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 consultation, give us a call today. You can also reach us through our online contact form.

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 the ADA apply to employers, including employment agencies and unions, with at least 15 employees. These laws also cover federal, state, and local governments. 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. Call us right away at 833-833-3529, or reach out to us online.

Dec 26, 2022 | By Aaron D. Wersing | Read Time: 5 minutes | Federal Employment Law

Security Clearance and Suitability Determinations

Whether you are a current or prospective federal employee, you will probably have to obtain and hold a security clearance. The federal suitability determination process for employees can seem like a black box. So federal employees naturally have many questions about the process, especially if they receive an unfavorable suitability determination. Read on to learn more about the security clearance process and suitability determinations made by the government. We will also cover what happens when you get an unfavorable suitability determination letter. If you have any other questions, consult a qualified federal employment attorney. How Does the Security Clearance Process Work? The federal government offers a meaningful career for many people. But for obvious reasons, the government needs to ensure that its own employees are stable, reliable, and loyal citizens. Without this mechanism, grave damage to national security and the functioning of the country could result. The government’s security clearance process has evolved over the decades to properly evaluate potential and current government employees. There are three national security clearance levels. Those three clearance levels are, from least to most secure: Each of these levels involves different levels of testing. The higher the security clearance, the more frequent and more thorough the testing for suitability determination. What Factors Affect a Suitability Determination? There are 13 factors that influence how the government evaluates a federal employee. Those factors are: Each one of these categories has specific conditions that, if true, may result in an adverse suitability determination. But there are actions you can take to help mitigate these negative conditions. Let’s explore some of these suitability factors in more detail so you can understand how the government makes suitability determinations. Allegiance to the United States Every suitability determination’s starting point is checking whether you have “unquestioned allegiance to the United States.” Disqualifying conditions related to this factor include: Obviously, all of these conditions are serious and seem clear-cut. Yet sometimes, well-meaning people can participate in an organization that has more malicious intentions. If you find yourself in a situation where you have an association with one of these organizations, you can mitigate the risk by showing you were not aware of the unlawful aims of the group and subsequently severed ties. You can also mitigate these concerns by showing that your involvement, even if intentional and knowing, was not recent. Emotional, Mental, and Personality Disorders For this category, government investigators will attempt to assess whether you have any emotional, mental, or personality disorders that make you unreliable or unstable. Some of the specific conditions that may disqualify you include: If your profile raises one or more of these concerns, you can mitigate those concerns by showing that you are currently healthy and that your emotional or mental instability was only temporary. Providing a recent opinion from a mental health professional stating your condition is cured or under control also helps. Personal Conduct “Personal conduct” is a vague phrase, so it’s a category worthy of further exploration. The government defines “personal conduct” as any behavior demonstrating “questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules” that could indicate a person might not protect classified information. Here are a few examples of personal conduct that would concern government investigators: If one of these conditions describes your past, you can take action to mitigate them. Specifically, focus on demonstrating that: Having an attorney by your side in this process is one of the best ways to maximize your chances of a positive outcome. A federal employment attorney will have extensive experience regarding these issues and can give you helpful pointers and tricks to round out your application. An attorney can also help you answer specific questions about how to respond to certain questions. How Can I Maximize My Chances of Obtaining a Favorable Suitability Letter? You can take a wide variety of actions to help your chances of passing a security clearance. For one, you can avoid any criminal activity and any group that may want to overthrow the government. Also, avoid using drugs that are illegal at the federal level. This includes marijuana. Although many states have legalized marijuana, the federal government still prohibits it inside and outside the federal workplace. Limit your alcohol usage as well. Legal incidents involving alcohol use and alcoholism are both grounds for disqualification. Additionally, you should be prepared to explain any involvement you have with foreign nationals. If you are a dual citizen, you cannot obtain a security clearance without giving up your other citizenship. When Do Suitability Determinations Occur? All prospective employees need to undergo a suitability determination before their first day of work. After that, recurring suitability checks continue every few years. If you have a top-secret clearance, you’ll undergo a periodic reinvestigation every five years. If you have a secret or confidential clearance, you’ll undergo a periodic reinvestigation once every decade. The government can also conduct suitability checks on federal employees randomly and without notice. What If the Government Issued a Suitability Denial Letter to Me? If the government has denied you a security clearance, you have the right to appeal. If you are a current federal employee, you can also appeal your agency’s decision to take away your security clearance. The best way to start your appeal is by assessing the government’s reasons for its actions. Then, hire an attorney to plead your case before the relevant authorities and collect evidence in your favor. How Long Does It Take to Obtain a Security Clearance? According to a 2015 Annual Report by the Office of the Director of National Intelligence, it takes federal employees about six months to obtain a security clearance. Top secret clearances can require a year to obtain, while confidential clearances generally require about four months. Does Every Agency Have the Same Suitability Requirements? Not necessarily. The Department of Homeland Security’s (DHS) suitability requirements differ from those of the Central Intelligence Agency. However, most security clearances are respected by other agencies. Have More Questions About Security...

