Nov 14, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Retirement

Can You Lose Your Federal Retirement If Fired?

In addition to competitive pay, federal employees enjoy good benefits and a generous pension. What’s more, federal employees with at least one year of service have significant rights with respect to their job security. Federal employees have a reputation for being hard to fire because of these rights and the corresponding processes. Nevertheless, agencies may fire federal employees for a variety of reasons, including poor performance, misconduct, or downsizing. If you’re a federal employee, you’ve probably wondered, can you lose your federal retirement benefits if fired? How Federal Retirement Benefits Work The Federal Employee Retirement System (FERS), administered by the Office of Personnel Management (OPM), awards retirement benefits to eligible employees. FERS covers employees who started their service with the government after January 1, 1987. The Civil Service Retirement Act (CSRS) covers federal employees who started working for the government before that date. FERS is a retirement program that provides benefits from Social Security, a Thrift Savings Plan (TSP), and a Basic Benefits Plan. The first two are transferable to other jobs if a federal employee leaves before retirement. These retirement benefits fully vest in employees after five years of service, though annuities won’t begin until an employee reaches minimum retirement age (MRA). For example, the 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 if fired persists even among federal employees. Many employees incorrectly believe that they will lose their federal retirement benefits if the agency fires them. However, the truth is that federal employees whose retirement benefits have vested are all but guaranteed to receive those benefits, subject to a few exceptions. Employees unaware of this may be tempted or pressured to resign if they know they are about to be fired. These employees are often under the wrong impression that by resigning, they can save the benefits they would otherwise lose. This was exactly the situation in Morrison v. Department of the Navy. In that case, the Department of the Navy alerted an employee that an adverse employment action was pending against him. The Department urged him to resign to avoid losing his retirement benefits. Ruling on the case, the Merit Systems Protection Board (MSPB) noted that retirement benefits earned over the course of a federal career “are generally available upon separation from federal service, even when the separation is agency initiated.” To be clear, this means that when an agency fires a federal employee—whether for cause, poor performance, reduction in force, or otherwise—that employee remains entitled to any vested retirement benefits. There are very limited exceptions to this rule (discussed below), but for the vast majority of federal employees, they will never be an issue. How Federal Employees Can Lose Their Retirement Benefits As mentioned above, there are only a few narrow circumstances in which federal employee will lose their retirement benefits. Under 5 U.S.C. § 8312, federal employees forfeit their retirement benefits only if they are convicted of one or more specific federal crimes. There are more than 20 in total, each covering an act against the national security of the United States, including: Gathering, transmitting, or losing defense information; Espionage; Treason; Enlisting to serve against the United States; Aiding the enemy; Disclosure of classified information; and Perjury under federal law. Related statutory sections cover additional crimes that would render a federal employee ineligible for benefits. These include: Fleeing the United States to avoid prosecution; Refusing to testify before a federal grand jury about involvement with a foreign government or other interference with national security; and Falsifying information on an employment application about the employee’s previous association with groups advocating for the overthrow of the government. Federal employees who do not commit any of those crimes don’t have to worry about losing their benefits. Can Federal Employees with Voluntary Early Retirement Lose Their Retirement Benefits If Fired? The Voluntary Early Retirement Authority (VERA) allows government agencies to temporarily reduce the minimum age and service requirements for retirement benefits. Agencies usually use VERA to offer employees an incentive to retire voluntarily, often during a restructuring, downsizing, or reorganization. Rather than involuntarily reducing the number of employees at the agency, it may make VERA offers or Voluntary Separation Incentive Payments (VSIP) to willing employees. Unlike with FERS or CSRS, federal employees fired for poor performance or misconduct cannot take advantage of discontinued service annuities under VERA. However, they may still be eligible for a deferred benefit. Federal employment lawyers familiar with government retirement plans can help you assess your options. If you accepted a voluntary early retirement offer from a government agency, a federal employment lawyer can also advise you of your rights moving forward. Hire a Federal Employment Attorney The Law Office of Aaron D. Wersing has been helping federal employees with their retirement and disability benefits for many years. During that time, we’ve helped hundreds of clients reclaim their jobs, stop discrimination, and resolve other issues in the workplace. If you resigned based on false information about the status of your retirement benefits, we can help. Contact us today or call us at (833) 833-3529 for a free case review.

