Jan 13, 2025 | By Aaron D. Wersing | Read Time: 5 minutes | Federal Employment Law

Absence Without Leave (AWOL)

AWOL, which stands for ‘Absence Without Leave,’ is a term commonly used in work settings. It refers to an employee’s unauthorized absence from their duty or workplace without prior approval. When an employee goes AWOL, it typically results in a non-pay status, as their absence has not been officially sanctioned by their employer. It is also a common charge of discipline within the federal government. Note though that AWOL is not in and of itself discipline, although it may lead to discipline. A charge of AWOL can result in a reprimand, suspension, or even removal from the federal service. Being charged with AWOL is a serious matter. But it need not be the end of your career. If your agency has charged you with AWOL, it’s imperative you find a qualified federal employment law to help represent you and defend your rights, especially if disciplinary action is proposed or imposed. What Does AWOL Mean? Again, AWOL means “absence without leave” or “absent without official leave.” As with any other job, showing up for work on time is an essential requirement for federal employment. There is no minimum time requirement for AWOL. Although more accommodating managers may cut an employee slack for ten or fifteen minutes late, even a five-minute absence can lead to a charge of AWOL. Several other situations can lead to a charge of AWOL: What Are the Elements of an AWOL Charge? If a federal agency wants to use AWOL as a basis for discipline, it must prove two key points of AWOL charge. #1: The federal employee was absent from work As we mentioned earlier, there are a variety of circumstances that can lead to an employee being absent. Consequently, it is often relatively easy for an employer to prove this part of the charge. But you can contest this point by providing evidence that you were at your place of work during the time period in dispute. #2: The federal employee’s absence was not authorized Federal managers have the right to deny personal leave requests for legitimate reasons. However, they cannot refuse your leave for discriminatory reasons or for retaliatory reasons. Supervisors can also revoke their authorization of a leave request, but it also must be for appropriate reasons. It is not unheard of for retaliatory managers to grant an employee leave, revoke it at the last minute, and then try to charge an employee AWOL. If you think your leave was revoked because you made a complaint, you may be eligible for compensation. A qualified employment attorney can help you demonstrate the connection between your protected activity and any retaliatory activity (including the cancellation of leave). Need Help With Absence Without Leave (AWOL) Issues? Contact Us Today! What Is the Standard of Proof in an AWOL Case? The phrase “standard of proof” refers to the level of evidence the government needs to have to succeed in its case against the federal employee. There are four standards of proof: The “beyond a reasonable doubt” standard of proof is the most stringent standard and is not used in administrative charges like this. The “substantial evidence” standard is the easiest standard for a party to meet. For most disciplinary actions against federal employees, the “preponderance of the evidence standard” applies. To meet a “preponderance of the evidence” standard, the government provides enough evidence to show the judge that there is a greater than 50% chance that the alleged misconduct—a period of AWOL, for example—actually occurred. How Many AWOL Before Termination Federal Employee? The number of AWOL charges before termination depends on severity and policy. A single AWOL offense can lead to proposed removal if severe enough, especially for federal employees. Repeated offenses increase termination risk. Agency policies and past disciplinary records influence outcomes. Defenses to AWOL Charges There are a few common defenses employees can assert to AWOL charges. First, the employee can allege that the government’s charge is based on some kind of discrimination. The law prohibits many kinds of discrimination in the federal workplace, including discrimination based on race, gender, sexual orientation, religion, national origin, and disability. At first glance, you may not think that any of these apply to you. However, it is helpful to take a moment to consider whether any of your colleagues have been in your situation. For example, do you know a colleague of a different race who showed up late to work one day but was not charged with AWOL? Has your supervisor treated you worse than other colleagues of a different sexual orientation or gender? Are you charged AWOL every time you ask for leave to see your doctor for medical appointments? Think carefully—workplace discrimination can often show up in subtle ways. What If My Supervisor Marked Me as AWOL for Being on Active Military Duty? Many federal employees are veterans of the armed forces. Some of these veterans retire before they enter federal service. Others are reservists. The law prohibits federal employers from discriminating against a reservist because of their reserve duty requirements. Similarly, if a federal employee who is also a reservist is called into active duty, they cannot be marked as AWOL. If your supervisor marked you as AWOL after you were ordered to active military duty, you might be able to sue them for military discrimination. What Are My Rights If I Have Been Charged with AWOL? Most private-sector employees have few due process rights. This means their employer is free to punish them without notice and without providing them any opportunity for rebuttal or defense. Thankfully, United States Code guarantees federal employees due process once they complete their probationary period. As a result, your employer generally cannot simply fire you or punish you for being AWOL. Instead, they generally have to provide you with: Without these protections, any adverse action taken against you can be thrown out for violating your rights. Charged with AWOL? Let a Knowledgeable AWOL Attorney Help You Today If your federal employer has charged you with AWOL, it’s easy...

Jan 9, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

Who Can Appeal Adverse Actions to the MSPB?

