Mar 10, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

Filing Workers’ Comp for Stress and Anxiety—What Federal Employees Should Know

Most federal workers are familiar with the workers’ compensation program, operated by the Office of Workers’ Compensation Programs (OWCP). The OWCP allows for workers who suffer a work-related injury to obtain medical and income-replacement benefits while they are unable to work. What fewer people know, however, is that federal employees can also obtain workers’ compensation for mental health disorders as well. Read on to learn more about when you can get workers’ comp for stress and anxiety. If your federal employment is responsible for causing or exacerbating a mental health condition, you may be eligible for workers’ compensation benefits. At the Law Office of Aaron D. Wersing, we proudly help government employees who were injured on the job obtain the benefits they need and deserve. With extensive experience handling a wide range of workers’ compensation cases, including many involving mental health diagnoses, the Law Office of Aaron D. Wersing is well-equipped to effectively handle your claim. Stress and Anxiety in the Workplace Stress Stress is the body’s normal response to emotional or physical tension. In some cases, stress can help you overcome obstacles that you may not have otherwise been able to overcome. However, in larger amounts, stress can be detrimental to a person’s physical and mental well-being. According to a recent survey done by the American Institute of Stress, 80% of workers experience high levels of stress in the workplace. And roughly a quarter of all participants indicated that their job was the primary source of their stress. Of course, this may not come as news, as every job can occasionally be stressful. However, there is a point where the everyday stress of a job crosses the line and becomes something more damaging. Anxiety Generalized anxiety disorder is a mental health condition in which someone displays excessive anxiety or worry on most days, for a period of at least six months. Generalized anxiety disorder often seriously interferes with someone’s ability to live their life the way they intended. For example, common symptoms of a generalized anxiety disorder include the following. Panic attacks are another form of anxiety disorder in which someone experiences unexpected periods of intense fear that come on quickly and reach their peak within minutes. Symptoms of a panic attack include: Panic attacks can be very scary and sometimes require immediate medical attention. Can You Get Workers’ Compensation for Stress and Anxiety? Yes, federal workers can obtain workers’ compensation benefits for stress and stress-related conditions such as anxiety. However, there are a few things to keep in mind when considering filing an application for workers’ comp for stress and anxiety. If you have a diagnosis of anxiety, you will have an easier time obtaining benefits than if you are basing a workers’ compensation claim on stress alone. However, you will still need to show that your anxiety was either caused by your job or that your job exacerbated your existing case of anxiety. Applying for workers’ compensation benefits for stress is even trickier because there is often no diagnosis. When it comes to getting workers’ compensation for stress, consider the following questions. 1. Is The Stress Severe? Regular, everyday stress is not the type of stress that the OWCP is concerned with. Stress is a normal part of almost every job, yet not everyone can rightfully file a workers’ comp stress claim. Thus, to be eligible, you must show that your occupational stress is severe, to the point where it is more than you can withstand. 2. Is Your Job Objectively Stressful? If you find your job to be very stressful, but your colleagues do not, you may have a harder time qualifying for workers’ compensation benefits. This is because you must show that your stress is objective to obtain benefits. This means that others in a similar situation experience the same level of stress. So, if you are particularly susceptible to the stressors of your workplace, you may have a harder time obtaining workers’ compensation benefits for stress. 3. Is Your Stress Job-Related? To succeed in any workers’ comp stress claim, you must show that your injuries (physical or emotional) are related to your occupation. Stress is no exception. In fact, it is actually more difficult to prove stress is job-related because most people have other sources of stress in their life. For example, the OWCP may claim that your stress was caused by genetic factors or issues outside the workplace. Are You Suffering Severe Stress or Anxiety Related to Your Federal Employment? We Can Help You If you are a federal employee and are currently suffering from stress or anxiety, contact the workers’ compensation lawyers at the Law Office of Aaron D. Wersing for immediate assistance. At our federal workers’ compensation law firm, we represent federal employees in all types of work injury claims—including those involving mental health conditions such as stress and anxiety. Unlike many other local employment law firms, we represent only federal employees, giving us an unparalleled knowledge of the laws and regulations that govern our clients’ cases. To learn more, and to schedule, a free consultation, give us a call today. You can also reach us through our online contact form.