Sep 16, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Retirement

Discontinued Service Retirement (DSR): What Is It?

A discontinued service retirement is a special type of retirement for employees who receive an involuntary separation from the federal service. In most cases, DSRs provide eligible employees with an immediate annuity payment. However, this annuity payment can be less than what an employee would normally receive. Few federal employees understand the differences between DSR and other retirement types, so read on to learn more about whether DSR applies to you. Understanding Your Discontinued Service Retirement Eligibility There are three main requirements to obtain a DSR. First, you need to have received an involuntary separation. Second, you have to meet certain age and service requirements. Third, you must not have rejected a “reasonable offer” of employment from your agency. Obtaining an Involuntary Separation The key feature of a DSR is that it only applies to employees with involuntary separations. The Office of Personnel Management (OPM) considers several following situations to qualify as “involuntary separations.” Reductions in force (RIF): Reductions in force occur when an agency lays off some employees in response to budget cuts. Unacceptable performance that is not caused by employee misconduct: This case might seem a bit confusing at first glance. However, there are several situations where an employee performs unacceptably for reasons other than misconduct, like injury or disability. Loss of position due to organizational changes or lack of funds: In most cases, an agency will try to transfer an employee after it changes or dissolves that employee’s position. However, you will be eligible for a DSR if your agency decides to separate you instead. Transfer of position or function outside your commuting area: While federal employees occasionally have to change offices, the government cannot force them to move outside their local area unless they have signed a mobility agreement. These are just a few situations that qualify as “involuntary separations.” Contact a federal employment attorney to learn more about whether your situation is an involuntary separation. Age and Service Requirements Assuming your separation was involuntary, you need to meet several other requirements to be eligible for a DSR annuity. First, you need to be at least 50 years old and have at least 20 years of federal service. However, if you have 25 years of federal service or more, you can be eligible for a DSR even if you are younger than 50. In either situation, at least five years of the employee’s federal service needs to be in civilian service. Military service can account for the other 20 years. Another important factor is the retirement service that covers your position. There are two primary retirement systems in the federal government. The first is the Civil Service Retirement System (CSRS), which applies to more senior federal employees. The second (and far more common) retirement system is the Federal Employee Retirement System (FERS). Both CSRS and FERS employees can receive a DSR. However, the requirements and procedures for obtaining a DSR vary between those two retirement systems. The differences are quite nuanced, so you should consult a knowledgeable federal employment lawyer for more information. The Reasonable Offer The final requirement for obtaining a DSR is that you must not have refused a “reasonable offer” from your agency. To be a reasonable offer, you must be offered a position in writing that is: A good match for your qualifications, With your agency (or successor agency), Within your commuting area, unless you have a mobility agreement with your agency, No more than two levels below your current grade or pay level. and The same service type. The position must also have the same work schedule. If you reject an offer that meets all of these criteria, then you cannot obtain a DSR. How to Get a Discontinued Service Retirement Assuming you meet these requirements, your agency should automatically provide you with a DSR annuity. But in some cases, your agency may first ask you to provide certain kinds of information to confirm your eligibility. Receiving a DSR can reduce the amount of your retirement annuity according to your retirement age. Specifically, for employees under the CSRS system, receiving a DSR reduces your other retirement benefits by one-sixth of one percent for every month that you are under age 55 when you retire. For instance, a CSRS employee that retires at age 47 will receive only 84% of their annuity because of their early retirement. For all FERS employees with a DSR, you can calculate your FERS retirement using the typical calculation for non-disability retirements here. Want to Learn More About DSR? We Can Help DSRs are poorly understood by most federal employees. In fact, even federal human resources departments can be unfamiliar with DSRs. As a result, your agency may wrongfully deprive you of a DSR after you receive an involuntary separation. If you want to learn more about DSRs or think that you might be eligible for one, you need to contact a skilled employment attorney immediately. A qualified federal employment lawyer can review your personnel file and apply the law to your situation. They can also help you understand your options and file a claim with your agency. But for obvious reasons, you need to have the right kind of lawyer if you want to maximize your chances of prevailing in court. If you’re looking for legal representation you can trust, reach out to the Federal Employment Law Office of Aaron D. Wersing, PLLC. Our team of dedicated legal professionals is highly experienced with federal employment issues of all kinds. And we are dedicated to preserving and protecting your rights as a federal employee. Give us a call today at 866-612-5956 or contact us online today to set up a free initial consultation. You can also set up an appointment with us online and read about our past results.