Dec 19, 2022 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

What Federal Employees Should Know About Mental Health in the Workplace

Mental health in the federal workplace is a dynamic issue due to our society’s rapidly changing views about mental health. Not long ago, even mild mental health conditions could lead to office suspicion, hostility, retaliation, and removal from the service. Fortunately, things have improved significantly during the past few decades. There is more awareness regarding the treatment of mental health in the federal workplace and more understanding of the nature of mental illness itself. Despite those advances, many federal employees who struggle with mental illness are still in the dark when it comes to their rights and entitlements. Read on to learn more about your rights as a federal employee regarding mental health in the workplace. Contact a qualified federal employment attorney today if you have more questions or think you may be suffering from discrimination. Your Rights as a Federal Employee with a Mental Health Condition The most important thing to remember is that you are protected against discrimination and harassment based on your mental health conditions. Various laws also guarantee the right to keep your condition private, seek reasonable accommodation, and request unpaid leave to treat the condition. Protection Against Harassment and Discrimination Based on Mental Health Thanks to the Americans with Disabilities Act (ADA), individuals with mental health conditions receive significant civil rights protections. The ADA, which protects those with both physical and mental disabilities, prohibits discrimination and harassment against a person based on mental impairment. It also protects individuals who have had a history of mental illness or who are generally regarded as having a mental impairment. What do the ADA’s discrimination and harassment protections entail? For one, they prohibit your employer from treating you differently simply because of your mental illness. Discrimination can incorporate all kinds of different behaviors, including: The ADA also prohibits harassment against any federal employees because of their mental health conditions. Legally speaking, harassment is any offensive or unwelcome conduct that becomes so severe or pervasive that it makes your working environment hostile. Countless kinds of behaviors can contribute to a hostile work environment. A few examples include: None of these behaviors are acceptable or legal. If you are suffering from either discrimination or harassment, you can file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and receive significant monetary compensation. The Opportunity to Request and Receive Reasonable Accommodations The ADA further requires the government to make reasonable accommodations for individuals who have difficulties performing the essential functions of their job because of their mental health conditions. Under the ADA, an impairment or disability is any condition that affects a major life activity. And major life activities include all kinds of things, including eating, thinking, moving, and taking care of yourself. Consequently, virtually every mental health illness can qualify for some kind of reasonable accommodation. Reasonable accommodations can relate to virtually every aspect of your federal job. You can ask for a reasonable accommodation to your work environment or to a hiring process. In addition, you can seek to effect changes in the way you do your job. Provided your requested accommodation does not create an undue hardship on your employer or change the fundamental duties of your position, it will generally be considered reasonable under the ADA. The Right to Medical Confidentiality Although federal employees with mental health conditions may have to disclose those conditions under certain circumstances, they are entitled to medical confidentiality. Title 1 of the ADA requires employers to place mental health information on separate forms and medical files. In addition, those documents must be treated as confidential medical records. There are only three exceptions to this confidentiality requirement. First, your supervisor or director may obtain information regarding the ways in which your condition affects your work. Second, your employer may disclose your condition to first aid or agency safety personnel if you need emergency treatment. Finally, your employer may provide your information to adhere to a government compliance investigation. Want to Learn More About How to Prove Disability Discrimination in the Federal Workplace? At the Law Office of Aaron D. Wersing, PLLC, we dedicate ourselves to advancing the rights and welfare of federal employees with mental health conditions. The thought of any federal employee suffering from disability discrimination or harassment is simply unacceptable to us. As soon as you reach out to us, we’ll do everything possible to protect your rights. And if you have been harmed through disability discrimination or harassment, we will do our best to get you the compensation you deserve. Give us a call at (833) 833-3529 or contact us online.