Mar 6, 2023 | By Aaron D. Wersing | Read Time: 2 minutes | Wrongful Termination

Constructive Discharge vs. Wrongful Termination—What Is the Difference?

If you felt forced to leave your job because the environment was unbearable, the terms constructive discharge and wrongful termination may come to mind. While both terms relate to ending employment, the main difference between wrongful termination and constructive discharge is the person who ends the employment relationship. In constructive discharge cases, the employee terminates the relationship, whereas in wrongful termination cases, the employer ends it. In this article, we will explore what is constructive discharge and how to prove you were constructively discharged. What Is Constructive Discharge? You may be wondering, what is constructive discharge? Constructive discharge occurs when an employee resigns due to intolerable working conditions. Rather than being fired, the employee voluntarily quits because they feel there is no other reasonable alternative. Here are some common constructive discharge examples of working conditions that may be grounds for a constructive discharge claim: While it’s easy to define constructive discharge, proving it can be more difficult. How To Prove Constructive Discharge Quitting your job because of unfair treatment is not enough to bring a constructive discharge claim. This is how to prove constructive discharge: Intolerable work conditions can include sexual harassment, discriminatory practices, violent acts, illegal requests, and coercive or deceptive conduct. You do not have to prove that your employer intended for you to quit but only that their actions are what made you believe you had to resign and that any reasonable person would have done the same. When an employee voluntarily leaves a job, typically they lose the right to unemployment benefits, due process through their employer, and bringing a wrongful discharge claim. This incentivizes the employer to create an intolerable environment and force the employee out rather than firing the employee. How Long Does a Federal Employee Have to Bring a Constructive Discharge Claim? To file a constructive discharge claim with the Equal Employment Opportunity Commission (EEOC), federal employees have 45 days from the date the employee resigns, not the date of the last intolerable act or acts. There are different deadlines if you are bringing your claim through the Merit Systems Protection Board (MSPB), generally 30 days from the date of resignation. To ensure you do not miss the filing deadline or lose the opportunity to protect your rights, consult with an experienced federal employment lawyer as soon as possible. Contact Our Federal Employment Attorneys at the Law Office of Aaron D. Wersing Our attorneys will evaluate the events surrounding your employment resignation to determine whether you can bring a constructive discharge claim against your employer. We dedicate our practice to protecting the rights of federal employees. Let us fight for you. Contact us today for a free consultation by calling 866-690-8076 or filling out our contact form online.