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. 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: Respiratory therapists, Vocational nurses, Psychologists, Occupational therapists, and Pharmacists. 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 call us at 866-612-5956 to set up a free initial appointment. You can also reach out online to set up an appointment.

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: A disabled veteran, A veteran who served on active duty in a war that Congress declared, A participant in a campaign or expedition that had an authorized campaign badge, or A veteran who separated from active duty within the past three years. 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 and set up a free initial appointment. 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.

Sep 9, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

What Does the U.S. Office of Special Counsel Do?

The U.S. Office of Special Counsel (OSC) is a federal agency that focuses on helping whistleblowers. The OSC primarily investigates claims of whistleblower retaliation and, if necessary, takes action against bad actors. Thus, the OSC plays a critical role in protecting whistleblowers and encouraging them to report bad actors. Read on to learn more about the OSC’s methods and how to file a complaint. If you are considering filing an OSC complaint, you should contact a qualified employment law attorney first. What Exactly Does the OSC Do? The OSC is an independent federal agency that looks into claims of government wrongdoing. It also accepts complaints from whistleblowers, protects them from retaliation, and holds bad actors accountable across the government. The OSC also investigates claims of prohibited personnel practices. This category includes things like illegal discrimination, nepotism, and forcing employees to engage in political activity. Because of its unique mission, the OSC can force federal employees and agencies to cooperate in an investigation. It can also force federal employees to testify in court and reveal important and relevant documents. A nd unlike many other federal agencies that investigate claims, the OSC protects whistleblower’s personal information. What Kinds of Wrongdoing Does the OSC Review? When it comes to claims of wrongdoing, there are six major kinds of whistleblower disclosures that the OSC reviews: Gross mismanagement—This phrase does not include a minor mistake by your manager once in a while. Gross mismanagement exists if there is a constant pattern of arbitrary action, fraud, or abuse by your manager that has a notable economic impact. Gross waste of funds—Like gross mismanagement, this phrase refers to significant expenses that make no sense. An expense that reasonable people might disagree about generally will not make the cut. Violation of a law, rule, or regulation—This category is mostly self-explanatory. It does not matter whether the wrongdoer acted intentionally or not. Censorship—OSC specifically focuses on censorship claims that have to do with scientific, technical, or analytical information. One example might be a government scientist who disputes an agency’s decision to classify environmental research about a terrible ecological threat to humanity. Substantial and specific dangers to public health or safety—In any free country, the public has a right to know about significant dangers. So the OSC protects whistleblowers who reveal these dangers as long as the dangers are not vague or insignificant. Abuse of authority—As with gross mismanagement and gross waste of funds, there needs to be a significant degree of abuse. This may mean there is a regular pattern of abuse, or a single instance that was completely out of line. When in doubt, it is better to come forward with a claim of wrongdoing rather than ignore it. If you are debating whether to report wrongdoing, contact a federal whistleblower attorney for guidance first. What is a Prohibited Personnel Practice? Federal law defines 14 prohibited personnel practices (PPPs). These include the following: Asking for or considering recommendations for employment for reasons other than a person’s qualifications for the job; Deceiving or preventing someone from competing for federal employment; Coercing someone to engage in political activity, like donating to a campaign fund; Retaliating against someone for filing a complaint or exercising their rights; Retaliating against someone for reporting wrongdoing; Discriminating against someone because of conduct unrelated to their job; Taking a personnel action against a federal employee for improper or illegal reasons; Taking a personnel action that would violate a U.S. veteran’s preference; Carrying out a nondisclosure agreement or policy that does not give rights to whistleblowers; Illegal discrimination, including race, sex, gender, age, color, and national origin discrimination; Nepotism, which means hiring a person because of their family relationships rather than their qualifications for the job; Influencing someone to withdraw from competing for a government position; Giving unauthorized preference to a person for employment, either to improperly help them or improperly injure the chances of another person; and Accessing a person’s medical record, especially if doing so to further another PPP. As you can see, some of these categories are very broad. Thankfully, a qualified attorney will be able to help you determine whether your situation falls within one of these categories. How Do I File a Disclosure of Wrongdoing to the OSC? The OSC used to offer three different complaint forms online. Depending on the type of claim you were filing, you had to use a different complaint form. More recently, the OSC introduced a new form for all complaints called OSC Form-14. You can fill out a copy of OSC Form-14 online and submit it on the OSC’s website. However, you should know that filling out a complaint in a way with the OSC that best correlates to the law is complicated. To maximize the chances of your claim being investigated, consult an attorney to help you file out the form. We Can Help You File an OSC Complaint or Defend Your Rights Whether you’re considering filing a complaint or suffering whistleblower retaliation, you should obtain legal assistance. Many government wrongdoers will go to great lengths to protect themselves and punish anyone trying to expose their misdeeds. Intimidation and threats are all too common. On top of that, the procedures and laws surrounding whistleblower complaints are quite complex. If you’re looking for an experienced federal employment lawyer, you have come to the right place. Our team at the Federal Employment Law Office of Aaron D. Wersing, PLLC has tremendous experience with whistleblower and PPP complaints before the OSC. We can help apply the law to your case, inform you of your legal options, and provide you with outstanding legal representation. Let’s work together to defend your rights and get your fair compensation. Time is critical, so don’t wait another second. Call us at 866-612-5956 today. You can also reach out to us online.

