| Read Time: 4 minutes | Federal Employment Law

Using Marijuana as a Federal Employee Still Has Consequences (Even if It’s Legal in Your State)

Country-wide adoption of recreational marijuana laws has some people wondering if the mandatory drug test prior to employment is a thing of the past. Unfortunately, without federal legislation on the issue, the answer is likely yes for anyone seeking employment in the federal government sector. Federal laws continue to classify marijuana as an illegal Schedule 1 drug, putting it in the same category as heroin, ecstasy, and LSD.  Despite widespread approval for the plant and state regulations allowing its recreational use, those subject to federal regulations must refrain from using the substance or face consequences. Recent Federal Cannabis News In 2015, the Office of Personnel Management (OPM) advised federal agencies that under federal laws on marijuana, it is considered a Schedule 1 controlled substance. The OPM also reminded federal agencies of the rules established in 1986 by President Ronald Reagan in Executive Order 12564, Drug-Free Federal Workplace. This order stated that: Federal employees must refrain from the use of marijuana; The use of marijuana, whether on or off duty, is contrary to the efficiency of federal services; and People who use marijuana (or any drugs currently illegal under federal law) are unsuitable for federal employment.  Since 2015, public acceptance of marijuana use has continued to increase. In February 2021, the OPM issued new guidance for federal agencies designed to relax the hiring practices related to past marijuana use. Acknowledging that marijuana remains categorized as a Schedule I controlled substance under federal law, the OPM told agencies that use or possession of marijuana should not automatically disqualify the person from applying for federal employment. Instead, the federal agencies must find a nexus between the employee’s possession or use of marijuana and its impact on the integrity or efficiency of the government. What Does This Mean for Federal Employees? The OPM’s new guidance outlines the process for determining whether federal applicants using or in possession of marijuana are suitable for federal positions. Factors that agencies should look at include: Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and Criminal or dishonest conduct.  As stated above, the OPM advised federal agencies that the existence of either of these factors should not automatically disqualify an applicant from consideration. Instead, agencies evaluate each individual applicant’s conduct on a case-by-case basis to determine whether their behavior will impact the integrity and efficiency of the federal government. The factors agencies must consider include: The nature of the position the applicant is seeking; The nature and seriousness of the applicant’s conduct; Relevant circumstances surrounding the applicant’s conduct; Contributing societal conditions; Absence or presence of rehabilitation; The recency of the conduct; and The applicant’s age at the time of the conduct. Additionally, the Federal OPM specifically noted that past marijuana use, including recently discontinued marijuana use, should be viewed differently than current or ongoing marijuana use. This case-by-case analysis applies not only to new applicants but also to incumbent federal government employees. Can I Use Marijuana If I Already Work for the Federal Government? You have completed the hiring process and been working for the federal government for several years. Now, are you allowed to use marijuana? Unfortunately, that answer is still no. The OPM reiterated that the mandates of Executive Order 12564, Drug-Free Federal Workplace, prohibiting the use of illegal drugs on or off duty remain in effect for all federal employees. Employees struggling with substance abuse issues should seek counseling and rehabilitation. Who is Considered a Federal Employee? Any job within the three branches of the United States Government—the judicial branch, the legislative branch, and the executive branch—is considered federal employment. The OPM reported in 2017 that the federal government employs at least 4.4 million workers. Areas of federal employment include: All military service members; Postal service workers; Department of Transportation; Department of Labor; Politicians and legislative staff; and The FBI. A common misconception about federal employment is that all federal employees work in Washington, D.C. However, this is not the case. In fact, the majority of federal government employees do not work in the D.C. area. Are There Other Limits on Marijuana Use in Legalized States? Marijuana use creates barriers for the federal employment sector, but that is not the only barrier. Student Loans Section 484(R) of the Higher Education Act of 1998 states that a student with a past conviction for possession of a controlled substance is not eligible for financial aid. Federal law still defines marijuana as a controlled substance. Therefore, a conviction for possession of marijuana can disqualify you from receiving any student financial aid. Purchasing a Firearm Federal law requires gun purchasers to fill out a federal Form 4473, which inquires about the unlawful marijuana use of the applicant. Because marijuana is still criminalized under federal law, any use of marijuana is considered unlawful. Thus, a marijuana user attempting to purchase a firearm may have his or her application denied. Furthermore, it should be noted that individuals who lie on Form 4473 can be charged with a felony. Such a charge carries a maximum penalty of five years in prison. Contact a Federal Employment Lawyer for Additional Details Navigating federal workplace requirements can be confusing and tricky, especially when federal law starkly differs from state law. Federal cannabis news may change at any time, but for right now, cannabis use still greatly impacts federal employment. Attorney Aaron Wersing has extensive experience in all aspects of federal government employment law. His familiarity with the intricacies of federal employment law can save you pain and frustration if you work in, or are applying for federal work. If you have questions, he can provide detailed explanations to address your concerns. Mr. Wersing knows that the process for protecting the rights of federal employees differs significantly from the private sector and he stands ready to fight for you. At the Law Office of Aaron D. Wersing, we are committed to protecting federal employees from having their rights abused. So contact us today to set up your free initial consultation.