Feb 28, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | Federal EEOC

How to Win an EEOC Complaint

Almost everyone these days knows that workplace discrimination is wrong. But few people know that they can fight workplace discrimination by filing an Equal Employment Opportunity Commission (EEOC) complaint. Winning before the EEOC can not only end whatever discrimination you’re facing, but it can also give you a wide variety of remedies to compensate you for your losses. These can include financial payments for your damages, reinstatement to the position you lost, or a promotion that you were wrongfully denied. But how do you win an EEOC complaint? We’ll cover a few basic strategies in this brief article. However, if you want more specialized legal advice or more advanced legal tips, then you’ll want to get professional legal help. First Things First: Filing an EEO Complaint There are several ways to file an EEO complaint. One way is to go to your employer’s human resources office. Another method is to file a complaint using the EEOC’s online public portal. If you prefer to take a more personal approach, you can file a complaint over the telephone or visit a regional EEOC office in person. You can even file a written complaint by mail. Whichever method you choose, make sure you file the complaint shortly after the discrimination happens. Although the deadline for filing an EEO complaint varies, you generally have only 45 days to contact an EEO counselor and begin the complaint process. If you wait past that time for filing an EEOC complaint, then it will probably be dismissed. Four Tips to Help You Win an EEOC Complaint Winning a complaint with the Equal Employment Opportunity Commission (EEOC) is usually a complex process, but there are certain steps that you can take to increase your chances of success. Tip #1: Gather Evidence As the future complainant, you have the burden of persuasion. And the key to meeting your burden is presenting convincing evidence. Therefore, you should collect and preserve any relevant documents, emails, witness statements, or other evidence that supports your claim of discrimination or retaliation. Do not wait until you file a complaint to start collecting documents. Instead, begin preserving evidence immediately after the discrimination starts and make it a regular habit. Tip #2: Be Prompt As we mentioned before, timeliness is essential for the EEOC. The time limits for filing complaints are strict, so be sure to file your complaint as soon as possible after the alleged discrimination or retaliation occurred. Respond to judicial inquiries or requests immediately. And ensure that you file any pleadings before the submission deadlines. It may sound like a straightforward piece of advice, but many strong complainants with compelling cases have failed because of missed deadlines. Tip #3: Be Clear and Concise It’s only natural that you’ll feel a lot of pent-up frustration and resentment toward your employer after weeks or months of discrimination. However, it’s essential that you do not file an overly long or rambling complaint. Make all your written statements straightforward and brief. Doing so will make you appear more credible and professional; that always makes a favorable impression. Tip #4: Seek Legal Counsel Even if you have a compelling case, you need to have a thorough understanding of the legal system to ensure the best possible outcome. However, most people have little understanding of the legal system, which puts them at a disadvantage against agency counsel. Attorneys spend years developing the particular skills necessary to make them effective representatives. They know how to file persuasive motions, request information via discovery requests, and conduct negotiations. Therefore, having an attorney represent you is critical. A good attorney can also provide invaluable advice and emotional support throughout the legal process. What Are the Chances of Winning an EEOC Case? It’s very difficult to know your chances of winning an EEOC case because no two cases are alike. Your chances depend on the facts of the case, the applicable law, and your ability to effectively argue your case. The best way to learn whether you have a chance of winning your EEOC case is by contacting an attorney. Trying to Fight Against Workplace Discrimination? Consult with One of Our Experienced Federal Employment Attorneys Today. Now that you know the basics of how to win an EEOC complaint, start your journey toward success by hiring an attorney. With their help, you will be able to prevail before the EEOC and recover the compensation you deserve. Yet not all attorneys are the same. To maximize your chances of winning, you need to hire an experienced attorney who focuses on federal employment matters. Here at the Federal Employment Law Office of Aaron D. Wersing, PLLC, our number one objective is to deliver outstanding results for our clients. We have decades of experience protecting employees against discrimination and unjust employer actions, so we know exactly what it takes to win before the EEOC. Don’t believe us? Take a moment to review our many client testimonials. We offer free case reviews to all potential clients, so call us at 866-612-5956 today. You can also contact us online.

Feb 17, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

What Are Adverse and Disciplinary Actions for Federal Employees?