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

Absence Without Leave (AWOL)

AWOL, an acronym meaning “absence without official leave,” is a non-pay status that is used for absences that are not approved by management. 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: Going on leave without submitting a leave request with a supervisor; Going on leave even though the leave request was denied; Showing up late to work; Failing to report at the scheduled time; Leaving work early; Taking an extended period of medical leave without providing medical documentation. 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). 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: Beyond a reasonable doubt; Clear and convincing evidence; Preponderance of the evidence; and Substantial evidence. 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. 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: A notice of proposed adverse action at least 30 days before the proposed punishment; A detailed description of the charges and the alleged conduct; An opportunity to review the evidence against you and the materials they relied on in charging you with AWOL; and A meaningful opportunity to reply in writing or orally to a deciding official. Without these protections, any adverse action taken against you...

Sep 5, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | MSPB

Can Federal Employees Be Disciplined for Lack of Candor?

We all know that lying to your supervisor or another federal employee can lead to big trouble. But what happens when a federal employee does not lie but fails to share everything they know? Can you be punished for withholding information? The short answer is yes. The charge for this kind of situation is called “lack of candor,” and lack of candor can lead to discipline. Agencies tend to use “lack of candor” when they can’t charge an employee with the more serious charge of “falsification.” But where falsification involves a federal employee who actually lies, lack of candor centers around the employee’s failure to be forthright. While less serious than falsification, lack of candor discipline can lead to a serious black mark on your federal record, and for some employees such as law enforcement officers, can end one’s career. For that reason, you should consult a dedicated federal employment attorney if you are facing a lack of candor charge. Lack of Candor Meaning While it is one of the most common misconduct charges seen in the federal workplace, it is hard to describe lack of candor. A legal definition of the concept is hard to find. Instead, many legal practitioners treat lack of candor as a broader concept—one which involves a failure to disclose something which should be disclosed to make a statement accurate and complete. Because of its somewhat ambiguous meaning, some federal supervisors use lack of candor as a catch-all charge to throw at an unpopular employee. This behavior is especially common when a supervisor is harassing or retaliating against an employee that they do not like. What are the Elements of a Lack of Candor Charge? The Merit Systems Protection Board (MSPB) has said there are two main elements of a lack of candor charge. First, the employee must give incorrect information or incomplete information. Second, the employee must give incorrect or incomplete information knowingly. Accidentally giving an investigator information that later turns out to be incomplete or incorrect cannot lead to a valid lack of candor charge. What Is the Difference Between Lack of Candor and Falsification? As we stated above, lack of candor only involves concealing information or giving incomplete information. Falsification requires an affirmative misrepresentation, a lie. To prove a