When you’re a federal employee, learning you’re the subject of a proposed adverse action can be frustrating and confusing—especially if you think your agency is acting unjustly. However, unlike many private-sector workers, federal employees don’t necessarily have to accept unfair discipline at the hands of an employer. Federal law prohibits government employers from firing or disciplining most civil servants without a good reason, such as poor performance or misconduct. When an agency doesn’t follow these rules, eligible federal employees can appeal to the Merit Systems Protection Board (MSPB) to challenge their adverse action and potentially have it reversed. In this blog post, we’ll explain who can appeal adverse actions to the MSPB, which civil servants are exempt from appeal rights, and what disciplinary actions can be appealed. Who Can Appeal Adverse Actions to the MSPB? Not all government workers have the right to challenge an adverse action before the MSPB. The eligibility requirements for MSPB appeals rights are in Title 5 of the U.S. Code, the primary set of laws covering federal employees. Whether you have the right to appeal depends on various factors, including your employment category, how long you’ve been working, and the type of adverse personnel action you’re facing. Under Chapter 75 of Title 5, you are typically eligible to appeal adverse actions to the MPSB if you are: Certain federal employees are also explicitly excluded from the right to appeal to the MSPB, including: If you’re unsure whether you have MSPB appeal rights, consult with your agency’s Human Resources department or a federal employment lawyer. Can You Appeal an Adverse Action If You Don’t Work for a Federal Agency? Put simply, yes, you may still have the right to appeal an adverse action, even if a federal agency doesn’t employ you. This question arose in a 2022 case involving an Office of Administration (OA) employee, which supports the Executive Office of the President. The employee had successfully appealed their case to an MSPB administrative judge, who reduced the OA’s proposed removal to a 60-day suspension. In response, the OA argued that the employee didn’t have a right to appeal to the MSPB since the OA is not technically an “agency” as recognized by federal law. However, the MSPB clarified in their final opinion that an employee’s right to appeal an adverse action is not strictly limited to employees of federal agencies. Instead, the MPSB clarified that appeals rights hinged on whether a civil servant met the eligibility requirements established by Title 5. Ultimately, government employees who meet all these criteria and are not expressly excluded from appeals rights may still challenge an adverse personnel action before the MSPB. What Is an Adverse Action for MSPB? An adverse action is an unfavorable change to an employee’s job status or pay made by a federal employer. Adverse personnel actions include: Unlike in the private sector, federal employers must have concrete, documented reasons (i.e., “cause”) for enforcing an adverse personnel action. They also must follow specific procedures intended to ensure fairness in the disciplinary process, such as providing advance notice to an affected employee and allowing them an opportunity to respond. Employees may exercise their right to an MSPB appeal when employers don’t follow these rules. Protect Your Rights with the Help of a Skilled Advocate Understanding your rights is critical if you are a federal employee facing an adverse action. The MSPB appeal process can be complex, and having an experienced advocate by your side can make all the difference. The Federal Employment Law Firm of Aaron D. Wersing has spent years empowering federal workers to understand and exercise their unique rights as employees. Our team has helped hundreds of clients navigate employment disputes, fight unfair discipline, and even reverse proposed removals. We have extensive experience with MSPB appeals across virtually all aspects of the federal government, and we’re prepared to help ensure your voice is heard. Contact us today to schedule a consultation and learn how we can assist you.

Jan 9, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | FERS Disability

What Conditions Are Considered Disabilities?

If you find yourself on this web page right now, you probably already know a bit about the Federal Employees Retirement System (FERS). Under the FERS retirement disability program, workers who find themselves injured or otherwise disabled receive employment security benefits if they are unable to work due to their condition. But, what is considered a disability? Sometimes the benefits are temporary, but sometimes they are permanent. Furthermore, the Americans With Disabilities Act (ADA) prevents employers from discriminating against employees on the basis of disability. Some of the most common disability-related questions we get from our clients at the Federal Employment Law Firm of Aaron D Wersing have to do with what the FERS and ADA consider a disability. Those questions include things like: If you have any of these or other related questions, you’re in the right place. We put together this page specifically to help you assess whether your injury qualifies you for disability benefits. What Is Considered a Disability? So, what is considered a disability? There are quite a few different medical conditions that FERS considers disabilities. In fact, there are too many to cover here. You can, however, find an exemplary list that the Social Security Administration (SSA) uses in its entirety right here. While FERS doesn’t use the exact same list, the two are very similar. After all, they both come from the federal government and serve near-identical functions. In all, the SSA’s list contains 14 categories of impairments: This list encompasses a very broad range of different medical conditions and disabilities. At the end of the day, the most important element in qualifying for disability is demonstrating your inability to function at work as you would without the disorder. Additional Common Disorders Injuries to hands, feet, and other extremities can qualify you for disability benefits if you are unable to work. For example, it’s possible you can get disability for plantar fasciitis, arthritis, or tendon damage. It all depends on the circumstances of the injury and your job duties. If you injure yourself enough to warrant an amputation, chances are you qualify for disability. The federal government considers thumb amputation a disability. In fact, the federal government considers any finger amputation a disability. While losing a finger may not seem as extreme a disability as a terminal illness, losing a digit can significantly impede one’s ability to work. If you’re wondering whether cancer is a disability, the answer is a resounding yes. FERS, the SSA, and the federal government as a whole all consider cancer a disability, as does the Americans With Disabilities Act (ADA). In fact, you may have noticed that cancer warrants its own category in the SSA’s full list of medical conditions. Cancer itself, and many of the treatments associated with it, take a significant toll on patients’ bodies. As a result, working is often entirely out of the question for individuals with cancer. Excluding cancer in any form from the list of disabilities would be entirely inappropriate. Need Help Filing Your Disability Claim? Contact Our Federal Disability Lawyers Today More often than not, the most difficult part of getting disability benefits is proving that your condition is sufficient to render you unable to work in your position of record. The problem is that there is a subjective element in determining whether someone can work or not. The best thing you can do to ensure this process moves forward is with the help of a FERS disability attorney. They can help you gather evidence that proves your disability’s impact on your life. At the Federal Employment Law Firm of Aaron D Wersing, federal disability benefits are one of our legal team’s primary focus areas. You have rights, so let us help you fight to protect them. Have a look at some of our client testimonials, then let’s get started. Call today!