Adverse and disciplinary actions for federal employees are different classes of punishments. Both actions are taken by an employer for reasons of performance or misconduct. Adverse actions include more serious punishments, while disciplinary actions often refer to less serious punishments. However, both can cause irreparable harm to your career and personal life. If you are a federal employee, disciplinary actions by your employer are something you need to take seriously. Consider consulting a successful federal employment attorney today to help you protect your rights. What Are Disciplinary Actions? Disciplinary actions for federal employees refer to the range of measures that agencies can take against you for allegedly violating agency rules, regulations, or standards of conduct. Your employing federal agency is almost always responsible for taking these actions. Disciplinary actions can vary greatly in severity, from a simple warning or reprimand to more serious measures, such as suspensions. Some common disciplinary actions for federal employees include: Various federal laws and regulations govern disciplinary actions for federal employees. A few key laws are the Civil Service Reform Act, the Federal Service Labor-Management Relations Statute, and the Privacy Act. These laws and regulations provide you with certain rights and protections, such as the right to a fair and impartial hearing, the right to appeal, and the right to representation by a union or an attorney. It’s important to note that disciplinary actions must be based on a valid cause, such as unacceptable performance, misconduct, or some violation of laws or regulations. In addition, any actions based on characteristics like your race, sexual orientation, or religion are illegal. You also have a few due process rights when receiving disciplinary action. Specifically, you have the right to make a response and receive a written notice of the action. What Are Adverse Actions? Adverse actions are a serious kind of disciplinary action taken by a federal agency against a federal employee. As with disciplinary actions, adverse actions always negatively affect your job, pay, or benefits. They also have a huge impact on your reputation and employability. Adverse actions can include, but are not limited to, the following: Adverse actions against federal employees are governed by federal laws and regulations, including the Civil Service Reform Act, the Federal Service Labor-Management Relations Statute, and the Privacy Act. Fortunately, these laws and regulations provide extensive rights and protections to federal employees. These include the right to a fair and impartial hearing, the right to appeal, and the right to representation by a union or an attorney. As with disciplinary actions, all adverse actions must stem from an act of misconduct or poor performance. In addition, federal agencies need to provide extensive due process procedures when they propose an adverse action against you. Specifically, you need to have at least 30 days’ advance notice of the action, an opportunity to respond to the proposed action, and the right to appeal it to the Merit Systems Protection Board (MSPB). Need to Defend Yourself Against Your Agency? Let Us Give You a Hand Whether you are facing an adverse or disciplinary action, you need to take it seriously. Even a minor reprimand can torpedo your chances of obtaining your dream position and leave you with a black mark on your record. With that in mind, you need to get legal counsel right away if your employer is proposing any kind of disciplinary action against you. At the Federal Employment Law Firm of Aaron D. Wersing PLLC, we are dedicated to preserving your rights. We will do whatever it takes to defend your good name. Furthermore, we will help you take action against discriminatory employers and other bad actors. Federal employment is a niche area, and most attorneys have little experience with it. However, we have decades of experience in federal employment issues. Don’t try to go it alone and jeopardize your career. Instead, give us a call at 866-612-5956 or get in touch with us online.

Feb 13, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

What Damages Can the MSPB Award?

If you’re a federal employee, you’ve probably heard about the Merit Systems Protection Board (MSPB). The MSPB is an independent agency that hears appeals from federal employees who have been disciplined or who believe they have been subjected to some other adverse personnel action, such as a demotion, reduction in grade, or termination. Its general purpose is to protect the rights of federal employees. Yet before you request an MSPB lawsuit, you need to know what you stand to win. Are you wondering, What damages can the MSPB award? If so, then take a minute to review this article. If you still have questions, contact a dedicated MSPB attorney right away to learn more about the damages you can recover in your case. Types of Damages You Can Recover at an MSPB Hearing In the context of a lawsuit, the word “damages” refers to the kinds of compensation that you can recover. There are several types of damages that you can seek in a lawsuit. Each one is designed to correct a particular kind of wrong, and not every kind of remedy is available in every case. Let’s take a closer look at each kind of damage available in the MSPB. Back Pay Back pay is by far one of the most common remedies available to an MSPB appellant. It is intended to compensate you for the pay you would have received if the adverse personnel action had not taken place. For instance, if your employer suspended you for 14 days, then you would be eligible to receive 14 days of pay if you prevailed in your MSPB appeal. You can also expect to receive some interest on the back pay. Compensatory Damages Generally speaking, compensatory damages attempt to compensate you for the actual harm suffered as a result of the agency’s incorrect actions. In an MSPB hearing, compensatory damages often include a lump-sum payment for out-of-pocket costs you incurred because of the unjust action. Medical bills, therapy costs, and relocation costs (stemming from an unjust termination) are all great examples of possible out-of-pocket costs that you can get compensation for. Originally, it was not clear whether the MSPB could award compensatory damages. However, the agency has repeatedly reiterated that it has the power to award compensatory damages in certain situations. Reinstatement Reinstatement is a common remedy if your employer demoted you or fired you. If the MSPB finds in your favor, they may order the employee’s reinstatement to their former position. Punishing Bad Actors In certain situations, the MSPB can take action against employees who retaliate against you for whistleblowing. Specifically, the MSPB can order an agency to take the following disciplinary actions to reprimand, suspend, demote, or even remove the offender. In fact, the MSPB can also prohibit the bad actor from working for the federal government for up to five years and fine them up to $1000. Attorneys’ fees If the MSPB finds that the employee’s appeal was meritorious, the MSPB may order the government to pay the employee’s reasonable attorneys’ fees. Types of Damage You Cannot Receive in an MSPB Hearing The MSPB is a unique kind of judicial forum. That means that there are some key differences from federal and state courts. Not all damages available in federal and state courts are an option before the MSPB. Punitive Damages Punitive damages attempt to punish a bad actor for particularly outrageous conduct. Punitive damages also serve to deter similar conduct in the future and are rarely awarded on their own. However, the MSPB does not have the authority to award MSPB damages. Nominal Damages Nominal damages are a type of damage you can receive in a federal lawsuit if you have a technical injury without suffering any actual financial loss. Nominal damages recognize that your employer violated one of your legal rights yet also admit that no actual harm was done to you. Thinking About Requesting an MSPB Hearing? Let Us Give You the Representation You Deserve. It’s important to note that the availability of damages and the types of damages that can be recovered will depend on the specific laws and circumstances of each case. In addition, you can appeal the MSPB’s decisions to a federal court, which may modify or reverse the MSPB’s award of damages. For all these reasons, you need to have an attorney represent you. And not just any attorney will do. You need a dedicated attorney with a sterling reputation and ample experience in federal employment cases. Fortunately, all of us at the Federal Employment Law Office of Aaron D. Wersing PLLC are ready to bring you outstanding and compassionate representation. More than that, we care deeply about protecting your federal career and preserving your legal rights. Unlike many other attorneys, we focus our practice on federal employment issues. That means we know exactly how to give our clients the most effective legal representation available before the MSPB. Don’t sacrifice your future. Call us at 866-612-5956 or get in touch with us online.