falsification charge, the agency needs to establish that you had a specific intent to deceive. But proving someone’s intent is quite difficult to do. Consequently, agencies face an uphill battle when charging employees with falsification. Unlike falsification, lack of candor does not have an intent element. All the agency has to prove is that you knew that the information you were giving was incorrect or incomplete. This is significantly easier than proving you had a specific intent to deceive. This is another reason that agencies tend to charge employees with a lack of candor rather than falsification. It’s simply easier for them to make the charge stick. How Do You Prove a Lack of Candor Charge? The standard of proof for a charge is the amount of evidence the government needs to produce to win its case. For most charges, including lack of candor, the standard of proof is preponderance of the evidence. This means the agency only has to convince a fact-finder that the alleged conduct was more likely than not to have occurred. That is a relatively low standard, making it easy for the agency to prove its case against employees without legal assistance. That issue aside, lack of candor cases almost always involve a credibility determination. In other words, it requires the judge to decide whether the employee accused of wrongdoing seems trustworthy when they give their version of the facts. The presence or absence of other evidence is also critical. Are there multiple documents with your signature that make contradictory statements? Did any witnesses hear you make two different claims at various times? These types of evidence can single-handedly change the outcome in a lack of candor case. A skilled attorney will interview witnesses and collect evidence that supports your testimony. That is one of many reasons that having an attorney at your side is absolutely essential if you have been charged with lack of candor. Are There Any Defenses to a Lack of Candor Charge? Yes. One defense is that you did not know that the information you related was incomplete or incorrect. Maybe you did not recall the information or did not fully understand the question. Alternatively, you can assert that your agency acted against you because of illegal discrimination. Illegal discrimination includes any different treatment based on certain protected characteristics. A few examples of protected characteristics include race, sexual identity, gender, sexual orientation, disability, and military service. When you meet with a federal employment attorney, they will most likely ask you if you can think of similar employees who have received different treatment. If you can think of those kinds of employees, it may be a sign of illegal discrimination in your case. What Are My Rights If I Have Been Charged with Lack of Candor? As a federal employee, you have several basic due process rights. Whether your employer charges you with lack of candor or another charge, they must generally do three things. First, they must give you at least a 30-day advance notice regarding any proposed adverse action. Second, they must give you a specific and detailed description of your alleged misconduct. Third, they must give you the right to review the materials relied on to propose the action and a meaningful opportunity to defend yourself. If you do not receive these due process rights, a judge may overturn the agency’s action even if they meet their burden of proof. If the discipline is sustained, you may be able to appeal to the MSPB, or pursue remedy through EEO our OSC routes. We Can Help You Defend Yourself Against a Lack of Candor Charge If your supervisor has charged you with lack of conduct, get legal help right away to protect your career....