Dec 9, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

How Long Does FERS Disability Retirement Last?

If you are currently on the Federal Employee Retirement System (FERS) disability retirement, you probably have a mix of relief and concern. You might be relieved because of the assistance that payments provide for your life. But you might be concerned because you are unsure how long your retirement will last. In general, many employees on FERS disability retirement can expect their retirement to last until age 62. However, there is no simple answer to the question of how long it will last. It depends on your age, health, situation, and disciplinary history. We’ll cover some of the basics here so that you have a general idea of what to expect. But if you have more questions about how the law applies to your specific case, contact an outstanding federal employment attorney today. How Long Will My FERS Disability Retirement Last? Most federal employees are eligible to remain on FERS disability retirement from the date they receive approval until the day they turn 62. At that point, your retirement will convert automatically from disability to typical federal retirement. That said, you are subject to occasional “check-ups” while on FERS disability. What Factors Can Affect Whether I Continue to Receive FERS Disability Retirement? Age is the biggest factor when it comes to your benefits. As we mentioned before, when you turn 62, you will no longer receive disability retirement. Another factor that comes into play is your health. While many federal employees have disabling conditions that are also permanent, other employees can recover over time. If you recover sufficiently from your condition, you may lose out on your benefits after undoing a periodic review. A third variable that affects your retirement is your current earnings. According to federal law, you can receive retirement benefits only if you have a physical or mental condition that prevents you from achieving your “earning capacity.” However, if you subsequently receive wages (either from another employer or from self-employment) that equates to more than 80% of the pay you received as a federal employee, you will be deemed as having achieved your earning capacity. That means your benefits will stop. Finally, your participation in other benefit programs can affect your benefits. For instance, if you decide to receive benefits from the Office of Workers’ Compensation Programs (OWCP), then you can no longer continue to collect retirement payments. Understanding Periodic Reviews by the Office of Personnel Management (OPM) After you begin your FERS disability retirement, you can expect to receive periodic reviews from OPM. For some, these reviews will come once or twice a year. Other employees on benefits may receive reviews more or less often. In any event, these reviews are critical for your continued benefits. During these reviews, OPM will send the retiree a short form to fill out. The form will inquire about the former employee’s current work activities. It will also request updated medical records for OPM to review. Having the right attorney on your side during this process can make all the difference for your disability retirement. For many retirees with permanent conditions, their updated medical records will support a finding that will allow them to remain on benefits. But depending on your medical status and the answers to the OPM review form, the agency may decide that you are healthy enough to work and terminate future payments. This kind of sudden monetary change can turn your life upside down. The Consequences of Losing FERS Disability Retirement Losing your FERS benefits has many consequences. As any FERS retiree can tell you, one of the major benefits of FERS disability retirement is the free health and life insurance coverage that comes with it. You may also lose your health and life insurance if you lose your retirement benefits. Other Benefits of Remaining on FERS Disability Retirement It’s also worth mentioning that while you are on FERS disability retirement, you will still accrue creditable service years. This will benefit you when your federal retirement kicks in at age 62. The calculation for your federal retirement is one percent of your highest salary over a three-year period multiplied by your years of creditable service. For instance, if your highest average salary over a three-year period was $100,000 and you have only 10 years of service, your retirement will be $10,000. But if you served 18 years in the government, your annual retirement benefit would equal $18,000. This means that it should be your top priority to maintain your disability retirement as long as you have a disabling medical condition. What Should I Do If I Lose My Disability Retirement? Not all is lost if OPM has decided that you have recovered from your condition and withdrawn your benefits. If your disability recurs and you do not earn more than 80% of your former salary, you may be able to have your benefits reinstated. Want to Learn More About Protecting Your FERS Disability Retirement? Losing your benefits can be absolutely devastating. Therefore, if you are worried that OPM may decide to terminate your disability retirement, you need to consult a federal employment attorney right away. The Federal Employment Law Firm of Aaron D. Wersing is dedicated to helping you exercise your legal rights. Contact us today by calling 833-833-3529. You can also reach out to us online.