Feb 10, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Workplace Discrimination

Understanding Discrimination Hiring Practices: Passed Over for Promotion by Less Qualified Employees

When you’re expecting a promotion and have been passed over for promotion by less qualified candidate, it can be frustrating. You may be wondering why you were passed over in favor of someone else, especially if they aren’t as qualified as you are. If you ask your boss and don’t get a satisfactory answer, there may be a reason. Unfortunately, discrimination in the federal workplace is not a new problem. Being passed over for a promotion in favor of a less-qualified candidate is not uncommon either. If you suspect you’re the victim of workplace discrimination, you need to contact a skilled federal employment lawyer right away. Discrimination in Promotion or Non-Selection Federal employers can choose to hire and promote someone for numerous legitimate reasons. However, the law prohibits employers from passing on an employee if their motives are rooted in certain types of discrimination. Actions that are even somewhat discriminatory are unlawful. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating in any facet of employment, including hiring, termination, referral, promotion, etc. The Equal Employment Opportunity Commission (EEOC) is the agency that enforces these laws. Employers cannot refuse to promote or hire someone because of: Proving discrimination is not necessarily easy, but it’s not impossible. If you believe you were discriminated against, you have the right to take legal action against your federal agency. To better understand what workplace discrimination looks like, here are several other examples: If you are considering pursuing a formal complaint about your missed promotion, you need to act quickly. You don’t have a lot of time to initiate your EEO complaint. What to Do When You Are Passed Over for a Promotion? Employees who have experienced discrimination in their workplace have legal rights. You should start by asking the hiring manager or your boss to explain why you were not promoted. If they don’t give you a straight answer or your gut tells you there is something they are leaving out, consider digging deeper. This is an excellent time to contact an experienced federal employee lawyer. At the Law Office of Aaron D. Wersing, we focus on legal issues affecting federal employees. We have years of experience representing clients in workplace harassment and discrimination claims. There is no harm in contacting us to discuss your situation. We can evaluate your case and let you know what the best course of legal action is. Depending on the circumstances, your attorney may suggest you make a complaint about the alleged discrimination. This is when you want to pay close attention to conversations in your office. Look for patterns of discrimination. Some incidents may not be overt. Gather any text messages, emails, or other documents you have that could point to discrimination in the workplace. Understandably, you might be concerned about retaliation after reporting that you were passed over for a promotion by a less-qualified candidate. While illegal, retaliation does occur in workplaces, including federal agencies. If you reported discrimination or harassment and adverse employment action has been taken against you, it’s time to contact our office. Filing an EEOC Claim as a Federal Employee If you are considering filing a EEO complaint of discrimination against your agency, the process is unique for federal employees. Your first step is to speak with an EEO counselor at the agency where you work. Typically, you have only 45 days from the date of discrimination to contact them. You can then elect to process your case through traditional EEO counseling or an alternative dispute resolution (ADR) program. A qualified federal employment attorney can advise you as to which route to take in your specific case. In the event your dispute doesn’t resolve through one of these two methods, you have up to 15 days to file a formal complaint with your agency’s EEO office, which leads to a fact-finding investigation. Once they have completed this investigation, you have the choice to have the agency issue their decision through a final agency decision (FAD) or request a hearing before an EEOC administrative law judge. Depending on the outcome, you may later need to appeal by filing a civil action in federal court. Contact Our Federal Employee Lawyer Today When you’re dealing with being passed over for a promotion discrimination by a less qualified candidate, we can help you. If there is discrimination happening in your federal workplace, it’s probably not an isolated incident. Employers cannot discriminate against employees, nor can they retaliate if an employee reports an incident. To learn more about your legal options after being discriminated against, contact the Law Office of Aaron D. Wersing today.