Sep 2, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

A Guide to the Hatch Act for Federal Employees

The executive branch of the federal government and its numerous employees need to work for the benefit of all Americans. Therefore, federal employees need to maintain an appearance of political impartiality within the workplace. To help employees be impartial, Congress passed the Hatch Act of 1939. The Hatch Act places several limitations on the kinds of political activities federal employees can engage in. Running afoul of these limitations is serious and is grounds for discipline. So if you are aware of a Hatch Act violation, you should report it to the U.S. Office of Special Counsel (OSC). However, reporting a Hatch Act violation may lead to retaliation, so make sure you contact a knowledgeable employment law attorney first. What is the Hatch Act? The Hatch Act is a law that aims to keep the din of partisan politics out of the federal workplace. At the same time, it tries to protect federal employees’ first amendment rights. Unlawful Activities Under the Hatch Act Covered Hatch Act employees cannot do any of the following: Run for office in a partisan political election. However, federal employees can be candidates in non-partisan elections. Many local positions, like sheriff or judge, are nonpartisan. Solicit or discourage the political activity of any person doing business with the government. In other words, federal employees need to keep politics out of their dealings with business partners of the government. Invite subordinates to engage in partisan political activity or attend political events. Obviously, this prohibition applies to supervisors. Whatever their personal relationship with their subordinates, supervisors must avoid suggesting or recommending they go to political rallies or vote for a particular candidate. Use their official authority to interfere with an election. For instance, military commander should not use their power to shut down a polling station. Ask for, accept, or receive political contributions. There is a very narrow exception to this rule, but employees must meet several conditions to enjoy this exception. One requirement is that both employees be in the same labor organization. Engage in political activity while on duty, in the workplace, or in a government vehicle. Political activity includes things like wearing partisan political clothing, making political contributions, and doing campaign-related tasks. While these prohibitions apply to most employees, some types of federal employees face additional restrictions. Examples include career senior executive service (SES) employees and administrative law judges (ALJs). Acceptable Activities Under the Hatch Act Despite these limitations, you can still do many political activities under the Hatch Act. Some of these activities include: Registering to vote and voting in partisan elections—You can vote for any person you like, even if that person is an independent or belongs to a third party. Helping with voter registration drives—Merely encouraging people to vote does not mean they have to support a political party. Joining and serving in partisan political groups—This means your co-worker Bob can participate in the local Democratic Party group as long as he does not ask you to join him. Attending political rallies and political meetings—This includes local town-hall meetings, candidate rallies, and even partisan presidential conventions. Making speeches for or against candidates in a partisan election—Keep in mind, though, that you can only do this outside of the federal workplace. Expressing your opinions about political issues—You can express your opinions about non-partisan opinions even in the workplace. Expressing your opinions about partisan political issues or candidates—Unlike non-partisan issues, you cannot carry out this activity if you are at work or using your official authority. This list is not exhaustive. So you may still be able to carry out some political activities, especially when you are not on duty. If you want to learn more about what the Hatch Act allows, ask a federal employment lawyer. Which Federal Employees Does the Hatch Act Cover? The Hatch Act applies to federal employees working for the executive branch of the U.S. government. This includes the vast majority of federal employees. Just a few of the many executive branch agencies are: The Department of Defense, The Department of Education, The Department of Energy, The Department of Agriculture, and The Environmental Protection Agency The Hatch Act does not cover employees working for the legislative or judicial branches. But it can be difficult to know which branch of government is served by which agencies. A few agencies that fall under the legislative branch are: The Government Accountability Office The Copyright Office The Congressional Budget Office The Library of Congress The House of Representatives The Senate The U.S. Capitol Police Examples of judiciary branch agencies and organizations include: All federal courts The U.S. Sentencing Commission The Federal Judicial Center The Administrative Office of the U.S. Courts Despite these exceptions, a good rule of thumb is to assume that you are covered by the Hatch Act. Interested in Learning More About the Hatch Act? Every two to four years, the Hatch Act becomes a hot issue within the federal workplace. During those times, it can be difficult to learn about what is acceptable under the law. And on top of that, there are all kinds of misinformation and misunderstandings about the Hatch Act. If you would like to learn more about what you can do under the Hatch Act, you need to consult a good attorney. Our team at the Federal Employment Law Office of Aaron D. Wersing, PLLC is standing by to help you. We want you to be able to exercise your political rights freely. We can also help you if your supervisor or another bad actor is violating the Hatch Act. With our team, you can rest assured you will get top-notch legal advice. Reach out today by calling us at (833) 833-3529 or contacting us online.

Aug 29, 2022 | By Aaron D. Wersing | Read Time: 3 minutes | Federal EEOC

Can I Be Fired if I File an EEOC Complaint?