Jan 7, 2025 | By Aaron D. Wersing | Read Time: 4 minutes | Workplace Harassment

Federal Workplace Harassment: A Federal Employees’ Guide to Understanding Your Rights

Workplace harassment continues to be a problem at federal agencies, with the U.S. Equal Employment Opportunity Commission (EEOC) reporting that most of the claims filed in 2019 were related to harassment. Federal employees should familiarize themselves with applicable federal laws that prohibit workplace harassment. These laws not only protect employees’ rights but can also potentially eliminate future incidents of harassment. If you believe you were the victim of workplace harassment while working in a federal government position, it’s time to contact an experienced federal workplace harassment attorney who can help. What Is Considered Workplace Harassment? So, what is considered harassment at work? Some people assume workplace harassment is just another term for sexual harassment. However, sexual harassment is only one type of workplace harassment that employees may suffer. Harassment can be verbal, psychological, physical, or in the form of online bullying. Workplace harassment occurs anytime an employee suffers unwelcome or unwanted conduct based on: Harassment becomes illegal when the conduct creates an intimidating or hostile work environment or is offensive to reasonable people. There is a threshold test, whether the harassment is sufficiently severe or pervasive. Minor annoyances or petty slights will not typically rise to the level of federal law unlawful workplace harassment. Examples of workplace harassment include offensive jokes, physical assaults, racial slurs, intimidation, and conduct that interferes with work performance. Sexual harassment can include requests for sexual favors, unwelcome sexual advances, quid pro quo harassment, or other physical or verbal harassment of a sexual nature. In many cases, sexual harassment is not overt or physical; it’s often masked in comments or banter, making future encounters uncomfortable and awkward. Sexual harassment victims can be female or male. They may even be of the same sex as their harasser. In 2019, sexual harassment claims accounted for 10.3% of the EEOC’s total complaints. Harassment of a federal employee also includes retaliation for engaging in protected EEO activity. Anti-discrimination laws provide that harassment against people in retaliation for filing a discrimination complaint or engaging in other protected EEO activity is illegal. This protected activity includes someone who has filed a discrimination charge or participated in an investigation, or other EEO-type proceedings, requested a reasonable accommodation, or provided testimony in another employee’s EEO complaint. Complaints involving retaliation comprise more than half of all complaints filed with the EEOC. Out of 72,675 complaints filed in 2019, 39,110 involved retaliation. When Are Employers Liable for Workplace Harassment? Federal employers can be held liable for workplace harassment even when they are not directly involved. An employer must take reasonable action to prevent any harassment in the workplace. If harassment has occurred, the employer must take swift disciplinary action for harassment in the workplace. Federal agencies will be automatically liable for harassment by someone in a supervisory position that resulted in termination, loss of wages, failure to hire or promote, or other negative employment action. Suppose a supervisor’s alleged harassment resulted in a hostile work environment. In that case, the employer could be held responsible unless that employer can prove that it took appropriate preventative and corrective measures, and the involved employees did not follow the applicable policies. Harassment by non-supervisory employees or non-employees the employer controls, like a customer or independent contractor, is handled a bit differently. Employers are only held liable if they knew or should have known about the harassment and did not take swift and necessary corrective action. The best way to eliminate workplace harassment is to prevent it before it happens. Agencies should have an effective grievance or complaint process so that employees can report any unwanted conduct immediately. Speaking with employees about harassment and establishing anti-harassment training for both supervisory staff and employees are essential components of harassment prevention. What Can Employees Do About Harassment in the Workplace? When harassment occurs in the federal workplace, employees must take action to try and stop it. Employees can start by trying to resolve the issue at the lowest level, speaking directly with the person who has committed the harassment. It’s important to communicate that you find the behavior or words offensive. If the harassment continues, employees should follow the applicable reporting procedures for their employer. Report the conduct early on to keep it from escalating. Employees can also file a complaint with their agency’s EEO office, which eventually could come directly before the EEOC. Facing Harassment In The Federal Workplace? Contact Our Federal Employee Lawyer at FEDLaw Today If you are a victim of federal workplace harassment, it may affect your work performance. The job you once loved may now be a source of extreme stress. You may experience difficulty sleeping, mood swings, or other symptoms as a result. Taking action to stop unwanted conduct can help you feel better. Putting a stop to workplace harassment can protect you and your federal career that you’ve worked so hard for over the years. Don’t let someone get away with workplace harassment. Speak with a skilled federal workplace harassment lawyer who can help you understand your legal options. At the Law Office of Aaron D. Wersing, our focus is federal employee law, including workplace harassment. We can advise you on the best course of action and guide you through the process of reporting the unlawful harassment you have suffered. Our primary goals are to protect your rights and to make the harassment stop. Contact our office to schedule an initial consultation or to speak with our experienced federal workplace harassment attorney.