Dec 7, 2022 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

Are Federal Employees At-Will Employees?

Are federal employees at-will employees? The simple answer to this question is “no.” Every federal employee receives due process rights and may be fired only for cause. However, there are periodic efforts within Congress to make all federal employees at-will employees, so it’s worth discussing the concept of at-will employment. We’ll also review the basics of federal employment and the rights that virtually all federal employees have. If you are a federal employee or are applying for a federal position, contact us to learn more about federal employment. We can help answer any questions about your rights as a federal employee. What Are At-Will Employees? According to the National Conference of State Legislatures, at-will employment “means that an employer can terminate an employee ‌for any reason, except an illegal one, or for no reason without incurring legal liability.” Employers cannot fire at-will employees for discriminatory reasons, like the employee’s race, sex, or religion. However, the employer can use just about any other reason to fire the employee. Technically, the employer need not have any reason at all for firing an at-will employee. Understanding the Basic Rights of Federal Employment Fortunately, federal employees have extensive protections against arbitrary terminations. The vast majority of federal workers have a right to due process. Specifically, federal employees have to receive the following rights when they face discipline: Employees receive more rights if their employer proposes a suspension greater than 14 days, a demotion, or a removal. In those situations, federal employees need to have at least 30 days advance notice and the right to appeal the decision. Employees may appeal major disciplinary actions to the Merit Systems Protection Board, a federal agency designed to “promote an effective Federal workforce.” An MSPB appeal guarantees the employee the opportunity to argue their case before a federal administrative judge. Employees may also present favorable evidence, call supporting witnesses, and cross-examine agency witnesses. Why Are Federal Employees Not At-Will? The answer to this lies in the history of our country. The founding fathers understood it was vital to have an independent federal workforce. Otherwise, federal employees could be hired and fired for purely political reasons. There were several times in American history when civil servants were hired and fired for their political views. In the late 1800s, ordinary citizens frequently expected to get federal jobs by working for a presidential candidate. The problems of this “spoils system” soon became obvious. In 1881, President Garfield was killed by a disgruntled supporter named Charles Guiteau. Guiteau had demanded a job at the American embassy in Paris for making a speech for President Garfield during his campaign for president. When he failed to receive a position, he decided to take matters into his own hands. The shocking assassination prompted Garfield’s successor to sign the Civil Service Reform Act (CSRA) of 1883. The CSRA helped create an independent civil service by requiring federal agencies to fire employees only for cause. How Can Federal Employees Be Fired? Unlike at-will employees, a federal agency may fire a federal employee only for certain reasons. Common reasons for termination include: These are only a few examples. However, agencies can fire federal employees for only specific kinds of misconduct or poor performance. Arbitrary reasons, even if they are not discriminatory, do not suffice. We Can Help Answer Your Federal Employment Questions Now that you understand the basics of federal employment, you might have other questions about working for the federal government. Whatever your question or concern, we are happy to answer it. In addition, we can represent you if your rights as a federal employee are under attack by your agency. Today, it is easier than ever to find a federal employment attorney. However, it’s critical to pick the right attorney. To protect your federal employment rights, you need a federal employment attorney with many years of experience and a track record of success. Here at the Law Office of Aaron D. Wersing, PLLC, our federal employment attorneys have several decades of collective experience representing federal employees. We’ve helped our clients with every aspect of federal employment, including MSPB hearings, disability retirement, and whistleblower retaliation. Whatever federal employment legal needs you have, we can help you solve them. To move forward, simply contact us today at 1-866-612-5956. You can also contact us online.

Dec 7, 2022 | By Aaron D. Wersing | Read Time: 5 minutes | Federal Employment Law