Feb 3, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | FERS Disability

Is Federal Disability Retirement Income Taxable?

If you have been a federal employee and are seeking to receive disability retirement income, you might have to pay taxes on that income. This isn’t pleasant news, but the following article can help you prepare for what’s next. If you’re still wondering, is federal disability retirement taxable? Or if you have other questions regarding federal disability retirement, contact us today. Common Kinds of Federal Disability Retirement Income The first step federal employees should take to understand their tax liabilities on federal disability retirement payments is to understand what kind of federal benefits they’re receiving. Common retirement benefits a federal employee might receive include: The Office of Personnel Management (OPM) handles many matters related to FERS and CSRS payments. Some of the above-listed benefits are taxable, and some aren’t. For payments and benefits that are taxable, they are taxable at different levels. Is OPM Disability Retirement Taxable at the Federal Level? OPM oversees matters regarding FERS and CSRS disability retirement payments. Is FERS Disability Retirement Taxable at the Federal Level? Is FERS taxable? Some FERS disability retirement is taxable. Individuals can receive FERS disability retirement if they have certain characteristics, including: Recipients of a FERS disability retirement annuity do show these benefits as taxable income. Is CSRS Disability Retirement Federally Taxable? Some CSRS disability retirement is federally taxable. An eligible recipient of CSRS disability retirement must: CSRS retirement disability recipients also must pay tax on their benefits. Whether you are seeking CSRS or FERS retirement disability benefits, you have a limited amount of time to apply for them. You also have to follow specific rules to maintain them. This can be overwhelming when you are trying to handle a disability. An experienced federal employment disability lawyer can recover your benefits while you adjust to changes in your life. Income Tax Rules from Your State Can Differ While some of your disability retirement benefits might not be federally taxable, your benefits could be subject to state income taxes. Contact Our FERS Disability Attorney Today to Protect What Is Yours It’s stressful to determine how much vital income you can keep when you’re receiving benefits for a debilitating condition. But you don’t have to figure this out on your own. At the Federal Employment Law Firm of Aaron D. Wersing, PLLC, we have helped hundreds of federal employees with their employment issues. We have substantial experience, and we are passionate about helping federal employees. Let us help you. Contact us online or call us at 866-508-2158 for a free consultation.