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| Read Time: 4 minutes | Federal EEOC

Overview of Federal EEOC Complaint Process

No matter what your job is, you may encounter discrimination in the workplace during your career. There are several laws the Equal Employment Opportunity Commission (EEOC) enforces that protect federal employees from discrimination. But what is the federal EEOC complaint process? If you find yourself the victim of discrimination in the federal workplace, it’s important to understand your rights and how to enforce them with an EEOC complaint. Below is a breakdown of the 6-Step Federal EEOC Complaint Process. 1. Contact Your EEO Counselor Each agency has an equal employment opportunity counselor. Before filing a formal complaint with the EEOC, the first step of the federal EEO complaint process is to contact your agency’s EEO counselor within 45 days of the discrimination. Note that some agencies will use different terms for this office, such as the Office of Resolution Management (ORM) at the Department of Veterans Affairs.  The EEO counselor will provide information about how a federal EEO complaint works. At this step, your counselor will provide details about the EEO process, including approximate timelines and your appeal rights. They will usually ask for information about your claims and bases too. Where applicable, you may also have the option to go through alternative dispute resolution (ADR). This step is also when you must choose whether to file your complaint through the EEO, negotiated grievance, or the Merit Systems Protection Board (MSPB) processes, if applicable. Not all cases have this choice, but when you do, federal employees may choose only one of these two paths and the option first chosen is generally considered to be your election. If you’re unsure where you should file your federal EEOC complaint, consider consulting a federal EEOC lawyer. Understanding Which Laws the EEOC Enforces The EEOC enforces four federal anti-discrimination laws: Title VII of the Civil Rights Act of 1964, The Equal Pay Act of 1963, The Rehabilitation Act of 1973, and The Age Discrimination in Employment Act of 1967. Together, these laws protect against discrimination based on a number of characteristics, including race, color, sex and sexual orientation, religion or national origin, age, and disability. Additionally, the EEOC works to protect employees from retaliation by their superiors or agency. 2. Filing a Formal Complaint If you can’t resolve the issue through counseling or ADR, your counselor will provide you with a written Notice of Right to File Formal Complaint, and provide a final Interview. This notice gives you the right to file a formal complaint with your Agency’s EEO office within 15 days. Read the Notice carefully for instructions on where to send your complaint. Generally you can file your Formal EEO complaint by mail or email. Each complaint must be properly drafted to include at least Contact information for you or your representative; Contact information for the person the claim is against; and A signed statement describing the events you believe resulted in discrimination, including when they occurred. After you submit your complaint, will review it to decide whether to conduct an investigation. 3. Your Agency Conducts an Investigation If your Agency accepts your claims, your agency will have to conduct an investigation into the alleged discrimination. Once the investigation is complete, you may request a hearing before an administrative judge, or you can request an immediate final decision from your agency. 4. Hearing Before an Administrative Judge Like other court proceedings, an EEOC hearing involves presenting your case to an administrative judge. Each party also has the opportunity to conduct discovery to obtain additional information. At the end of the hearing, the judge will review the record and issue a decision about whether there was discrimination. In some cases, a federal employee may not need to request a hearing. Accordingly, hearings do not always happen as part of the federal EEOC complaint process. 5. Your Agency Issues a Final Decision Whether you choose a hearing or not, the final main step is your agency’s final decision. The agency will review the judge’s final order or the evidence from the investigation and notify you whether it found any discrimination. If there was discrimination, the agency may implement the judge’s orders or its own remedy. Because final decisions may not be in the employee’s favor, federal employees have the right to appeal a final agency action to the EEOC’s appellate division, the Office of Federal Operations (OFO). 6. Appealing to the EEOC You may appeal your agency’s decision to the OFO within 30 days of that decision. During the appeal process, the OFO will review the entire history of your complaint and the evidence in the record. The OFO will then issue its own determination of whether there was any discrimination. Having a federal EEOC lawyer is the best way to make sure your arguments are properly presented in this case. Contact a Federal EEOC Lawyer The federal EEOC complaint process looks long and stressful, but it doesn’t have to be. The attorneys at the Law Office of Aaron D. Wersing have years of experience representing federal employees in a variety of employment matters. If you’ve suffered discrimination and need help with your EEOC complaint, we can help. Contact us today online or at 833-833-3529 for a free consultation.

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| Read Time: 4 minutes | Federal Disability

How Federal Disability Works in 2021

One of the biggest perks of being a federal employee is having access to the government’s comprehensive benefits package. Currently, most federal employees receive benefits under the Federal Employees Retirement System (FERS). Although there are resources explaining FERS and how it works, they aren’t always as helpful as they could be. We frequently get questions from federal employees asking how to balance their medical and financial needs, and many times these employees have never heard of benefits such as disability retirement. If you are wondering how does federal disability work, read on (or reach out!). In this blog post, we hope to demystify federal disability to help you best understand your options. What Is FERS? FERS stands for Federal Employees Retirement System. This program is the modern disability program offered by the federal government. If you started your service earlier than 1987, your disability benefits will come from the Civil Service Retirement System (CSRS) instead. Most of these provisions for disability retirement are substantially the same under CSRS, so if you are a CSRS employee you can qualify for disability retirement as well.  When Am I Eligible for FERS Disability? Eligibility starts with your length of creditable service with the government. For employees covered under FERS, you must have at least 18 months of creditable federal civilian service to qualify. Note that federal employees covered under CSRS need five years of service to qualify. In addition,  Your disability must prevent you from “useful and efficient service” in your current position (in other words, you have a deficiency in your performance, attendance, and/or conduct); The expected length of the disability must be one year or greater; Your agency must be unable to accommodate your disability, either in your position or through reassignment; You must apply for disability before your separation from service or within one year after; and You must submit an application for Social Security benefits. Whether your disability prevents you from useful and efficient service isn’t always obvious. For that reason, many federal employees seek advice from a federal disability lawyer. Does FERS Include Short-Term Disability? No, FERS does not include short-term disability. FERS does not cover disabilities expected to last less than one year. Other than sick leave, annual leave, and your agency’s leave bank (if available), there are no specific benefits for short-term disability. However in many cases of a short-term disability, the employing agency may be required to provide a reasonable accommodation. Reasonable accommodations may include leave, job restructuring, telework, ergonomic equipment, or another option which would allow the employee to perform the duties of his or her position.  FERS Disability and Social Security As explained above, eligibility for FERS disability is partially dependent on the employee applying for Social Security benefits. So how does federal disability work when it comes to this requirement? Fortunately, you don’t have to receive approval for Social Security benefits to receive FERS disability; you just have to apply. You can be approved for both SSDI and FERS disability simultaneously. In such a case, you would generally receive your full SSDI benefit while receiving a reduced disability annuity from OPM.  Unfortunately, keeping track of all the eligibility requirements can be difficult, especially if you’ve never worked with federal disability benefits in the past. We’re here to help you understand the process and make it as stress-free as possible. Applying for FERS Disability As with other government benefits programs, applying for FERS disability starts with completing several forms. Generally, you must complete at least SF 3107 and SF 3112. Additionally, you will need to provide documentation that you applied for Social Security disability, and other supporting documents depending on your responses on the SF 3107 and SF 3112 forms. During this first part of the process, your supervisor will also have to provide some information about your agency, position, and accommodations made available to you (if any).  If you are still on agency roles and not separated, or are within 30 days of separation, you must apply through your agency. If you are more than 30 days separated, then you will apply directly to OPM. Once your application is submitted, the Office of Personnel Management (OPM) will review your eligibility before notifying you of its decision. What to Do If You Are Denied FERS Disability Benefits As a federal employee, you have a robust set of rights when it comes to your employment, including denial of benefits. In a case where OPM disallows your application for FERS disability, you have 30 days to file a reconsideration appeal with OPM. Note that on the reconsideration form, you may elect to submit additional information in support of your application. During this appeal, a reconsideration specialist will give your application a second review. If your reconsideration appeal is denied as well, your next option is an appeal to the Merit Systems Protection Board (MSPB). An MSPB administrative judge will review OPM’s decision to determine whether you are eligible for FERS disability. If the administrative judge also denies your benefits, you can appeal to the MSPB board. After that, you will have exhausted your administrative remedies, giving you the right to take your case to the United States Court of Appeals for the Federal Circuit. Losing FERS Disability Benefits Generally, once you’ve been approved for FERS disability you will keep your benefits as long as you remain disabled. However, OPM may require you to get periodic medical exams to continue receiving benefits. Accordingly, if you recover from your disability your benefits will stop. There are two other main reasons why you may lose your federal disability: Your income from wages and self-employment equals at least 80% of your base pay from the position you retired from; or You obtained employment in Federal service at an equivalent position. Additionally, remember that your standard non-disability FERS retirement annuity will start when you reach age at 62. As a result, your disability benefits will stop at that time and you will be switched over to regular retirement through OPM. Need Help with Your Federal Disability?...