Jan 7, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

Due Process Issues in MSPB Cases

Due process is a cornerstone of fairness in federal employment disputes. Federal agencies must follow specific legal procedures before firing or negatively altering a federal worker’s employment status to protect qualified civil servants from arbitrary or politicized employment actions. When agencies fail to follow these procedures, federal employees can make a case to the Merit Systems Protection Board (MSPB) and potentially have their adverse action reversed. This blog post will give an overview of federal employees’ rights to due process in an adverse employment action. We’ll cover the basic legal protections government workers have and common due process issues in MSPB cases to be aware of. Understanding Federal Employee Due Process Rights The right to due process originally comes from the Fifth Amendment of the U.S. Constitution, which states that the federal government can’t legally deprive anyone of life, liberty, or property without following a specific procedure. For federal government employees, employment is, in essence, a property right. This means that civil servants can’t be disciplined or removed from their roles without going through a specific process. The Civil Service Reform Act of 1978, which aimed to foster a merit-based, nonpartisan federal workforce, established the steps of this process. Federal employee due process rights in employment actions generally consist of the following: Federal employees also have the right to appeal their case to a neutral entity if they feel the adverse action was enacted unfairly. The Merit Systems Protection Board (MSPB) is the neutral body that oversees these cases and reviews whether federal agencies have adhered to due process requirements. The MSPB is vital in holding agencies accountable and safeguarding employees’ rights. Federal Employee Due Process Violation Examples Although due process is one of federal employees’ most fundamental rights, agencies may not always respect these rights. Let’s look at some examples of due process violations federal employees may face. Insufficient Notice of Charges Federal employees must receive advance written notice of the reasons for an agency’s proposed adverse action. Agencies must be specific and detailed about an employee’s alleged disciplinary or performance issues. For example, simply stating that an employee showed “poor performance” without naming particular incidents could be a due process violation. Denial of Opportunity to Respond Employees must receive the chance to respond to the allegations against them. This includes presenting evidence, providing explanations, and defending against their employer’s claims, either in writing or during an oral hearing. If an agency makes a proposed action final before an employee can reasonably respond, it may violate due process laws. Refusal to Share Critical Information Federal employees have the right to review all information an agency relies upon when deciding on disciplinary action. You can request this information if an agency doesn’t provide it when they give you notice. Agencies that refuse an employee’s request for information can have their decisions overturned by the MSPB. MSPB Harmful Procedural Error An employee faces a harmful procedural error when an agency fails to follow its own internal policies or legal requirements, which negatively impacts the outcome of the case. For the MSPB, a harmful procedural error or a due process violation could be grounds to reverse an agency’s adverse action. That’s why federal employees must understand their rights in these processes. Dedicated Advocates for Civil Servants It’s normal for federal employees to feel overwhelmed and paralyzed when their job is threatened. However, you are far from powerless in this situation. If you suspect your employer has violated your rights in a proposed action, the Federal Employment Law Firm of Aaron D. Wersing can provide the guidance and support you need. Attorney Aaron D. Wersing has extensive experience helping federal employees understand and exercise their rights in employment disputes. Our team understands the complexities of due process issues in MSPB cases, and we’re prepared to fight to ensure on behalf of you and your career. Contact our office today to schedule a consultation and learn more about how our advocates can help you. Resources: 5 U.S.C. § 7503, link.

Dec 26, 2024 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

Conduct Unbecoming Charges for Federal Employees

There’s an almost endless number of disciplinary charges that you can face in the government. Together, these various charges cover almost the whole range of possible behaviors that justify disciplinary action. However, federal agencies will sometimes use the more general charge of “conduct unbecoming” against employees for situations not specifically covered by other rules. Facing this charge is tricky because the legal analysis has a couple of unique wrinkles. We’ve prepared this article to help equip you with the information you need to understand this charge and craft a solid defense. That said, if your federal employer charged you with unbecoming conduct, contact one of our outstanding MSPB attorneys immediately. What Is Conduct Unbecoming for an Employee? The phrase “conduct unbecoming an officer and a gentleman” originated from military codes. The Articles of War (1872) stated that officers behaving scandalously would be cashiered. The Naval Discipline Act of 1860 also referenced “conduct unbecoming the character of an officer.” “Conduct unbecoming” has a simple definition: any behavior that your employer believes negatively affects your work. Thus, in contrast to most disciplinary charges, conduct unbecoming is a non-specific charge. This has some potent legal implications. For one, it means that the charge has no specific elements. All your employer has to do is show that you committed the alleged conduct and that the conduct negatively affected your employer in some way. The Merit Systems Protection Board (MSPB) has previously tried to give some definition to the phrase “conduct unbecoming of a federal employee,” saying that it must somehow be “unattractive” or create “an unfavorable impression.” But there’s an obvious problem here. Not everyone will agree on what creates an unfavorable impression. For instance, your neighbor might find it offensive for you to listen to hip-hop music in your garage, even though most people have no problem with it. Unfortunately, this inherent ambiguity allows bad actors to use this charge to persecute federal employees for illegal and discriminatory reasons. Conduct unbecoming an officer involves a higher level of dishonor or discredit than mere prejudice to good order and discipline. When a servicemember acts in a manner unbecoming an officer, they inherently engage in conduct discrediting the service or prejudicial to good order and discipline. Examples of Conduct Unbecoming Fortunately, the MSPB often reviews cases involving allegations of conduct unbecoming a federal employee. Let’s review these examples to get a sense of what this term actually means in real-world situations. In 1992, the MSPB affirmed the agency’s charge of conduct unbecoming after an employee killed a deer with his government vehicle. A few years later, the MSPB upheld a conduct unbecoming charge against an employee who spoke to one of his subordinates in a physically intimidating and threatening way. The charge has also been successfully used against a supervisor who sexually harassed co-workers and other agency employees. Therefore, your agency might use that charge against you for things like swearing in the workplace or pranking a co-worker. What Do I Do If My Employer Charges Me with Conduct Unbecoming? There’s actually a wide variety of strategies you can use to defend yourself against a charge of conduct unbecoming. First, you can contest the underlying behavior. In many cases, this is the easiest strategy to pursue because it saves you the need to argue about whether the behavior was actually “unbecoming.” Alternatively, you can attack the charge on due process grounds by arguing that the accusations are too vague to allow you to defend yourself. When you read the proposal letter, check whether your agency included the following: If the charge is missing one or more of these elements, then you may be able to mount a successful due process defense. You can also defend yourself on due process grounds if your agency doesn’t let you respond to the charge or fails to show you the evidence it relied upon. Finally, you can defend yourself by asserting that your agency is taking action for discriminatory or harassing reasons. Whatever defense you think might be best in your case, you should consult a qualified federal employment attorney right away. Let Us Give You the Legal Service and Service You Deserve It’s hard to overestimate the importance of your federal career. If your employer successfully charges you with conduct unbecoming, it can leave a black spot on your record that can torpedo your future opportunities. Don’t let that happen. Instead, defend your rights and clear your name. If you’re defending yourself against any kind of federal discipline, don’t go it alone. Let the Federal Employment Law Firm of Aaron D. Wersing PLLC be your guide. Our dedicated team is here to ensure that you’re safeguarded against any conduct unbecoming charges and that your employer respects your rights as a federal employee. We recognize the immense contribution federal employees make to our nation through public service. Consequently, it’s our priority and passion to help you uphold the integrity of your career. Because of our deep-rooted commitment to supporting federal employees, we proudly offer complimentary initial consultations. So don’t hesitate to reach out for the assistance you deserve. Connect with us today by calling us or reaching out online.