Examples of Hostile Work Environment

Working for the federal government can be demanding and challenging, but it should not be discriminatory or hostile. If you are a federal employee who is suffering in a hostile work environment, take comfort in knowing that you have several legal protections against workplace misconduct. You can also have a strong and effective advocate from the Federal Employment Law Firm of Aaron D. Wersing. Our experienced federal employment attorneys are dedicated to helping federal employees navigate the complex legal systems that grant compensation and relief for workplace disputes. What Is a Hostile Work Environment? Not every uncomfortable workplace is illegally hostile. An unlawfully hostile work environment is the result of workplace discrimination defined by Title VII of the Civil Rights Act of 1964 (Title VII). To hold your employer liable for fostering or condoning a hostile work environment, you must clear several legal hurdles. These hurdles include proving the presence of unwanted behavior that is discriminatory and severe or pervasive. A Hostile Work Environment Is Unwelcome The crux of maintaining a successful hostile work environment case is proving that the harassing behavior you endured was unwanted. When you are confronted with harassment, you should immediately tell your harasser to stop or complain to a supervisor or human resources about the conduct. A Hostile Work Environment Is Discriminatory You must prove that whatever hostile behavior you endured was discrimination that targeted a protected characteristic. The Title VII protected characteristics are: Among the many forms of discrimination, sexual harassment is a topic of concern that comes up often in this country, and it is a broader form of misconduct than the media portrays. Please remember that sexual harassment does not have to be motivated by sexual desire to be illegal. Sexual harassment just has to be based on someone’s sex or gender. A Hostile Work Environment Consists of Extreme or Persistent Actions What kinds of actions create hostile workplaces? The possibilities are endless. Someone in your workplace can commit this type of harassment through: A coworker, supervisor, or nonemployee in your office might make a passing joke or statement about someone’s protected characteristic, but not every incident like this rises to the level of unlawful discrimination. To claim that harassment at your job created a hostile environment, you must prove that the harassment was extreme or pervasive enough that a reasonable person would call your workplace abusive. Extreme discriminatory actions If there was only one instance of discriminatory harassment in your workplace, you must show the legal authorities that the one instance was extreme enough to be abusive on its own. Examples of this type of extreme behavior can include touching without permission and the use of offensive slurs. Pervasive discrimination If a single occurrence of discrimination isn’t extreme, you need to show the authorities that there was a pattern of discrimination in your workplace. That pattern might be daily jokes about race or sex or the exclusion of members from one protected class whenever there is a social work function. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII, and it looks at the entire record when concluding whether harassment created a hostile environment. When you sense harassment, collect as much evidence as you can, and your attorney can show the courts and authorities why the behavior at your workplace was unlawful. What Is an Example of a Hostile Work Environment? We know it can be difficult to speak out against mistreatment in your workplace. But sometimes, taking a stand is easier when you have examples of a hostile work environment to remind you of what you don’t have to endure. Let’s take a look at the two scenarios below. Example Number One Pervasive harassment that creates hostility can come from insults or perceived “compliments” about someone’s protected characteristics. For instance, imagine you are a member of a racial group that is stereotyped as being gifted in math. Balancing the budget is one of your many job functions, as well as data analysis and copy editing. During several work meetings, coworkers who have the same job as you joke that they should just give you all the budget work because “your people are good at that.” Your coworkers also consistently forward you work assignment emails regarding their budget projects and include joking messages that say, “I know you want to handle this—you have the genes for it.” Even if your coworkers think they are somehow attributing good qualities to you, this type of behavior can quickly make an individual feel targeted and unsafe in their work environment. If someone constantly makes comments (bad or “good”) about characteristics they associate with one of your protected characteristics, they are likely creating a hostile work environment. Example Number Two Workplace hostility can also come from non-verbal conduct. Activities like making offensive gestures, regularly entering a coworker’s personal space, following a coworker around, or touching a coworker without permission can be forms of unlawful harassment. If, for example, you repeatedly have to tell a colleague not to stand only an inch behind you and other employees of the same sex while you are making copies, you could have a right to file a sexual harassment claim. Your claim could be valid regardless of whether your harasser was of the opposite sex or motivated by desire. There are myriad ways your workplace can become hostile. If there is any hint of discrimination in your office or at your worksite, speak to an attorney immediately about how to respond. Employer Liability Employers are liable for hostile working environments when the following conditions are present: Do all that you reasonably can to follow your employer’s harassment complaint procedures and submit a written harassment report to your employer. If your employer’s point of contact for your complaint is your harasser, submit a written complaint to a trusted supervisor or human resources. And if the circumstances of the harassment make filing a complaint with management futile, speak to an attorney as soon as possible about your options. Taking Legal...

Dec 5, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

Does FMLA Apply to Federal Employees?