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| Read Time: 4 minutes | FERS Disability

FERS Disability Retirement Eligibility (Are You Eligible)

Individuals often remind government workers of the advantages of their positions. But if you were for the federal government, you may at times feel trapped and without rights. This is especially true for workers who have a disability. Federal Employees Retirement System (FERS) disability eligibility is complex. Many federal employees are not aware of this program’s existence. Others, while aware, may lack proper guidance and feel hindered from accessing the benefit they are entitled to, and left without options. Attorneys skilled in assisting federal employees can help fight for your rights. Understanding Federal Employees Retirement System Disability Benefits Defining FERS  FERS stands for Federal Employees Retirement System and is a retirement plan. Most new Federal civilian employees hired after 1983 are automatically covered by FERS, whereas prior to this point most employees were covered under CSRS. Federal civilian employees also have a TSP retirement, however individuals must note that FERS and TSP (Thrift Savings Plan) are not the same. TSP is an optional retirement option, separate from your FERS pension. Understanding Federal Employees Retirement System Disability Eligibility  The United States government’s Office of Personnel Management provides a pamphlet regarding FERS disability retirement. However, it can often leave the reader more confused than confident in their understanding. FERS disability retirement eligibility is very complex. It  involves financial and legal information best analyzed by a lawyer for federal employees. The purpose of Federal Employees Retirement System disability benefits is to provide income to federal workers who: Have a disability expected to last at least one year; and Are unable to fulfill the responsibilities of their job as a result of the disability. Unfortunately, workers most entitled to FERS eligibility are often overwhelmed and facing many obstacles due to their disabling condition. Tackling Federal Employees Retirement System disability benefits may appear impossible. However, FERS disability retirement eligibility, when met, provides important rights. A Federal Employees Retirement System disability benefits lawyer knows how to fight for this right. FERS Disability Retirement Eligibility Requirements As stated above, an initial hurdle to obtaining FERS disability benefits includes proving that a disability impacts you to the point where you can’t be expected to adequately perform your duties for at least one year. That is just the start. In addition the worker: Must have paid into Federal Employees Retirement System disability benefits for at least 18 months; and Must not have declined a reasonable accommodation, such as a transfer to a job for which they were qualified, if the federal agency employing the person tried to accommodate their disability or move them to another department. Another critical item to note is that the worker must have applied for Federal Employees Retirement System disability benefits while still employed or within one year after separation from the job. Financial Impact After Proving FERS Disability Retirement Eligibility If the government approves your Federal Employees Retirement System disability benefits, the amount of your benefit will depend on intricate calculations. The amount of benefits is different for each individual. Calculating benefits currently includes an analysis of earnings at various points in the person’s career and an age review. An employee can get an accurate picture of available benefits by requesting a FERS benefits estimate from their agency. The Complexity of FERS Disability Retirement Eligibility The aforementioned is only a brief overview of examinations required regarding eligibility and a successful application for FERS disability benefits. Here some additional stipulations to note. The Injury  When determining disability, there are several medical considerations as well as exceptions. Common injuries that might support a claim for FERS disability benefits include: Back and neck injuries; Hand, shoulder, hip, or knee injuries; Eye injuries; and Amputation. Psychological conditions can also support a claim for disability benefits, though they can sometimes be trickier to document than some physical injuries. Essentially any mental or physical disability that impairs your ability to work may qualify, such as PTSD, depression, anxiety.  Alternate Job Offer Any job offer the government makes to the disabled party should be at the same pay level the person is receiving, or higher. It also must be within the same commuting area. Both of these requirements must be met to invoke the requirement that the party accept the offer, assuming it would actually accommodate the disability.  SSDI  Anyone applying for FERS disability retirement eligibility must also apply for SSDI (Social Security Disability Insurance ). However, it is not required that SSA approve the SSDI application. Other Work Income If the government provides the worker with FERS disability benefits, they cannot keep their federal job, as they proved an inability to perform the job due to a disability. However, they may be able to work in a private-sector job. There are strict income requirements regarding this option. Importance of Legal Representation for Federal Employees Retirement System Disability Benefits  Disabilities can cause tremendous stress. When a disability impacts one’s ability to work, the stress understandably increases. In some cases, those same workers begin experiencing discrimination, resentment, or retaliation in the workplace. Top-notch Federal Employees Retirement System disability benefits attorneys will offer relief and protection. Individuals should never forget that they have the right to: Seek legal advice,  Be free from retaliation, and Utilize legal protections in place. A federal employer may fail to acknowledge one’s disability or inform them of the rules regarding FERS disability retirement eligibility. Other times, the employer may discourage the worker from pursuing benefits. Also, workers may feel overwhelmed with applying for Federal Employees Retirement System disability benefits. If you find yourself in this situation, you should speak with a lawyer clients trust who is knowledgeable in Federal Employees Retirement System Disability Benefits. The Law Office of Aaron D. Wersing Attorney Aaron Wersing graduated from the Georgia State University College of Law and received the CALI Excellence for the Future Award. Since that time, he has continued a path of excellence as the founding attorney for the Law Office of Aaron D. Wersing. Aaron’s practice includes the evaluation and resolution of a diverse variety of federal employment matters. Aaron is an advocate who knows how to handle any...

