you to file a grievance regarding a change to your position description or supervisory status, if management has already decided to move to a supervisory position, you may…

MSPB works through furlough appeals

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It’s been about one year from the furloughs of 2013, and the Merit Systems Protection Board is making progress processing the approximate 32,400 appeals it received. That’s right, 32,400 employee appeals challenging their furloughs. That number is jaw-dropping when you consider that the MSPB has been averaging about 8,500 appeals annually before furloughs. With a furlough docket of that size, it is worth acknowledging a furlough decision. In sum, no surprises. This board decision, Dye v. Department of the Army, involved a U.S. Army Corps of Engineers (USACE) employee who was furloughed for six days from his cConstruction cControl position.…

Q & A Session: Being Overlooked for a Pay Raise/ Promotion

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Q: I feel I’m being overlooked for a pay raise/promotion. What are my rights? A: A Federal employee does not have a right or guarantee of being promoted.  Likewise, management has the right to assign work, which includes the right to select employees for promotion and to fill vacancies.  In doing so, management must comply with the Federal merit system principals, and management may not act with the intent to not hire or promote an individual because of his or her race, sex, age, religion, national origin, disability, participation in the EEO process, and/or whistleblowing activity. In the situation you…

MSPB works through furlough appeals

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It’s been about one year from the furloughs of 2013, and the Merit Systems Protection Board is making progress processing the approximate 32,400 appeals it received. That’s right, 32,400 employee appeals challenging their furloughs. That number is jaw-dropping when you consider that the MSPB has been averaging about 8,500 appeals annually before furloughs. With a furlough docket of that size, it is worth acknowledging a furlough decision. In sum, no surprises. This board decision, Dye v. Department of the Army, involved a U.S. Army Corps of Engineers employee who was furloughed for six days from his construction control position. He…

Q & A Session: Performance Ratings and Retirement

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Q: Can a federal employee retire having had an unacceptable performance rating at the time of retirement? A: Yes, so long as a federal employee meet requirements of whichever retirement mechanism applies to him or her, the employee can retire having an unacceptable performance rating at the time of retirement. Keep in mind, if you receive an unacceptable rating at the end of your performance improvement plan (PIP) and you subsequently receive a proposed personnel action (i.e. proposed removal or proposed demotion) because of any alleged poor performance, you can resign but the SF-50 memorializing your separation from the federal…

Q & A Session: Duty Not In Job Description

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Q: Can you advise what should be done if a critical and permanent duty is measured and rated but is not listed in a job description? A: The Office of Personnel Management (“OPM”) says in its position classification regulations that you should open a conversation with management about amending your position description. If you are unhappy with the results from that conversation, you can have the issue determined by filing a grievance under either the administrative or the negotiated grievance procedure applicable to you and your agency. This may or may not result in a change to the position description.…

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