Dec 26, 2024 | By Aaron D. Wersing | Read Time: 4 minutes | Workplace Harassment

What Is Unlawful Harassment Under Federal Law?

Unlawful harassment occurs when an employer treats a person or group differently from others who are similarly situated. If you work for the federal government and believe that you have experienced unlawful workplace harassment, there is a specific procedure you must follow to get relief. Today, we’ll cover the basics of federal harassment laws, including what qualifies as harassment under these laws and the options available for federal employees to address it. If you believe you have experienced unlawful harassment in your federal workplace, you may be available in your situation. Contact an experienced federal employment lawyer by sending an online message or calling our firm at (866) 626-5325 today. What Is Unlawful Harassment? Harassment becomes unlawful when enduring offensive conduct is a condition for continued employment or when the conduct is severe or pervasive enough to create an intimidating, hostile, or abusive work environment for a reasonable person. Workplace harassment, defined as unlawful behavior that creates a hostile work environment, is a form of employment discrimination and violates several federal acts that protect employees’ rights. These include: This conduct could be based on race, color, sexual orientation, gender identity, pregnancy, religion, national origin, age, genetic information, or disability. Types of Unlawful Workplace Harassment Conduct Unlawful harassment can include verbal, written, visual, or physical conduct. Verbal or Written Harassment Verbal harassment may include insults, derogatory slurs or comments, or name-calling. Invasive questions about a person’s body, appearance, clothing, customs, or sexual activity may also qualify as unlawful workplace harassment. Verbal harassment includes written, emailed, or text statements. Visual Harassment Workplace harassment examples can sometimes be subtle and harder to detect or prove. They include offensive gestures, sexually suggestive noises, hostile eye contact, and the display of derogatory or offensive images. Offensive images can come in many forms, including images on the clothing someone wears to work. Physical Harassment Physical harassment can include unwanted proximity. This can include following, standing close to, or actually touching someone. Sexually suggestive hand gestures or facial expressions can be categorized as physical harassment as well, even if there is no actual contact. And of course, actually touching someone else’s body without permission in any type of sexual or unwanted manner is prohibited. What Is Unlawful Retaliation? Retaliation is a specific form of discrimination that may occur in response to an employee making a good faith complaint about workplace harassment or discrimination. Retaliation can also happen in response to the refusal of sexual advances or defending others from advances. Requests for disability or religious accommodations may also be met with retaliation. Unlawful retaliation occurs when an employer changes the terms of employment such as responsibilities, pay, schedule, or other factors as a form of punishment. What Three Factors Are Commonly Used to Determine Unlawful Workplace Harassment? Harassment is unlawful when offensive conduct is a condition of continued employment or is severe enough to create an intimidating, hostile, or abusive work environment. However, not all offensive actions meet this standard. Petty slights, annoyances, or isolated incidents, while bothersome, may not rise to the level of unlawful harassment. Under federal law, unlawful workplace harassment is defined by three key factors: the conduct must be unwelcome, it must be either severe or pervasive, and it must interfere with the victim’s work performance. If any of these factors are applicable in your situation, you may be eligible for financial compensation. Process of Filing a Formal Unlawful Workplace Harassment Complaint for Federal Employees If you have experienced unlawful harassment in a federal workplace, you have options to assert your rights. It is important to note that these are legal remedies, and the best way to achieve the results you deserve is to hire an experienced federal EEOC attorney. Contact Your EEO Counselor Each federal agency has an EEO counselor. Contact your designated counselor within 45 days of when the discrimination occurred. This is the first step prior to filing a formal complaint with the EEOC. The counselor can walk you through the process. You may have multiple options for filing. An experienced EEOC attorney can guide you through this process. Alternative Dispute Resolution After speaking with your EEO counselor, federal employees may participate in alternative dispute resolution. This typically means mediation and is a good opportunity to try to resolve issues at the lowest level. However, if this does not resolve the problem, it may be time to file a formal complaint. File a Formal Complaint If your unlawful workplace harassment dispute cannot be resolved using alternative dispute resolution, your EEO counselor will provide you with a written notice that gives you the right to file a formal complaint within 15 days. The notice will explain how to properly file the formal complaint. Agency Investigation Once the agency accepts your discrimination claim, they will initiate an investigation. Upon completion of the investigation, you may request an immediate final decision or a hearing before an administrative judge. Hearing Before an Administrative Judge Hearings are not always a part of the EEOC formal complaint process depending on your claim. During the hearing, your case is presented to the judge who reviews information from both sides and makes a decision whether or not there was discrimination. Final Decision and Appeal The federal agency will review the judge’s decision. If the judge found unlawful harassment, the agency can implement the judge’s orders or its own remedy. Federal employees may still appeal to the EEOC’s appellate division, the Office of Federal Operation (OFO), within 30 days if the remedy is unfavorable. Suing for Unlawful Workplace Harassment The Federal Employment Law Firm of Aaron D. Wersing, PLLC, can help you understand your complaint and the financial impact of the harassment. Our team is passionate about helping federal employees assert their rights and can help you collect evidence and build your case. Contact us online today or call (866) 626-5325.