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| Read Time: 5 minutes | MSPB

How to Win an MSPB Appeal (And What to Avoid Doing)

Thousands of federal employees file an appeal with the Merit Systems Protection Board (MSPB) each year. Over the past three years, only 3% of federal employees were successful. The success rate increases to 18% if you eliminate cases that settle before going to a hearing and those dismissed for procedural errors.  Below are some tips on how to win an MSPB appeal, but first you should understand how the appeal process works. What Is an MSPB Appeal? If a federal employee is subject to a major adverse action by a federal agency, such as demotion, suspension of 15 days or more, or removal, he or she can generally appeal to the MSPB (note that certain agencies and/or positions are not eligible for MSPB appeals, such as a Title 38 employee at the VA). The MSPB is a quasi-judicial federal agency. Its duties include resolving certain employment-related disputes between federal agencies and their employees.  What Is the MSPB Appeal Process? An appeal is appropriate only after the agency notifies the employee of the proposed action, the employee responds verbally or in writing in an attempt to mitigate, if desired, and then the adverse action is subsequently sustained against the employee.  Jurisdiction  Before filing an appeal, the employee must determine whether the MSPB has jurisdiction over the action and the employee filing the appeal.  The MSPB has jurisdiction to hear an appeal involving the following actions, but includes others as well: Performance-based actions, Reductions in grade or pay, Denial of within-grade pay increase, Suspensions for more than 14 days, Furloughs for 30 days or less, Denials of restoration or reemployment, Suitability actions, Reduction in force, and Misconduct actions. The MSPB will hear discrimination cases only if they are in connection with an action otherwise within MSPB’s jurisdiction. Some appeals will be heard only after you exhaust the procedures of another governing agency, such as veteran’s employment and whistleblower retaliation claims. Federal employees eligible to file an MSPB appeal include: Competitive service employees who have completed a probationary period; Employees in the excepted service, other than preference-eligible employees, with at least two years continuous service in the same or similar position; Preference-eligible employees with one year of continuous employment in the same or similar position; and Postal Service supervisors, managers, and employees engaged in personnel work with one year continuous service in the same or similar position. An MSPB attorney can help determine your eligibility to file an appeal. Filing the Appeal Timing Typically, you must file your appeal within 30 calendar days of the date of the action or within 30 days after receiving the agency’s decision, whichever is later. There are exceptions however, such as actions taken by the VA under 38 USC §714, which have a reduced deadline of 10 business days to file the appeal. If the appellant and agency mutually agree in writing, prior to the timely filing of an appeal, to use an alternative dispute resolution process, the time limit for filing the appeal is 60 days.  Format The format and contents of your appeal must meet all the MSPB’s requirements. To ensure you do this, the MSPB provides an approved form if you wish to submit your claim in writing, or you can submit your appeal online through e-Appeal Online. Hearing The MSPB will assign an administrative law judge (ALJ) to your case, who will request additional information and responses from you and the agency. The ALJ will address settlement as well, which may involve the MSPB’s MAP program. If the case does not settle previously, a hearing will take place to allow the parties and witnesses to testify. The ALJ will issue an initial decision, which becomes final 35 days later, unless a party petitions for review to the MSPB’s appellate division, known as the “Board”. Further appeal If you are dissatisfied with the ALJ’s initial decision, you may either file a petition for review to the Board or typically with the U.S. Court of Appeals for the Federal Circuit. Your appeal to the federal courts must be done within 60 days of the Board’s decision.  How to Win an MSPB Appeal? The MSPB says the most common reasons as to why employees lose their cases is because they fail to bring forth a proper case by misinterpreting the law or not providing important evidence. Here are some tips on what to do (and what not to do) to increase your chances of winning an MSPB appeal.  Request All Material Used By the Agency When an agency takes an adverse action against you, you have the right to review the material it relied on to make the decision. You should exercise this right and obtain all the material to build a strong case against the agency. To create a well-crafted argument, you need to know what information was used against you.  File on Time Timeliness of filing your appeal is of utmost importance. Do not miss the filing deadline Generally, you have 30 days from the date the action is taken against you to file your appeal. Although the MSPB may excuse late filing if you have a good reason and provide supporting documentation, this rarely happens. The MSPB processes thousands of cases each year, and it is incredibly strict about deadlines. Remember, your initial appeal form only needs to include the basics, such as the facts and legal issues of your case. The ALJ will request additional information after you file. The important thing is to get the appeal in on time. Do not file too early You can only file your appeal after the effective date of the action against you or after the agency issues a final decision regarding your performance or conduct.  File a Complete and Proper Form File with the correct regional or field office. You must file your written appeal with the MSPB’s regional or field office where your duty station is located at the time the action took place. From time to time the jurisdiction of the offices change, so check the MSPB website for the most up-to-date information. Pay attention to every detail on...