Jan 16, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Federal EEOC

How to Prove Retaliation in the Workplace

The law protects all federal employees against discrimination and harassment in the workplace. And yet, many employees suffer all kinds of injustice after standing up for their rights. Countless other employees fear standing up for themselves because of the threat of retaliation. Unfortunately, retaliation in the federal workplace is common. According to the U.S. Equal Employment Opportunity Commission (EEOC), there were over 34,000 complaints of workplace retaliation in 2021. In fact, retaliation complaints made up 56% of all EEOC complaints filed that year. Given these facts, it’s important to learn how proving retaliation works. Read on to learn about the legal elements of retaliation. Contact a dedicated federal workplace retaliation attorney today if you have more questions about federal workplace retaliation or want legal counsel on your specific situation. How to Prove Retaliation Every successful retaliation claim requires meeting three elements. To prevail on your retaliation claim, you first need to prove that you either participated in protected activity or refused to obey an illegal or unethical act. After that, you need to show that your employer took some kind of adverse action against you. Finally, you must establish a nexus between your employer’s adverse action and your earlier protected activity. Let’s explore these elements in more detail. Participation in Protected Activity or Refusal to Carry Out an Illegal Act “Protected Activity” is a legal term of art that is commonly heard in discrimination cases. The most simple definition is any activity that receives federal or state legal protection. One great example is reporting discrimination. Federal civil rights laws prohibit discrimination based on certain characteristics. To encourage people to come forward and report discrimination, these civil rights laws grant protection to the act of reporting a violation. Other protected activities include things like: Protected activity also encompasses any resistance to an illegal order. For instance, it would be protected activity to refuse an order from your director to fire a subordinate because of his race. Finally, turning down sexual advances or taking action to protect others from sexual harassment generally constitutes protected activity. Adverse Action Against You by Your Employer Once you demonstrate that you participated in a protected activity, your next task is to prove you suffered an adverse action. Adverse actions include any negative actions against the employee by the employer. As such, they can take on a variety of forms. A few examples of adverse actions include: Although many kinds of adverse actions are obvious and blatant, others are more subtle. As federal anti-discrimination laws do not prohibit the employer from disciplining an employee for legitimate reasons, shady employers will often try to camouflage retaliation. For instance, your manager might say that he is laying you off because of “budget cuts” rather than your EEO activity. When adverse actions are conducted for seemingly legitimate reasons, it is best to hire qualified legal counsel to assist you. Connection Between the Adverse Actions and Your Protected Activity The final and most tricky retaliation element to prove is the connection or causality between your employer’s adverse action and your protected activity. Federal employment attorneys utilize three different characteristics to establish causality: Using one or more of these factors is vital to prove retaliation. Have More Questions About Retaliation in the Federal Workplace? Let Us Help Unlike other attorneys, the Law Office of Aaron D. Wersing, PLLC concentrates solely on federal employment issues. That means we have in-depth experience with virtually every issue that arises in the federal workforce. Besides our knowledge and experience, we also have a deep passion for serving the nation’s civil servants. We care about your rights and want you to have a long and fruitful federal career. Don’t go it alone against your retaliatory employer. Get the legal help you need so you can obtain the compensation you deserve. Set up a free initial consultation today. Call us at (833) 833-3529 or reach out to us online to start your journey toward justice.

Jan 13, 2023 | By Aaron D. Wersing | 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? The MSPB appeal process 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: 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 employment and whistleblower retaliation claims. Federal employees eligible to file an MSPB appeal include: 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, an MSPB 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 reason 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 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 The 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 changes, so check the MSPB website for the most up-to-date information. Pay attention to every detail on the appeal form Simple mistakes on your appeal form like an incorrect address, failing to sign, or not providing the accurate date of the action can cause delay or denial of your appeal. An MSPB attorney can be quite helpful with the filing process, ensuring all information is included and accurate. Tell a Good Story In 2019, the MSPB decided on 5,120 cases. Your appeal must stand out. Paint a clear picture of the adverse action with details and a theme. This is where MSPB attorneys are incredibly beneficial as they are trained and skilled at telling your story in a compelling way. Make Discovery Requests ...