The Family and Medical Leave Act (FMLA) is a landmark piece of legislation that gives employees with serious health conditions a sizable amount of leave to take care of themselves. Employees can also receive leave to care for a family member with a medical condition. It is an important right for American workers, but few people have heard about FMLA. In fact, one common question we receive is whether federal employees can take advantage of FMLA. Simply put, the answer is yes. According to the Department of Labor (DOL), FMLA applies to all public agencies, including local, State, and Federal employers. Read on to learn more about how FMLA works for federal employees. We will run over FMLA’s basic history and take a look at its key provisions. If you have more questions about FMLA for federal employees, call or contact us online. A Brief Overview of FMLA FMLA gives employees up to twelve weeks of leave to deal with a serious health condition or to care for a family member with a serious health condition. While the leave is unpaid, FMLA guarantees that the employee can keep their job. To receive FMLA leave, an employee must complete a preliminary application form and attach supporting medical evidence. Although 12 weeks is the maximum amount of leave an employee can receive, not all applications receive that amount. To receive a full 12 weeks of leave, three requirements need to be met. First, you must not have taken any FMLA leave within the past year. Second, you must currently be working a full-time position (40 hours or more per week). Third, you need to have worked at least 1,250 hours at your employer over the previous 12 months. Finally, your request for 12 weeks of leave must be supported by medical documentation. In addition to caring for themselves or a family member with a serious health condition, federal employees may also use FMLA: In these situations, the FMLA leave must conclude within 12 months of the birth or placement of the child. What Qualifies As a Serious Health Condition? Many different situations can constitute a “serious health condition.” Examples include any medical conditions that: Pregnancy and organ donation can also be grounds for applying for FMLA leave. So can mental disorders, provided they meet the criteria mentioned above. FMLA to Care for Covered Service Members FMLA has an additional provision for individuals who need to care for loved ones who are service members with a serious injury or illness. If a federal employee’s FMLA request meets this requirement, they can receive up to 26 weeks of leave during a 12-month period rather than 12 weeks. However, the leave will still be unpaid. Using FMLA Leave and FMLA Leave Protections Employees can use FMLA leave in a variety of ways. FMLA leave can be used in one 12-week block, in several smaller weekly blocks, or sporadically throughout the year. In some situations, employees can operate on a reduced leave schedule, which means they use their FMLA leave to work slightly fewer hours over a longer period of time. While an employee is on FMLA leave, their job is protected. An employer cannot retaliate against the employee for using FMLA. Nor can the employer terminate or downgrade the employee. The law requires employers to return the employee to the same job or one that is nearly identical to the prior job. To qualify as a “nearly identical” job, the new job must: The “nearly identical” job must also offer identical employee benefits, such as health insurance, disability insurance, vacation time, sick leave, and retirement benefits. If You Want to Know Whether FMLA Is an Option for You, Give Us a Call Today Now that you know that FMLA is an option for federal employees, you might be wondering whether your personal situation qualifies you for FMLA leave. If that’s the case, don’t leave your future to guesswork. Get legal representation right away by contacting an experienced federal employment lawyer. At the Federal Employment Law Firm of Aaron D. Wersing, we are not generalists who also happen to take on federal employment cases. Instead, our entire practice is concentrated on helping civil servants with all kinds of federal employment issues. We have experience with all kinds of situations. We can give you the advice you need and help you assess your legal options. At every step of the way, you can expect wonderful customer service, making the legal process as painless as possible. Don’t leave your future up to chance. Call us today or contact us online.

Sep 14, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

Are Title 38 Veterans Affairs Employees Considered Federal Employees?

