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Jan 29, 2021 | By Aaron D. Wersing | Read Time: 5 minutes | Wrongful Termination

Can a Federal Employee Sue Their Employer?

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

Jan 29, 2021 | 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 MRA for employees born in 1970 or later is 57. Although the eligibility rules vary slightly depending on service length, federal employees with more than 10 years of service receive an annuity immediately upon reaching their MRA. Employees with 5-10 years of service can receive an annuity starting at age 62. Federal employees with at least 10 years of service can elect to take an immediate retirement or defer it. FERS reduces immediate retirement benefits by 5% per year for each year the employee is under age 62. Disability and early retirement may have slightly different timelines depending on the employee’s age and years of service. If you have questions about your federal retirement benefits, a federal employment lawyer can provide advice on your eligibility and the benefits available to you. Do Federal Employees Lose Their Retirement If They’re Fired? The short answer is no. Unfortunately, the misconception that you can lose your federal retirement if fired persists even among federal employees. Many employees incorrectly believe that they will lose their federal retirement benefits if the agency fires them. However, the truth is that federal employees whose retirement benefits have vested are all but guaranteed to receive those benefits, subject to a few exceptions. Employees unaware of this may be tempted or pressured to resign if they know they are about to be fired. These employees are often under the wrong impression that by resigning, they can save the benefits they would otherwise lose. This was exactly the situation in Morrison v. Department of the Navy. In that case, the Department of the Navy alerted an employee that an adverse employment action was pending against him. The Department urged him to resign to avoid losing his retirement benefits. Ruling on the case, the Merit Systems Protection Board (MSPB) noted that retirement benefits earned over the course of a federal career “are generally available upon separation from federal service, even when the separation is agency initiated.” To be clear, this means that when an agency fires a federal employee—whether for cause, poor performance, reduction in force, or otherwise—that employee remains entitled to any vested retirement benefits. There are very limited exceptions to this rule (discussed below), but for the vast majority of federal employees, they will never be an issue. How Federal Employees Can Lose Their Retirement Benefits As mentioned above, there are only a few narrow circumstances in which a federal employee will lose their retirement benefits. Under 5 U.S.C. § 8312, federal employees forfeit their retirement benefits only if they are convicted of one or more specific federal crimes. There are more than 20 in total, each covering an act against the national security of the United States, including: Gathering, transmitting, or losing defense information; Espionage; Treason; Enlisting to serve against the United States; Aiding the enemy; Disclosure of classified information; and Perjury under federal law. Related statutory sections cover additional crimes that would render a federal employee ineligible for benefits. These include: Fleeing the United States to avoid prosecution; Refusing to testify before a federal grand jury about involvement with a foreign government or other interference with national security; and Falsifying information on an employment application about the employee’s previous association with groups advocating for the overthrow of the government. Federal employees who do not commit any of those crimes don’t have to worry about losing their benefits. Can Federal Employees with Voluntary Early Retirement Lose Their Retirement Benefits If Fired? The Voluntary Early Retirement Authority (VERA) allows government agencies to temporarily reduce the minimum age and service requirements for retirement benefits. Agencies usually use VERA to offer employees an incentive to retire voluntarily, often during a restructuring, downsizing, or reorganization. Rather than involuntarily reducing the number of employees at the agency, it may make VERA offers or Voluntary Separation Incentive Payments (VSIP) to willing employees. Unlike with FERS or CSRS, federal employees fired for poor performance or misconduct cannot take advantage of discontinued service annuities under VERA. However, they may still be eligible for a deferred benefit. Federal employment lawyers familiar with government retirement plans can help you assess your options. If you accepted a voluntary early retirement offer from a government agency, a federal employment lawyer can also advise you of your rights moving forward. Hire a Federal Employment Attorney The Law Office of Aaron D. Wersing has been helping federal employees with their retirement and disability benefits for many years. During that time, we’ve helped hundreds of clients reclaim their jobs, stop discrimination, and resolve other issues in the workplace. If you resigned based on false information about the status of your retirement benefits, we can help. Contact us today or call us at (833) 833-3529 for a free case review.