Dec 26, 2024 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Retirement

Can You Lose Your Federal Retirement Benefits If Fired?

In addition to competitive pay, federal employees enjoy good benefits and a generous pension. What’s more, federal employees with at least one year of service have significant rights with respect to their job security. Federal employees have a reputation for being hard to fire because of these rights and the corresponding processes. Nevertheless, agencies may fire federal employees for various reasons, including poor performance, misconduct, or downsizing. If you’re a federal employee, you’ve probably wondered, can you lose your federal retirement benefits if fired? How Federal Retirement Benefits Work The Federal Employee Retirement System (FERS), administered by the Office of Personnel Management (OPM), awards retirement benefits to eligible employees. FERS covers employees who started their service with the government after January 1, 1987. The Civil Service Retirement Act (CSRS) covers federal employees who started working for the government before that date. FERS is a retirement program that provides benefits from Social Security, a Thrift Savings Plan (TSP), and a Basic Benefits Plan. The first two are transferable to other jobs if a federal employee leaves before retirement. Employees are vested in the TSP after three years and in an annuity after five years. However, they always retain their own TSP contributions and government matching funds, even if terminated before three years of service. For example, the federal minimum retirement age for employees born in 1970 or later is 57. Although the eligibility rules vary slightly depending on service length, federal employees with more than 10 years of service receive an annuity immediately upon reaching their MRA. Employees with 5-10 years of service can receive an annuity starting at age 62. Federal employees with at least 10 years of service can elect to take an immediate retirement or defer it. FERS reduces immediate retirement benefits by 5% per year for each year the employee is under age 62. Disability and early retirement may have slightly different timelines depending on the employee’s age and years of service. If you have questions about your federal retirement benefits, a federal employment lawyer can provide advice on your eligibility and the benefits available to you. Do Federal Employees Lose Their Retirement If They’re Fired? The short answer is no. Unfortunately, the misconception that you can lose your federal retirement benefits if fired persists even among federal employees. Many employees incorrectly believe that they will lose their federal retirement benefits if the agency fires them. Federal employees typically do not lose their retirement benefits if they are fired, provided their retirement is vested. Basic disciplinary actions or termination do not affect earned retirement benefits. However, convictions for certain crimes, such as treason or espionage, can result in forfeiture of federal retirement benefits. Keep vested pension funds after termination. However, entitlement to the full pension amount depends on specific conditions, and you might lose some or all of it in certain cases. Resigning from a federal job is less severe than removal, preserving the integrity of your employment record. Resigning allows you to give notice, prepare for departure, and leave on good terms with your employer. Employees unaware of this may be tempted or pressured to resign if they know they are about to be fired. These employees are often under the wrong impression that by resigning, they can save the benefits they would otherwise lose. This was exactly the situation in Morrison v. Department of the Navy. In that case, the Department of the Navy alerted an employee that an adverse employment action was pending against him. The Department urged him to resign to avoid losing his retirement benefits. Ruling on the case, the Merit Systems Protection Board (MSPB) noted that retirement benefits earned over the course of a federal career “are generally available upon separation from federal service, even when the separation is agency initiated.” To be clear, this means that when an agency fires a federal employee—whether for cause, poor performance, reduction in force, or otherwise—that employee remains entitled to any vested retirement benefits. There are very limited exceptions to this rule (discussed below), but for the vast majority of federal employees, they will never be an issue. How Federal Employees Can Lose Their Retirement Benefits As mentioned above, there are only a few narrow circumstances in which federal employee will lose their retirement benefits. Under 5 U.S.C. § 8312, federal employees forfeit their retirement benefits only if they are convicted of one or more specific federal crimes. There are more than 20 in total, each covering an act against the national security of the United States, including: Related statutory sections cover additional crimes that would render a federal employee ineligible for benefits. These include: Federal employees who do not commit any of those crimes don’t have to worry about losing their benefits. Can Federal Employees with Voluntary Early Retirement Lose Their Retirement Benefits If Fired? The Voluntary Early Retirement Authority (VERA) allows government agencies to temporarily reduce the minimum age and service requirements for retirement benefits. Agencies usually use VERA to offer employees an incentive to retire voluntarily, often during a restructuring, downsizing, or reorganization. Rather than involuntarily reducing the number of employees at the agency, it may make VERA offers or Voluntary Separation Incentive Payments (VSIP) to willing employees. Unlike with FERS or CSRS, federal employees fired for poor performance or misconduct cannot take advantage of discontinued service annuities under VERA. However, they may still be eligible for a deferred benefit. Federal employment lawyers familiar with government retirement plans can help you assess your options. If you accepted a voluntary early retirement offer from a government agency, a federal employment lawyer can also advise you of your rights moving forward. Wondering If You’ll Lose Your Benefits After Being Fired? Contact Our Federal Employment Attorney The Law Office of Aaron D. Wersing has been helping federal employees with their retirement and disability benefits for many years. During that time, we’ve helped hundreds of clients reclaim their jobs, stop discrimination, and resolve other issues in the workplace. If you resigned based on false information...