The Department of Veterans Affairs (VA) is an agency of the federal government. This means that all veterans affairs employees are, strictly speaking, employees of the federal government. However, unlike employees in other departments, such as the Department of Defense or the Department of Energy, many VA employees fall under two unique personnel systems that distinguish them from other federal employees. These systems are referred to as “Title 38” and “Hybrid Title 38.” VA employees under these federal code titles lack most of the benefits and privileges that most other federal employees enjoy but do have other rights unique to them. These differences can have a tremendous impact on your work schedule, pay, leave amount, and appeal rights. Are VA Employees Federal Employees? Yes and no. VA employees are federal employees in the sense that they work for the federal government. VA is the federal government’s second-largest department after the Department of Defense. It employs nearly 371,000 healthcare professionals and support staff at VA medical facilities nationwide. VA administers benefits programs for Veterans, their families, and survivors. Virtually all employees of the federal government are covered by Title 5 of the United States Code, as are many VA employees. Title 5 defines all the distinctive benefits of federal employment, including the General Schedule (GS) and Executive Schedule (ES) pay scales, working conditions, and holidays. Although some VA employees, generally those in medical positions, work for a federal agency, many of them do not work in Title 5 positions. Instead, the VA has its own unique hiring system for medical professionals called Title 38. To give you a better sense of how this applies, it makes sense to run over the differences between Title 38 and Title 5. Title 38 vs. Title 5: Similarities and Differences Under Title 38, all employees must serve a two-year probationary period. Title 5 employees, on the other hand, need to serve only a one-year probationary period at the VA. Title 38 employees also possess a distinctive pay schedule compared to Title 5 employees. Unlike Title 5 employees, different Title 38 professions receive different pay ranges. The basic pay of some Title 38 employees (like nurses and chiropractors) is roughly comparable to their GS colleagues. But Title 38 physicians and dentists can earn far more than their Title 5 peers. For instance, a VA staff physician can earn up to $243,000, whereas Title 5 employees can earn no more than 176,300 under 2022 pay limits. That fact aside, both Title 38 and Title 5 receive locality pay to compensate them for the different standards of living that exist across the country. One significant difference between Title 38 and Title 5 employees is their respective work schedules. Almost all Title 5 employees work a normal 40-hour workweek. And like private sector counterparts, Title 5 employees work between roughly 9 AM to 5 PM Monday through Friday. But many Title 38 employees— like dentists, physicians, optometrists, and chiropractors—need to be available 24/7. Both Title 38 and Title 5 positions can be full-time, part-time, intermittent, and temporary. Finally, Title 38 employees generally do not have the right to appeal an adverse employment action to the Merit Systems Protection Board (MSPB) like Title 5 employees. They do, however, have appeal rights through a hearing before the Disciplinary Appeals Board (DAB). Do All VA Positions Under Title 38? Not at all. Title 38 primarily applies to professional medical positions in the VA, including registered nurses (RNs), physician assistants (PAs), and optometrists. To receive an appointment, Title 38 applicants must first have their qualifications reviewed by their peers via a Professional Standards Board (PSB). Assuming the PSB finds the applicant has the necessary qualifications for the role, a designated management official approves the appointment. On the other hand, Title 5 covers almost all VA employees in nonmedical occupations. These Examples include program analysts, human resources specialists, police officers, and attorneys. Hybrid Title 38 Employees To make things even more complicated, some VA employees fall under Title 38 for some purposes and under Title 5 for other aspects of employment. The VA refers to these employees as “Hybrid Title 38” employees. Hybrid Title 38 occupations include: Hybrid Title 38 employees fall under Title 38 for matters like appointment, promotion, and some pay matters. Yet they are categorized under Title 5 when it comes to things like performance appraisals, leave, work schedule, and retirement benefits. And like Title 5 employees, hybrid employees serve one-year probationary periods. If you want to learn more about hybrid employees, it’s best to contact a qualified federal employment or veterans affairs attorney. Who Do Department of Veteran Affairs Employees Report to? Whether they fall under Title 5 or Title 38, VA employees report to their designated supervisors. But as mentioned before, employees who are Title 5 can expect to see more involvement from their peers when they join the VA or apply for a promotion. Do You Want to Know More About Your Rights as a Title 5 or Title 38 Veterans Affairs Employee? Give Us a Call Today. Regardless of whether you are a Title 5, Title 38 or Hybrid Title 38 employee, you have rights. And those rights deserve to be defended. If you think your agency has violated your rights, you need to contact an experienced attorney right away. However, it is vital you search for an attorney that specializes in federal employment and VA matters. You should also look for an attorney with a track record of success and positive client reviews. Our capable federal employment attorneys at the Federal Employment Law Firm of Aaron D. Wersing, PLLC have all those qualities. We have decades of collective experience representing federal employees and defending their rights. Regardless of your situation, personnel system, or occupation, we believe that you deserve outstanding legal representation. Our firm has obtained amazing results for our clients, and they are more than happy to discuss the differences we’ve made in their lives. Don’t wait another moment. Pick up the phone today and...