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| Read Time: 5 minutes | Federal Retirement

Applying for Federal Disability Retirement (5 Steps)

Federal employees who become disabled face significant stress. From handling pain and multiple doctor appointments to worrying about finances and an uncertain future, a federal employee can be overwhelmed. The last thing that a disabled federal employee should have to deal with is filing complex paperwork to apply for federal disability retirement benefits.  At the Law Office of Aaron D. Wersing, our federal employee disability retirement lawyers take the worry out of applying for benefits. We help our disabled-federal-worker clients so that they can focus on their health and their families. Our hands-on approach keeps our clients informed throughout the entire process, from completing the initial paperwork to the appeal of a benefit denial. We are experienced in all aspects of Federal Employees Retirement System (FERS) disability retirement benefits so that federal employees don’t have to be. FERS Disability Retirement Requirements To be eligible for the FERS disability program, federal employees must have worked in a covered position for at least 18 months. In addition, an employee must have become disabled while employed and the disability must be expected to last for at least one year. Importantly, however, a work-related injury or illness need not have caused the disability. Federal employees can apply for disability retirement benefits at any age. What Disabilities Qualify for Federal Disability Retirement Benefits? To qualify for federal disability retirement benefits, an employee must experience either a physical or mental disease or injury. The employee’s disability must prevent “useful and efficient service” in the employee’s current job with the federal government. Essentially, the federal employee must be unable to perform one or more essential job functions of their current position. If the employing federal agency can accommodate the worker’s medical condition, the employee may continue to work in his or her current position. In that case, the employee will not be eligible for federal disability retirement. Alternatively, if the employing agency can transfer the disabled employee to a different job, known as the accommodation of last resort, the employee will not be entitled to disability retirement benefits. The new job should be at the same grade or pay level and in the same commuting area. In short, the employee may apply for federal disability retirement only if the employing agency is unable to accommodate the employee’s disability. Five-Step FERS Disability Retirement Application Process There are five essential steps that a federal employee needs to follow to apply for FERS disability retirement. Step One: Apply for Social Security Disability Benefits Why? Because when a federal employee applies for FERS disability retirement, the employee must indicate whether he or she has applied for Social Security disability benefits. Remember, you do not have to be approved for SSDI, but you must apply. The applicant also must attach a copy of the Social Security application receipt or award notice to the FERS disability retirement application. If a disabled employee receives Social Security disability payments, the amount of federal disability retirement payments under FERS will be reduced. Importantly, if the Social Security Administration denies disability benefits, federal employees still may be entitled to FERS disability retirement payments. Step Two: Complete Standard Form 3107, Application for Immediate Retirement Form 3107 is available from federal personnel offices or online at www.opm.gov/forms/standard forms. Federal employees must file their application for federal disability retirement benefits while still employed with the government or within one year of their separation date.  The Application for Immediate Retirement is several pages long and asks for detailed information, including: Identifying information, Description of federal service, Marital information, Type of annuity elected, Insurance information, Other claim information, Payment instructions, Applicant’s checklist, Military service and military retirement pay information, Workers’ compensation information, and Applicant’s certification that all statements are true. Form 3107 also includes the Certified Summary of Federal Service, SF 3107-1. The employing agency completes this certification form to provide a history of the employee’s federal jobs, earnings, and FERS coverage. You can apply for FERS disability retirement before the agency completes this form. After the agency completes that certification, the employee must review and sign it, attesting that it is accurate. The agency also should complete the Agency Checklist of Immediate Retirement Procedures, which is part of Form 3107. In addition, depending on your responses to certain questions, supplemental documentation may be required, such as a marriage certificate, W-4 form, or a DD-214, for example. For guidance on how to complete the application, disabled federal employees can review the instructions that accompany the Application for Immediate Retirement. They may also read an informational pamphlet SF 3113 titled Applying for Immediate Retirement Under the Federal Employees Retirement System. Step Three: Complete Standard Form 3112, Documentation in Support of Disability Retirement Application Disabled federal employees need to provide documents that support their FERS disability retirement application. Standard Form 3112 includes five main forms, some of which are completed by the applicant and others to be completed by their physicians or agency. In general, employees use these forms to document their medical condition to show that they are disabled and  unable to perform their job duties.  The disabled employee must complete Standard Form 3112A, Applicant’s Statement of Disability. On that form, the applicant describes his or her disease or injury and how it affects current job duties. The applicant then lists the physicians and dates of treatment that can support his or her claim of disability.  Next, the federal employee must ask each doctor to complete Standard Form 3112C, Physician’s Statement. The employee should also provide each doctor with a current job description. With that job description, each doctor can state how the employee’s disease or injury affects the employee’s ability to work. In addition to completing the form, each doctor must enclose medical documentation of the patient’s medical condition on letterhead stationery. Doctors must provide copies of all medical reports detailing the patient’s symptoms and history, diagnostic tests, diagnosis, treatments, and therapies. The doctors also must indicate if and when the employee will recover. Finally, if the doctors place any restrictions on...

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| Read Time: 5 minutes | MSPB