Everyone has the right to work in a place free from discrimination. Unfortunately, discrimination in workplaces is still a widespread issue. What’s more, tens of thousands of workers lose their jobs, are forced to quit, are demoted, and endure harassment each year because they complained about discrimination. The Equal Employment Opportunity Commission (EEOC) reports that, in 2021, individuals filed 34,332 retaliation claims. This means that retaliation charges constitute over 56% of the total charges filed during that period. The Federal Employment Law Firm of Aaron D. Wersing focuses on serving federal employees by investigating, filing, representing, and defending the federal EEO complaints of federal employees. Federal Protections Against Discrimination and Retaliation Numerous federal laws protect workers against discrimination in the workplace, including: Title VII of the Civil Rights Act, Title I of the Americans with Disabilities Act, Rehabilitation Act of 1973 Age Discrimination in Employment Act, and Equal Pay Act. Under these and other laws, it’s illegal for an employer to treat employees differently because of their race, national origin, gender, sex, religion, disability, or other protected characteristic. In addition to protecting workers against discrimination, the law also protects workers against retaliation. Under the law, it’s illegal for employers to fire or demote employees because they filed or helped someone else file an EEOC complaint. Can I Be Fired if I File an EEOC Complaint? If an employee files an EEO complaint against their federal agency, such as the USPS, Department of Veterans Affairs, Department of Defense, or others, it’s illegal for their employing agency to take retaliatory action. In other words, your employer can’t fire you for filing an EEO complaint, but they can fire you for nondiscriminatory reasons. For many federal employees, such a situation would lead to several avenues of appeal, and it’s important to choose the right forum to appeal a removal or other adverse disciplinary action. In most situations, a federal agency via its management attempts to cover up their true incentives for firing a worker after the worker files an EEOC complaint. Likewise, employers may not fire a worker but instead set up workplace conditions that leave the worker with no choice but to quit. For example, your employer may “forget” to schedule you, or they may make comments about your complaint. These practices are typically illegal if related to the EEOC complaint, and may constitute a constructive removal, involuntary resignation, or similar. The Federal Employment Law Firm of Aaron D. Wersing is standing by to provide EEOC retaliation guidance. Proving that your federal agency fired you (or forced you to quit) because of your federal EEOC complaint can be difficult. Having a knowledgeable federal EEOC attorney on your side is critical to uncovering the evidence you need to prove your case. How Can I Prove that My Employer Fired Because I Filed a Federal EEOC Complaint? It’s uncommon for an employer to come out and say that they are firing a worker because they filed an EEOC complaint. So, how can a worker prove that their employer fired them because of the discrimination claims? To prove retaliation, these three basic elements need to be at play: The employee engaged in protected activity, which is usually filing an EEO complaint, but could be other actions as well such as requesting a reasonable accommodation. The agency imposed disciplinary action or other negative action, and The agency’s decision to take these actions was because the employee filed an EEO complaint. When investigating retaliation claims, the EEOC looks at the circumstances of when the employer fired the worker. The EEOC may look at the following: The timing of when you filed the complaint with the EEOC and the retaliation, The validity or invalidity of the stated reasons for firing you, and Other evidence that shows that the employer fired you because you filed the EEOC complaint. Talking to an experienced attorney is critical to discovering and preserving evidence. In addition, there are strict deadlines in place for when workers must file a retaliation charge. An attorney can help you meet these deadlines. We Are Compassionate and Knowledgeable Federal Employment Attorneys You Can Trust The Federal Employment Law Firm of Aaron D. Wersing proudly serves federal employees throughout the United States out of our Houston home office and remotely throughout the country. We’ve helped hundreds of federal workers secure the relief and justice they deserve. Call us at (866) 508-2158, or contact us online today.

Jun 8, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

What Should Whistleblowers Know Before They Act?