Sep 12, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

What Is the Veterans Employment Opportunities Act of 1998

Congress passed the Veterans Employment Opportunities Act (VEOA) in 1998 to reward veterans for their service in the armed forces. Specifically, VEOA grants veterans a hiring preference, making it easier for them to get jobs in the civilian service. It provides certain retention benefits as well. VEOA also gives veterans who are federal employees or applicants for federal positions the right to challenge a violation of their rights. VEOA applies to virtually all agencies and positions within the federal government, but most people know little about it. If you are a veteran currently working for the federal government or applying for a federal position, understanding veterans’ preference and your legal rights as a veteran is vital. VEOA: Understanding the Basics To understand veterans’ preference under VEOA, it is best to review how government hiring works. There are several services within the federal government: the Competitive Service (CS), the Excepted Service (ES), and the Senior Executive Service (SES). Each service has its own process for reviewing and appointing employment candidates. The CS includes most civil service positions in the executive branch of the federal government. For CS positions, individuals must undergo a multi-layered competitive examination process. Generally, the CS hiring process includes a written test, an evaluation of the individual’s education and experience, and an interview. The ES refers to several positions that do not use the same competitive process as CS positions. Examples include government attorneys and certain other professional roles. Finally, there is the SES, which encompasses high-ranking members of government who typically serve in leadership roles. VEOA gives veterans’ preference for all CS and ES positions, as well as most SES positions. Veterans’ preference is expressed as a 0 to 10 point addition to any passing examination score or employment rating. Veterans’ preference does not apply to promotions, reassignments, or transfers. Many people often confuse the VEOA with the Veterans Recruitment Appointment (VRA), but the two have significant differences. Who Qualifies for Veterans’ Preference Under VEOA? Any person with an honorable discharge or general discharge from one of the branches of the armed forces can receive veterans’ preference. Covered branches include the Army, Navy, Space Force, Air Force Force, Marine Corp, and Coast Guard. In most cases, a person must have served at least 24 months before they are eligible to receive veterans’ preference. Most retirees below the rank of O-4 (Major/Lieutenant Commander) can receive veterans’ preference. Those who retired at the rank of O-4 or higher do not receive preference unless they have a disability. Although veterans’ preference was originally aimed at those who had served in an active war, it now applies to potentially anyone who served in the armed forces. The Point System Under VEOA There are three levels of veterans’ preference under VEOA: zero-point, five-point, and ten-point. The zero-point preference is reserved for someone who receives a “sole survivorship discharge.” A sole survivorship discharge is when a military member asks to leave the military because they are the only surviving child of their family. Any non-disabled veteran who served honorably can receive a five-point preference. The highest level of veterans’ preference applies to any veteran (or family member) who has a service-connected disability or a purple heart. VEOA vs. VRA It is easy to confuse VEOA with VRA, but the two operate in different ways. The VEOA grants veterans a small preference in hiring matters. By contrast, the VRA is a special hiring authority that grants agencies the ability to appoint veterans without any kind of competitive process. In other words, the applicant can get the job without needing to take any test or attend any interview. Just like the VEOA, there are a few requirements a person must meet to be eligible for a VRA position. First, the candidate must meet all basic qualification requirements for the position. Second, the candidate must be: Unlike the VEOA, there is no service requirement. And the VRA applies only to some ES positions. It does not apply to CS or SES positions. Lastly, the VRA position must be at the GS-11 level or lower. Want to Learn More About Veterans’ Preference? Contact a Skilled Federal Employment Attorney Today It’s only fair to recognize veterans for their sacrifice and service to the country. Yet understanding how the VRA and VEOA apply to federal positions is complicated. While you may understand the basics of VRA and VEOA, it is more difficult to evaluate whether your employment application was treated fairly. Hiring managers can easily misapply veterans’ preference or even consciously ignore it. When that happens, you have rights under the law. Here at the Federal Employment Law Office of Aaron D. Wersing, PLLC, our team is passionate about defending the rights of veterans. We want all veterans to have a fair chance at federal employment, and we have years of experience protecting veterans in multiple legal forums. On top of that, we have a proven track record of success and a stellar reputation amongst our clients. Even if you aren’t sure you have a case, contact us. Don’t miss your opportunity to get your federal dream job. Give us a call at 866-612-5956 or get in touch with us online.