MSPB Appeal Process and How to Get Started

The Merit Systems Protection Board (MSPB) is the quasi-judicial agency responsible for overseeing the federal merit system. This system establishes rules and procedures related to the hiring, firing, and promotion of federal employees. The MSPB appeal process is an important part of federal employment because it provides a process for employees who have suffered certain kinds of adverse employment action to seek remedies. Below is an overview of the MSPB Appeal Process as well as a helpful infographic. The Law Office of Aaron D. Wersing focuses on helping federal employees resolve a variety of issues related to their federal employment. If you’ve been fired, suffered from discrimination, retaliation, or otherwise faced workplace issues, we can help you file your claim with the appropriate federal agency. The MSPB Appeal Process In general, the MSPB appeal process is very similar to what you would experience during a lawsuit. Instead of a trial, however, the parties ultimately present their cases during a hearing before an administrative judge. The eight major steps in the process are outlined below. 1. The Employee Files the MSPB Appeal Technically, the first step in the process occurs when a federal agency makes a personnel decision that negatively affects the employee. The MSPB most commonly hears these kinds of cases, which include suspensions of 15 days or more, terminations, and demotions. After such an action is sustained, the federal employee may file a formal appeal with the MSPB. Employees can file appeals online through the MSPB’s e-Appeal Online service. Generally, employees must complete this step within 30 days of the adverse action prompting the appeal. However there are exceptions, such as adverse actions taken by the Department of Veterans Affairs under § 714, which shorten this deadline. This is just one of many deadlines that will come up during the process. Hiring a federal employment lawyer will ensure that you don’t miss any of these crucial deadlines. 2. Judge Assignment and Acknowledgement Order Within a few days or weeks of the initial filing, the case will be assigned to an administrative law judge (ALJ). The judge issues a document called an Acknowledgement Order. This order creates a timeline for the case and provides certain instructions about what each party must do next. 3. The Agency Responds to Appeal Shortly after the ALJ issues the Acknowledgement Order, the federal agency must provide a file of their case to the judge and the employee. This file contains the agency’s initial response along with other documents relevant to the case. 4. Status Conferences After receiving the agency file, the ALJ schedules one or more status conferences. At these conferences, the parties discuss the issues involved in the case, including any potential settlement or mediation efforts. It is possible that an MSPB case will end here if the parties reach an agreement. If the parties are engaging in settlement talks, the ALJ may order a case suspension. This suspension freezes the proceedings while the parties complete certain tasks. Case suspensions usually last 30 days, and the administrative law judge has discretion to grant a 30-day extension if necessary. With regard to settlement, the parties may mutually agree to one of the MSPB’s mediation programs, such as the MSPB’s Mediation Appeals Program (MAP). Once both parties upload the signed MAP election forms, the appeal is taken off the docket pending the outcome of settlement negotiations.  5. Discovery Just like in a trial, the parties engage in a discovery period to gather information in support of their case. In addition to documents, audio, or video, the parties may obtain sworn testimony through depositions. Other than the hearing, this may be the most important step in the process because it offers the employee the chance to obtain relevant evidence directly from the federal agency. 6. The Parties Provide Pre-Hearing Submissions and Attend Pre-Hearing Conferences In the MSPB Appeal Process, the hearing is where the parties present their cases before the ALJ. Before the hearing, each party will provide information about the documents and witnesses they plan to use. This information makes up the “pre-hearing submissions.” During the pre-conference hearing, the judge may do several things: Explain the MSPB appeal process to the parties; Facilitate discovery; Identify and narrow down the relevant issues; Obtain certain agreements between the parties (called “stipulations”); Discuss the possibility of settlement; and Rule on the admissibility and relevance of witnesses and exhibits. During these preliminary hearings, the parties have a chance to provide support for the evidence and witnesses they wish to use. A large part of this step involves challenging and demonstrating a basis for the chosen evidence. 7. The Parties Present Their Cases at a Hearing Usually lasting one to several days, the hearing is very similar to what you’d see in a courtroom. The parties may perform examination and cross-examination of any witnesses, present exhibits, and other information to support their side of the appeal. At the end, the parties may also provide closing statements, either before the judge or in writing submitted for the record. 8. The Administrative Law Judge Issues a Decision After the hearing, the ALJ will review the evidence in the record and issue a final written decision. This can take anywhere from two to six weeks, or longer, depending on the complexity of the case. What Comes After the MSPB Appeal Process? After the administrative judge issues a final decision, the parties have the opportunity to file another appeal if the decision is adverse to them. This appeal is known as a Petition for Review, and must be filed within 35 days of the date of issuance of the administrative judge’s final order. The three Board members of the MSPB review these petitions and issue a final decision. A petition for review may also be filed online. If the MSPB’s initial or final decision is adverse to the employee, that employee gains the right to file a complaint in the Court of Appeals for the Federal Circuit. This remedy is available only after the...

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| Read Time: 5 minutes | Wrongful Termination

Can a Federal Employee Sue Their Employer?