Jan 11, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

Does Title VII Apply to Federal Employees?

Since its passage, Title VII of the Civil Rights Act of 1964 has served as the cornerstone of federal anti-discrimination law. It prohibits discrimination based on race, religion, sex, national origin, and color for most private-sector organizations, as well as state and local government entities. Fortunately, Title VII applies to all federal employees. However, Article VII’s applicability to federal employees may limit their ability to bring other kinds of lawsuits for certain claims. Read on to learn more about the current status of Title VII for federal employees. If you have more questions, get in touch with a knowledgeable federal employment lawyer right away. Understanding the Basics of Title VII Before going any further, it might be helpful to briefly review exactly what Title VII does. If Title VII applies to an organization, that organization cannot discriminate against any person with regard to any term, condition, or privilege of employment. Practically speaking, this means that any form of workplace discrimination is completely outlawed by Title VII. Terms and conditions of employment include things like: Obviously, enjoying discrimination protections in these matters is essential. Title VII and Federal Employees Once again, if you are a federal employee, you need not worry whether Title VII applies to you. It applies to all federal agencies, regardless of their size or main location. Title VII also applies to applicants for federal employment, regardless of their citizenship or immigration status. That said, Title VII does not apply to Tribal nations, and it does not cover independent contractors. There is one major difference between federal employees and private-sector employees worth mentioning. While private-sector employees can file lawsuits for discrimination under Title VII, they may also file lawsuits relating to illegal discrimination under other laws. This may be preferable in certain situations because different laws may allow a person to recover more damages than Title VII. Federal employees, on the other hand, may resolve discrimination-related lawsuits only through Title VII claims. In the landmark 1976 case Brown v. GSA, the Supreme Court held that the only judicial remedy for federal employees is Title VII. For someone who has suffered from discrimination and is considering whether to file a lawsuit, the implications of this decision are enormous. If you fail to file your Title VII lawsuit within a certain amount of time after the discrimination, the court will probably throw your case out. This will leave you without any ability to get justice. Two Hypothetical Examples of Title VII Discrimination There is no limit to the forms that discrimination can take. It can be obvious or subtle, constant or periodic. Consider the two following hypothetical examples of discrimination in hiring and termination matters. Example #1 A man with a background in tax law applies for a federal tax attorney position. He seems very well qualified and makes it through the interview process. During the security check process, the hiring manager learns that the applicant has a restraining order against his former ex-wife for domestic abuse. Because the hiring manager believes that only women can be victims of domestic abuse and that men should be able to “man up” and protect themselves, she decides to reject the male applicant. Example #2 A woman from a conservative Christian religious background applies to work at the United States Postal Service (USPS) and gets the job. Shortly after she starts work, her supervisor informs her that she must wear pants as part of the USPS’s dress code policy. The employee believes that donning pants violates her religious beliefs and requests religious accommodation so that she can wear something more conservative. USPS refuses to make any accommodation and terminates the employee instead. Still Wondering About Title VII? Concerned About Discrimination? Let Us Help You Today Chances are, you’re wondering whether Title VII applies to federal employees because you are a federal employee suffering from discrimination. If that’s the case, we have good news for you. You have rights. You do not need to simply put up with discrimination. But if you are the target of discrimination, you need to seek legal counsel right away. There are many lawyers today that you could hire. But it is critical you hire the best attorney possible. Ideally, you want an attorney with extensive experience in federal employment matters, outstanding customer service, and a track record of success. At the Law Office of Aaron D. Wersing, PLLC, we pride ourselves on protecting and defending federal employees from all types of illegal discrimination. We have decades of experience helping federal employees stand up for their rights and careers. If you retain one of our attorneys, we promise to do everything we can to help you enjoy a fair and equitable work environment. We will also make every effort to see that you receive just compensation for your losses. Don’t wait for your window of opportunity to pass. Our initial consultations are free, so there’s no reason not to talk with us about your case today. Call us right away at 833-833-3529, or reach out to us online.

Blog