Dec 26, 2024 | By Aaron D. Wersing | Read Time: 6 minutes | Federal Retirement

Master the Steps to Federal Disability Retirement Now

Federal employees who experience disability often face considerable stress. From handling pain and multiple doctor appointments to worrying about finances and an uncertain future, a federal employee can be overwhelmed. The last thing that a disabled federal employee should have to deal with is filing complex paperwork to apply for federal disability retirement benefits. At the Federal Employment Law Firm of Aaron D. Wersing, PLLC, our federal employee disability retirement lawyers take the worry out of applying for benefits. We help our disabled-federal-worker clients so that they can focus on their health and their families. Our hands-on approach keeps our clients informed throughout the entire process, from completing the initial paperwork to the appeal of benefit denial. We are experienced in all aspects of Federal Employees Retirement System (FERS) disability retirement benefits so that federal employees don’t have to be. For assistance, please contact us online or call (833) 833-3529 today. Requirements For Applying For FERS Disability Retirement To be eligible for the FERS disability program, federal employees must have worked in a covered position for at least 18 months. Additionally, the employee must have become disabled during their employment, and the disability is expected to last for at least one year. Importantly, however, a work-related injury or illness need not have caused the disability. Federal employees can apply for disability retirement benefits at any age. What Disabilities Qualify for Federal Government Disability Retirement Benefits? To qualify for federal government disability retirement benefits, an employee must experience either a physical or mental disease or injury. The employee’s disability must prevent “useful and efficient service” in the employee’s current job with the federal government. Essentially, the federal employee must be unable to perform one or more essential job functions of their current position. If the employing federal agency can accommodate the worker’s medical condition, the employee may continue to work in his or her current position. In that case, the employee will not be eligible for federal disability retirement. Alternatively, if the employing agency can transfer the disabled employee to a different job, known as the accommodation of last resort, the employee will not be entitled to disability retirement benefits. The new job should be at the same grade or pay level and in the same commuting area. In short, the employee may apply for federal disability retirement only if the employing agency is unable to accommodate the employee’s disability. Is It Hard to Get Federal Disability Retirement? Qualify for Federal Disability Retirement by Providing Extensive Medical Documentation That Proves How Your Condition Limits Your Ability to Perform Job Duties. Secure Detailed Medical Reports, Test Results, and Physician Opinions to Demonstrate the Extent of Your Disability. Five-Step FERS Disability Retirement Application Process Secure federal disability retirement by providing comprehensive medical documentation that proves how your condition impairs your job performance. This process requires detailed medical reports, test results, and physician opinions, which can take significant time to gather. Federal Disability Retirement (FDR) is challenging to obtain due to factors like applicant circumstances and the nature of the disability. Successfully navigating the process requires understanding legal standards, submitting comprehensive medical evidence, and meeting procedural deadlines. There are five essential steps that a federal employee needs to follow to apply for FERS disability retirement. 1. Apply for Social Security Disability Benefits Why? Because when a federal employee applies for FERS disability retirement, the employee must indicate whether he or she has applied for Social Security disability benefits. Remember, you do not have to be approved for SSDI, but you must apply. The applicant also must attach a copy of the Social Security application receipt or award notice to the FERS disability retirement application. If a disabled employee receives Social Security disability payments, the amount of federal disability retirement payments under FERS will be reduced. Importantly, if the Social Security Administration denies disability benefits, federal employees still may be entitled to FERS disability retirement payments. 2. Complete Standard Form 3107, Application for Immediate Retirement Form 3107 is available from federal personnel offices or online here. Federal employees must file their application for federal government disability retirement benefits while still employed with the government or within one year of their separation date. The Application for Immediate Retirement is several pages long and asks for detailed information, including: Form 3107 also includes the Certified Summary of Federal Service, SF 3107-1. The employing agency completes this certification form to provide a history of the employee’s federal jobs, earnings, and FERS coverage. You can apply for FERS disability retirement even if the agency has not yet completed this form. After the agency completes that certification, the employee must review and sign it, attesting that it is accurate. The agency also should complete the Agency Checklist of Immediate Retirement Procedures, which is part of Form 3107. In addition, depending on your responses to certain questions, supplemental documentation may be required, such as a marriage certificate, W-4 form, or a DD-214, for example. For guidance on how to complete the application, disabled federal employees can review the instructions that accompany the Application for Immediate Retirement. They may also read an informational pamphlet SF 3113 titled Applying for Immediate Retirement Under the Federal Employees Retirement System. 3. Complete Standard Form 3112, Documentation in Support of Disability Retirement Application Disabled federal employees need to provide documents that support their FERS disability retirement application. Standard Form (SF) 3112 includes five main forms, some of which are completed by the applicant and others to be completed by their physicians or agency. In general, employees use these forms to document their medical condition to show that they are disabled and unable to perform their job duties. The disabled employee must complete Standard Form 3112A, Applicant’s Statement of Disability. On that form, the applicant describes his or her disease or injury and how it affects current job duties. The applicant then lists the physicians and dates of treatment that can support his or her claim of disability. Next, the federal employee must ask each doctor to...