Federal employees share many similarities with their privately employed counterparts. However, when a privately employed person is injured or wrongfully terminated, they can sue their employer. When the government is your employer, the question often arises: Can a federal employee sue their employer? The answer is yes, with some caveats. Because the federal government has sovereign immunity, federal employees cannot file lawsuits against it unless the government waives this immunity. Therefore, if a federal employee wants to sue the federal government, they can do so only in limited circumstances. In these limited circumstances, the exact methods for suing the government may not be actual lawsuits, at least at first. Federal employees have to go through certain administrative procedures before they can file a lawsuit in federal court, and thankfully many times a complaint can be resolved during these administrative procedures. Our federal EEOC attorneys will explain what you need to know. What Can a Federal Employee Sue the Federal Government For? Wrongful termination and workplace discrimination are the most common lawsuits employees bring against their employers. Federal employees can sue the federal government for either of these reasons, though the process is different than with a private employer. While private sector employees may bring lawsuits against employers in civil court, federal employees must first file a claim with an independent review body rather than the court system. The initial claim sets in motion the administrative process federal employees must exhaust before they can sue the federal government. Once the employee receives a final decision from the reviewing agency, they may file a lawsuit in federal court. When Can a Federal Employee Sue Their Employer? A federal employee can sue the federal government for discrimination, harassment, non-selection, demotion, wrongful termination, and for several other bases. For example, federal employee may have a claim to sue their federal agency if the employee Faced discrimination or harassment based on their race, sex, or other protected characteristic; Was fired or experienced discrimination because the employee “blew the whistle” on misconduct, abuse of authority, or illegal activity; or Had their employment terminated for an unfair or arbitrary reason which would not promote the efficiency of the service. These are only a few of the common claims a federal employee may have to sue their employer. If you believe you were wrongfully terminated or suffered harassment at your federal workplace, you should contact a federal employment lawyer who can advise you of your rights and possible avenues of recovery. Suing a Federal Employer for Workplace Discrimination There are several laws, enforced by the Equal Employment Opportunity Commission (EEOC) that protect federal employees against workplace discrimination and harassment. These laws include Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Age Discrimination in Employment Act, among others. Title VII is perhaps the most expansive, prohibiting discrimination on the basis of race, color, religion, national origin, or sex. Federal employees protected by these laws must go through a different complaint process compared to private sector employees. First, federal employees must speak with the equal employment opportunity counselor at the agency where the employee works. Most employees know this department as their EEO office, although some agencies do use varying acronyms, such as the Office of Resolution Management (ORM) at the Department of Veterans Affairs.  Before filing a formal complaint, the employee must participate in either counseling or in alternative dispute resolution (ADR), usually mediation. If the employee can’t reach a resolution, they may then file a formal complaint with their federal agency. Unless the agency dismisses the complaint, they will then investigate the claims of discrimination and issue a Report of Investigation (ROI), along with a notice of right to request a hearing before an administrative judge (AJ) of the EEOC or a final agency decision. After hearing the case, the AJ submits an initial decision to the agency. The agency then issues a final decision indicating whether it agrees with the AJ’s conclusion and will implement the order. After receiving the agency’s final decision, an employee can file a lawsuit in federal civil court. Properly exhausting administrative remedies is necessary for obtaining review by a federal court. Hiring a federal employment lawyer to guide you through the process will ensure that you do not miss any deadlines and that your case is as strong as possible. Suing a Federal Employer for Wrongful Termination Wrongful termination occurs when an employer fires someone for any reason prohibited by the law. Firing an employee based on discrimination or in retaliation for something the employee did are examples of wrongful termination. Wrongful termination can also occur when employees are forced out on trumped up charges or coerced to resign. Filing a Wrongful Termination Claim With the exception of Title 38 VA employees and certain others, wrongful termination claims are usually filed with the Merit Systems Protection Board (MSPB), though employees may file these claims through the EEO process or union grievance as well. Employees may file a claim only with one of these options, generally, the one you elect first; discussing these options with a federal employment attorney will help you determine which is best for your situation. Appealing Wrongful Termination to the MSPB After filing an appeal with the MSPB, the employee engages in the discovery process with the agency, during which time each side gathers information to support their case. Information gathering may take the form of interrogatories, requests for admission, requests for the production of documents, or depositions. An experienced federal employment lawyer will be familiar with this process and can help you gather the right evidence during the discovery process.  After discovery, the parties attend a hearing in front of an Administrative Law Judge (ALJ). Each side presents evidence and testimony that supports their case. Keep in mind that during this entire process, your attorney can negotiate with the other side to attempt to reach a settlement. If you and your employer can reach an agreement, it may be possible to...

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| Read Time: 4 minutes | Federal Retirement

Can You Lose Your Federal Retirement If Fired?

In addition to competitive pay, federal employees enjoy good benefits and a generous pension. What’s more, federal employees with at least one year of service have significant rights with respect to their job security. Federal employees have a reputation for being hard to fire because of these rights and the corresponding processes. Nevertheless, agencies may fire federal employees for a variety of reasons, including poor performance, misconduct, or downsizing. If you’re a federal employee, you’ve probably wondered, can you lose your federal retirement benefits if fired? How Federal Retirement Benefits Work The Federal Employee Retirement System (FERS), administered by the Office of Personnel Management (OPM), awards retirement benefits to eligible employees. FERS covers employees who started their service with the government after January 1, 1987. The Civil Service Retirement Act (CSRS) covers federal employees who started working for the government before that date. FERS is a retirement program that provides benefits from Social Security, a Thrift Savings Plan (TSP), and a Basic Benefits Plan. The first two are transferable to other jobs if a federal employee leaves before retirement. These retirement benefits fully vest in employees after five years of service, though annuities won’t begin until an employee reaches minimum retirement age (MRA). For example, the MRA for employees born in 1970 or later is 57. Although the eligibility rules vary slightly depending on service length, federal employees with more than 10 years of service receive an annuity immediately upon reaching their MRA. Employees with 5-10 years of service can receive an annuity starting at age 62.  Federal employees with at least 10 years of service can elect to take an immediate retirement or defer it. FERS reduces immediate retirement benefits by 5% per year for each year the employee is under age 62. Disability and early retirement may have slightly different timelines depending on the employee’s age and years of service. If you have questions about your federal retirement benefits, a federal employment lawyer can provide advice on your eligibility and the benefits available to you. Do Federal Employees Lose Their Retirement If They’re Fired? The short answer is no. Unfortunately, the misconception that you can lose your federal retirement if fired persists even among federal employees. Many employees incorrectly believe that they will lose their federal retirement benefits if the agency fires them. However, the truth is that federal employees whose retirement benefits have vested are all but guaranteed to receive those benefits, subject to a few exceptions. Employees unaware of this may be tempted or pressured to resign if they know they are about to be fired. These employees are often under the wrong impression that by resigning, they can save the benefits they would otherwise lose. This was exactly the situation in Morrison v. Department of the Navy. In that case, the Department of the Navy alerted an employee that an adverse employment action was pending against him. The Department urged him to resign to avoid losing his retirement benefits. Ruling on the case, the Merit Systems Protection Board (MSPB) noted that retirement benefits earned over the course of a federal career “are generally available upon separation from federal service, even when the separation is agency initiated.” To be clear, this means that when an agency fires a federal employee—whether for cause, poor performance, reduction in force, or otherwise—that employee remains entitled to any vested retirement benefits. There are very limited exceptions to this rule (discussed below), but for the vast majority of federal employees, they will never be an issue. How Federal Employees Can Lose Their Retirement Benefits As mentioned above, there are only a few narrow circumstances in which a federal employee will lose their retirement benefits. Under 5 U.S.C. § 8312, federal employees forfeit their retirement benefits only if they are convicted of one or more specific federal crimes. There are more than 20 in total, each covering an act against the national security of the United States, including: Gathering, transmitting, or losing defense information; Espionage; Treason; Enlisting to serve against the United States; Aiding the enemy; Disclosure of classified information; and Perjury under federal law. Related statutory sections cover additional crimes that would render a federal employee ineligible for benefits. These include: Fleeing the United States to avoid prosecution; Refusing to testify before a federal grand jury about involvement with a foreign government or other interference with national security; and Falsifying information on an employment application about the employee’s previous association with groups advocating for the overthrow of the government. Federal employees who do not commit any of those crimes don’t have to worry about losing their benefits. Can Federal Employees with Voluntary Early Retirement Lose Their Retirement Benefits If Fired? The Voluntary Early Retirement Authority (VERA) allows government agencies to temporarily reduce the minimum age and service requirements for retirement benefits. Agencies usually use VERA to offer employees an incentive to retire voluntarily, often during a restructuring, downsizing, or reorganization. Rather than involuntarily reducing the number of employees at the agency, it may make VERA offers or Voluntary Separation Incentive Payments (VSIP) to willing employees. Unlike with FERS or CSRS, federal employees fired for poor performance or misconduct cannot take advantage of discontinued service annuities under VERA. However, they may still be eligible for a deferred benefit. Federal employment lawyers familiar with government retirement plans can help you assess your options. If you accepted a voluntary early retirement offer from a government agency, a federal employment lawyer can also advise you of your rights moving forward. Hire a Federal Employment Attorney The Law Office of Aaron D. Wersing has been helping federal employees with their retirement and disability benefits for many years. During that time, we’ve helped hundreds of clients reclaim their jobs, stop discrimination, and resolve other issues in the workplace.  If you resigned based on false information about the status of your retirement benefits, we can help. Contact us today or call us at 833-833-3529 for a free case review.