Whistleblowers are underappreciated heroes, and calling out wrongdoing in the federal workplace is a noble action. However, it is not something you should do lightly. Before you do anything, you need to know what a whistleblower is. On top of that, it is vital that you understand your rights as a whistleblower before you act. So if you are considering reporting wrongdoing, read this whistleblower guide carefully. We will discuss the definition of a whistleblower and the protections that a whistleblower action provides. You should also contact one of our attorneys at the Federal Employment Law Firm of Aaron D. Wersing, PLLC for specific legal advice regarding your situation. What Whistleblowers Should Know First: The Definition of a Whistleblower The most important thing you need to know is what makes you a whistleblower according to the law. In other words, to become a whistleblower, what actions do you need to take? In the federal workplace, you need to make a “protected disclosure” to qualify for whistleblower protections. The Office of Personnel Management (OPM) defines a “protected disclosure” as “any disclosure of information that an employee, former employee, or applicant for employment” reasonably believes shows one or more of the following: Violation of any law, rule, or regulation, Gross waste of funds, Substantial and specific danger to public health and safety, Gross mismanagement, or Abuse of authority. This means that complaining about your boss’s curt comment or your coworker’s annoying personal habits will probably not rise to the level of “protected disclosure.” However, these terms use broad wording intentionally to encompass a wide variety of other inappropriate behaviors. When crafting these laws, Congress sought to give federal employees the benefit of the doubt in a whistleblower action. One of the ways they accomplished this goal was by requiring that whistleblowers only “reasonably believe” the information they passed along constituted evidence of misconduct. Put another way, if you disclose alleged misconduct in whistleblower action that turns out not to be prohibited behavior upon further investigation, you still receive whistleblower protection as long you reasonably believed the behavior was inappropriate. Whistleblower Protections Federal law protects whistleblowers from any and all retaliatory “personnel actions.” But what is a personnel action? Federal law defines that phrase to include the following: A position appointment, A promotion, A detail, transfer, or reassignment, A restoration, A performance evaluation, A change in pay, A change in benefits, and An award. Orders to undergo psychiatric testing or examination and “any other significant change in duties, responsibilities, or working conditions” are also personnel actions. That means that if your employer demotes you, changes your duties, rescinds an award, or gives you a bad performance review because of your disclosure, they have broken the law. How Should I Disclose Wrongdoing? The law does not require whistleblowers to make a protected disclosure to a certain person. On the contrary, whistleblowers have wide latitude on how to make a protected disclosure. For example, they can disclose wrongdoing to their first-line supervisor or second-line supervisor. They can also disclose wrongdoing to their agency’s Inspector General, the Office of Special Counsel (OSC), or even Congress itself. You will receive whistleblower protections as long as you reasonably believe that your whistleblower action reveals misconduct. Can I Choose to Remain Anonymous? It depends. When you make a protected disclosure to the OSC, you can choose to remain anonymous. Furthermore, most agencies’ Inspector General offices have anonymous hotlines that you can use to make a protected disclosure. But the OSC can publicly reveal your identity if they determine it necessary because of imminent danger to public health or safety. Further, if you want to claim whistleblower retaliation, you must generally show that your whistleblowing contributed to the retaliatory action. This may be harder to show if you remain anonymous. Can Probationary Employees Receive Whistleblower Protections? Yes. Federal employees are considered “probationary employees” for their first year of federal service. As probationers, they enjoy far fewer rights than non-probationary employees. For example, probationary employees cannot appeal adverse actions, including terminations, to the Merit Systems Protection Board (MSPB). However, probationary employees can appeal alleged acts of retaliation for whistleblowing to the MSPB. Consult a Lawyer Before You Become a Whistleblower Even though most people applaud whistleblowers, becoming one can change your career forever. Unfortunately, whistleblower retaliation is an all too common sight in the federal workplace. So before you make a protected disclosure, it’s best to reach out for legal advice from an experienced federal employment attorney. Here at the Federal Employment Law Office of Aaron D. Wersing, our talented legal team can help you file a complaint with the OSC or your employer. We can also verify that your complaint meets the standard of a “protected disclosure” so that you can qualify as a whistleblower. With our decades of experience protecting federal employees, we know what retaliation looks like and how to fight it. So we are prepared to defend you aggressively against retaliation by your employer and protect your rights. Don’t risk your federal career by going it alone. Reach out online or call us at 833-833-3529 to set up a free initial consultation today.

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