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…

Q: If someone was arrested five years ago outside of work, and immediately put on indefinite leave of absence without pay, and then resigned a few weeks after the arrest before receiving any type of proposed removal, do you think this individual should say “Yes” to the question in Optional Form 306 today after receiving a tentative job offer from the federal government? A: You stated the arrest was five years ago, but did not indicate what happened as a result of the arrest. I am assuming you do not have a conviction, which would trigger reporting under Question 9. Question 12…

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…

Q: After an organizational change, I was reassigned to another division. The division director asked if I would like to be moved from a 2210 IT specialist series, to a 343 Management Analyst. Can she move me to another position that is outside my current series, even though there are plenty of job openings in my current series? A: The short answer is yes, the agency may re-assign you to a different series. In general, federal agencies are permitted to re-assign employees from one position to another to promote the efficiency of the federal service. See, 5 C.F.R. § 335.102. The agency should…

Q: I am currently an engineering technician NT-04 (802-GS-12) and would like to be promoted to a 1550/801 GS-13/14 Computer Scientist. I have met all of the training and experience requirements needed for the position. The duties and responsibilities I’ve performed over the last five years have been those typically fulfilled by personnel hired as a computer scientist or general or electrical engineer at the GS-13/14 level. A: The knowledge, skills and experience you have are not something that is contingent upon the position you are in, your position description, or series. However, those skills may not be recognized and compensated for if…

Q: I’m a federal employee running in a non-partisan local election. I have not sought the endorsement or support of any political party. However, a local political party has endorsed me and put my name on their mailer. None of my campaign materials, online activities, or fundraisers has mentioned this unsolicited endorsement. Is this a violation of the Hatch Act? A: The Hatch Act, 5 U.S.C. §§ 7321-7326, prohibits employees of the executive branch of the Federal government from participating in some forms of political activity. The U.S. Office of Special Counsel (“OSC”) is the Federal agency responsible for investigating and administratively…

Q: I am permanently disabled and I retired in February of 2012 with regular retirement, as advised by OPM. I am low on funds, and cannot afford my medication, so I contacted OPM and asked if I can change to disability retirement. They said it’s too late, is that true? A: For employees in Federal Employees Retirement Systems (“FERS”), an application to change your retirement to disability retirement may be filed within one year of your separation from employment, so long as you did not elect an alternative form of annuity with a lump sum payment equal to your retirement contributions. For…

Q: I believe I read somewhere that the Agency cannot place a federal employee on a PIP based on the evaluation/rating of a supervisor who is no longer an employee of the agency. Is this correct? A: There are no laws or regulations precluding an agency from relying on a performance rating issued by a supervisor who has left the agency. The U.S. Office of Personnel Management (“OPM”) only requires that the employee be under an established set of performance elements and standards for a given appraisal period, and that a supervisor have the necessary information to rate the employee. Government-wide…

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…

Many said it would never happen, but just as many big, private sector firms are ending their bring-your-own-device programs (BYOD, for short), the Department of Defense is starting one. DoD has announced a BYOD pilot program set to begin this summer. Security concerns raised by employees’ use of their personal devices for work purposes are widely discussed, but there remains little guidance for employees coping with the challenges likely to arise from a BYOD policy. In light of this development, let’s review how to work with BYOD as an employment benefit instead of an employment headache. Under most…

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