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| Read Time: 6 minutes | Federal Retirement

How Do I Calculate FERS Retirement With a Calculator?

Figuring out how to calculate FERS retirement can require some work. But luckily, we can help with calculating this for you. A FERS disability retirement calculator is exactly what it sounds like. It is a tool you can use to calculate the amount of payment you will receive if you retire due to a disability. Of course, this calculator tool is applicable only if you are a federal employee retiring through the FERS disability retirement program.  For immediate assistance, please don’t hesitate to contact or call (833) 833-3529 to reach our experienced FERS disability lawyers. How Do I Calculate FERS Retirement? A FERS disability retirement pay calculator works just as any other calculator does. You give the calculator a set of inputs and parameters, and the calculator gives you an answer. The output could be your annual payment (referred to as an annuity). Or it could be your monthly or weekly payment. On the other hand, your output could be the total amount of money you will receive over X amount of time (36 months, 20 years, etc). It all depends on what you ask the calculator to give as its output. It is up to you.  Many of the calculations depend on your high-3 salary. OPM defines your high-3 as the highest average basic pay you earned during any 3 consecutive years of service. Your basic pay is your basic salary paid for your position. This includes salary increases for which retirement deductions are withheld, such as shift rates. It does not include payments for overtime, bonuses, etc. Further, if one’s total service was less than 3 years, the average salary is figured by averaging basic pay during all periods of creditable Federal service. The best way to find your high-3 average salary is to get a FERS benefit to estimate from your Agency. This report will show the official figures that will be sent to OPM.  While the OPM website does not have a specific calculator webtool, they publish information on how they make the calculations online. Here, we summarize those guidelines. FERS Disability Computation If You Have Reached the Age of Retirement If you are age 62 or older when you retire due to a disability, the following FERS calculation applies. The calculation also applies if you meet the age and service requirement for immediate voluntary retirement and suffer from a disability. This calculation is known as an “earned” annuity since you have otherwise met the qualifications for retirement benefits. ‘ The calculation goes one of two ways. If you are 62 or older when you retire and have less than 20 years of service with the federal government, or are under 62 years old but qualify for immediate voluntary retirement, your annuity calculation will be 1% of your high-3 average salary for each year of service. Thus, if you serve eighteen years, your annuity is 18% of your high-3 average salary. Your high-3 average salary is the highest average basic pay (minus overtime) you receive for three consecutive years during your employment. If your salary tops out at $65,000 for three years, that’s your high-3 salary. If your annual salary was $55,000 three years before your disability, then $65,000 per year for only two years before the disability, your high-3 average salary is the average of $55,000, $65,000, and $65,000. If you are 62 years old or more and have at least 20 years of service to the federal government, your annuity calculation is different. Your annuity calculation is 1.1% of your high-3 average salary for each year of service. So if you have 20 years of service at this point, your annuity is 22% of your high-3 average salary. Because the calculations for disability retirement for someone 62 years old or older are the same as regular voluntary retirement, it generally does not make sense to apply for FERS disability if you are at least 62 years old.  FERS Disability Computation If You Have Not Reached the Age of Retirement For these calculations, the assumption is that you are under the age of 62 at the time of retirement and not eligible for voluntary retirement at that time. There are three tiers given: The first 12 months of receiving FERS disability payments; After the first 12 months of receiving FERS disability payments; and Once you reach age 62 (at this time, OPM will recalculate your annuity to match a regular FERS retirement annuity). For the first 12 months, your annuity calculation will be as follows: Your base annuity is 60% of your high-3 salary. If you receive social security, the total amount of your social security payment is subtracted from your FERS annuity as a 100% offset. If your “earned” FERS annuity is greater than this amount, your earned annuity will be your annuity payment. After the first 12 months, before you reach age 62, your base annuity calculation will be reduced to 40% of your high-3 year salary. If you receive social security, 60% of that amount will be drawn from your annuity. Just like the first 12 months, your “earned” annuity will be your annuity payment if that amount is greater than the base annuity (minus the social security offset). Once you reach age 62, FERS will recalculate your annuity from that point on. It will be the annuity you would have had if you were able to work until the day before you turn 62 and retired under FERS. In other words, the computation reverts to the one we outlined above. What Are Disability Annuity Reductions? In some situations, your disability annuity can be reduced due to elections made during the application process. The main situation where this happens is when you are married and have a survivor benefit election. Unless your spouse consents to you electing a smaller than “full” survivor annuity (which you establish at the beginning of your employment term), your annuity faces a reduction of either 5% or 10%. If you elect survivor benefits that are 50% of...

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