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 filed a case with Merit Systems Protection Board (MSPB), but I believe it will be dismissed for lack of jurisdiction. If the MSPB dismisses my case, can I appeal the discrimination claims to the Equal Employment Opportunity Commission (EEOC)? A: You have described a mixed case. So long as you raised your discrimination claim as a part of your MSPB appeal, you may continue with EEO processing if 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: If a disabled worker, hired under Schedule A (5 C.F.R. 213.3102(u)) authority, successfully completes the extended probationary period, does that time get credited toward retirement? Are there any pending cases or amendments to this regulation? Why do other federal employees get to count their time toward retirement? A: To my knowledge, there are no cases or pending amendments related to Schedule A, 5 C.F.R. 213.3102(u). With regard to the 2-year…
Federal managers: Who makes the decision about when to use sick leave? Is it always the employee? Do you ever suspect that the employee may be abusing sick leave, but you lack proof? Do managers have any control over this most basic employee entitlement? The answer is in the “leave restriction letter,” or as it’s called in some agencies, a “letter of requirements” or a “leave status letter.” By custom, employees may self-certify the first three days of any sick leave absence. After three days, an agency may require medical evidence to support the absence. When an employee is out…
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: If the government compensates an employee, who earns Law Enforcement Availability Pay (L.E.A.P.), overtime wages which the government now claims the employee is not entitled to, may the government recoup the unauthorized payments by withholding funds form a federal employee’s paycheck? A: Any federal law enforcement officer who receives availability pay (L.E.A.P.), generally may not receive any additional payment for unscheduled duty hours, or overtime. As such, any…
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience. Q: How should a federal supervisor handle a situation where an employee has voluntarily confessed substance abuse to the supervisor? Should the supervisor send the employee to an employee assistance program (EAP), talk to human relations staff, or report the employee to security staff? A: Substance Abusing Subordinates A supervisor who suspects substance abuse, or who has an employee confess substance abuse, has a particular challenge. First, the supervisor should be aware that current substance abuse,…
The underperforming employee is a common personnel issue facing federal managers. When a bad attitude accompanies poor performance, the employee becomes the one everyone wants to avoid, particularly the manager. These traits usually result in an employee who believes he can “negotiate” what work assignment he’ll do and by when he’ll get it accomplished. Sometimes, it’s simply passive resistance to work assignments and all kinds of excuses for why the work didn’t get done: “I forgot,” “I didn’t understand what you meant,” “I’m still working on it.” Sometimes the failure to perform a work assignment is an outright refusal, accompanied…
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience. Q: I was the respondent in an EEO (Equal Employment Opportunity) discrimination complaint. I gave testimony and provided evidence in my defense. I was not found in any way to have discriminated against anyone. However, I raised some issues about my superior and her mismanagement and her “threat” made to me. I also did not like the way the EEO investigators conducted themselves, though I was not found to have discriminated. Since the investigation, Ii have…
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience. Q: In an appeal to the MSPB (Merit Systems Protection Board), can the employee ask for money damages? That is, if the board decides the employee’s argument(s) prevail, can they award him money in lieu of getting his job back? A: Remedies Available at the MSPB If an employee prevails in an MSPB appeal, the MSPB administrative judge has the authority to award a range of remedies designed to make the employee “whole,” that is, to…
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience. Q: Please let me know what constitutes sick leave abuse. A: Sick Leave Abuse Explained Sick leave abuse is a broad and controversial subject that unfortunately is pervasive in the federal workplace. It occurs when an employee misrepresents that either he or she or a family member have an illness or medical condition that requires the employee to be absent from the workplace on an approved leave status to care for him or herself or the…
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience. Q: I have a pending case before the EEOC pertaining to disability discrimination in the Federal Sector. My understanding is that when the statutory time has elapsed I may pursue my case in Federal District Court. I have read that under the Rehabilitation Act I may be entitled to have an attorney appointed by the Judge to represent me. Can you advise me further regarding this entitlement? A: Pursuing an EEO Case in Federal District Court…