Dec 26, 2024 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Retirement

Federal Retirement and Your Service Computation Date—What to Know

Working for the federal government comes with many benefits. As a federal employee, you can enjoy regular working hours, ample health benefits, a generous retirement package, and some protections against being fired or laid off. However, many of these retirement benefits depend on your service computation date (SCD). For that reason, it’s essential to understand what a service computation date is and how to calculate your own service computation date. Once you understand your service computation date, you can plan your retirement date and assess when you will be able to access certain employment perks. If you have questions about your federal retirement and your service computation date, call (866) 340-4430 or contact us online today. Our federal employment lawyers are ready to help. What Is a Service Computation Date (SCD)? Active Duty Service Computation refers to a method used to calculate an individual’s service time for benefits purposes. This computation involves establishing a Service Computation Date (SCD), which can be an actual or estimated date. Calculate active duty service time using the Service Computation Date (SCD) to determine federal service duration for benefits. Determine federal service benefits using the Service Computation Date (SCD), which reflects actual or constructed federal service duration. SCDs are applicable in both the current Federal Employees Retirement System (FERS) and its predecessor, the Civil Servant Retirement System (CSRS). That said, there are several different SCDs. A more precise service computation date definition depends on the type of SCD. Below are the four different types of SCDs. Leave Service Computation Date Your leave service computation date relates to your annual leave accrual. All federal employees gather annual leave at a rate of four hours per pay period during their first three years in service. Determine the rate at which an employee accrues annual leave—4, 6, or 8 hours per pay period—based on the service creditable for leave accrual purposes. Leave SCD determines if the employee earns four, six, or eight hours of annual leave per pay period and appears in block #31 of SF-50. Retirement Service Computation Date A service computation date is the date the federal government uses to decide your benefit eligibility and when your benefits will begin. Determine retirement eligibility by calculating an employee’s Service Computation Date (SCD), based on Federal service time. The SCD typically corresponds to the start date of an individual’s first Federal appointment under CSRS, CSRS-Offset, or FERS. However, the leave SCD and retirement SCD can vary if you served in the military prior to joining the federal service. Military veterans can choose to add their time in the military to their time in the federal service by “buying back” their military time and making that period of service count towards their SCD. To do this, veterans must submit a “deposit” equal to a small percentage of their military base pay when they were on active duty. Thrift Savings Plan Service Computation Date The Thrift Savings Plan (TSP) is a savings and investment retirement account that constitutes one of the core pillars of FERS. The TSP allows the employee to contribute their own funds towards a retirement account. The government will then match the employee’s contributions up to a certain point. It’s almost like a 401K plan operated by the government. 5 CFR §1603 includes a vesting requirement for the funds contributed by the government. Under this requirement, the government’s contributions to an employee’s TSP only vest after the employee has three years of service. The TSP SCD represents the date that a TSP participant begins to fulfill the three-year vesting period. Unlike the retirement SCD and leave SCD, the TSP SCD does not include prior military service. Reduction in Force Service Computation Date Although rare, federal agencies occasionally lay off employees through a reduction in force (RIF). The agency determines who to lay off first according to seniority. The earlier your federal government RIF SCD, the lower the chance that your agency will lay you off. Unlike the other SCDs, your RIF SCD can be adjusted by your performance ratings over the previous four-year period. Your appointment type can also affect your RIF SCD. How Can I Calculate My Service Computation Date? Now that we’ve discussed the concept of the various service computation dates, you might be wondering, What is my service computation date? As you might be able to guess by now, the answer depends on which service computation date you are trying to calculate. The leave SCD is easy to obtain because it is listed on your SF-50. However, the other SCDs are harder to calculate because they are affected by factors like prior military service and past performance. For more information on your SCD, you should either contact your human resources office or a federal employment attorney. Are You Considering Whether to Sue Your Federal Employer? Federal agencies are far from perfect. A mistake by your employer could easily affect your service computation date and your access to government employment benefits. If you think that your federal employer has incorrectly calculated your SCD or is wrongly denying you benefits, contact the Law Office of Aaron D. Wersing, PLLC. Over the years, we’ve helped hundreds of federal employees with a wide variety of federal employment problems. We are dedicated to safeguarding the rights of federal employees. Don’t hesitate to contact us or call (833) 833-3529.

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