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 worked as a contractor for over nine years with 30 other contract employees. Recently three contract employees were made federal employees, but the rest of us were still contractors. Is it legal for the government to promote only certain employees? How does the government choose which jobs become federal positions? A: This question cannot be answered fully without knowing the hiring authority under which the other individuals became…
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: Can an employee in a higher grade level with a lower competitive level bump or displace an employee in a lower grade level with a higher competitive level in a reduction in force? A: “Bumping” is unavailable because you may only bump employees in lower tenured groups than you, rather than vice versa. However, you may be entitled to “retreat” rights, which means that you could displace an employee on…
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: Please provide me with the legal authority by which a personnel action can be authorized and issued for an employee who fails a PIP, is fired for poor performance and opts for a discontinued service or early retirement. A: The problem with an answer to your question is there is no specific legal authority. It used to be contained in the old federal personnel manual. The best I can do…
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…
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…
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…
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…
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…
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…
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…