Jan 29, 2021 | By Aaron D. Wersing | Read Time: 6 minutes | Federal Retirement

How Do I Calculate FERS Retirement With a Calculator?

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

Jan 29, 2021 | By Aaron D. Wersing | Read Time: 5 minutes | Federal Retirement

What Is the FERS Disability Processing Time?

If you’re a federal employee and can’t work due to a medical condition, your employer has you covered. The federal government’s Federal Employment Retirement System (FERS) offers disability retirement benefits to employees in your situation. But if you are claiming FERS benefits, you may wonder, What is the FERS disability retirement processing time? After getting the answer to the first question, you may then wonder, why does it take so long? Additionally, is there a way to speed up the process? If you are looking for answers to these questions, read on. Our FERS disability attorneys will explain what you need to know. What Is the FERS Disability Retirement Processing Time? The turnaround time for a FERS disability retirement application varies from case to case. Sometimes the Office of Personnel Management (OPM) can do it in as little as three months. Other times it can take longer than a year. The average time, however, is six to nine months. Many factors affect the processing time. Not getting a decision within a reasonable amount of time can be more than just frustrating. If you don’t have significant savings or have dependents, losing your ability to work can put you in dire financial straits. While you can’t move to the front of the line, you can help ensure you don’t have to go to the back of the line again by properly submitting all of your paperwork in line with the OPM protocol. For a more in-depth discussion of the FERS disability retirement timeline and any related issues, don’t hesitate to contact the Law Office of Aaron Wersing PLLC for help. Our firm focuses on federal employment law, so we know the ins and outs of FERS disability retirement. With our experience, we can help to ensure your application and related documents are properly filed and filled out. Our job is to help you, and we take that charge seriously. Why Does It Take So Long? Several things make this application process take a long time. These factors can also make the timeline difficult to predict in a given case. Perhaps the most important contributing factor is that the OPM, which makes these decisions, does so on a first-come-first-served basis. When you submit your application, it is impossible to know how many applications are in front of you. The number can vary widely. Also, the OPM is a sizable bureaucratic network. They are responsible for all federal employees (2.1 million in 2020). As such, the gears of the federal government can take a while to turn. This is unavoidable, but there are ways that may help expedite an application. What Else Might Make a Decision Take Longer? A very important factor in how long your decision will take depends on your status with the agency. If you have already been separated from federal service for more than 30 days when you submit your application, your application is processed quicker. This is because your application goes straight to OPM in Boyers, PA, where it gets processed and issued a civil service annuity (CSA) number. After getting a civil service annuity number, the application goes to OPM headquarters in Washington D.C., where a decision is made. Contrast this with the process that an application from someone who is still on agency roles as an employee, or within 30 days of separation. In such instances, an application will need to go through several offices before arriving at a decision. First, your application goes to the specific agency you work for to process. Then, many agencies will send your application to their centralized HR facility for further processing. After this point, your application will be sent to Boyers, PA for a CSA number. How Does OPM Determine FERS Disability Retirement Eligibility? The following seven factors help guide the OPM in their decision-making process regarding your application. These requirements are cumulative. In other words, they all must be met. You have a diagnosed medical condition; There is a deficiency in the service your job requires, which can be a deficiency in attendance, conduct, or in the performance of at least one critical element of your position. There is a causal relationship between your medical condition and the service deficiency; The medical condition is expected to last a year or more; The condition was not pre-existing or, if it was, it did not become disabling until after you began serving in your position; Your disability cannot be accommodated; and You cannot be reassigned to another position. If the federal agency you work for can provide reasonable accommodations that will allow you to work with your present condition, they should do so. Similarly, if your federal agency cannot accommodate you in your position, it should reassign you to a different qualifying job vacancy at the agency, if such a position is available. This type of reassignment is known as the “accommodation of last resort”. If you can be accommodated or reassigned, you will not be eligible for FERS disability retirement benefits. Keep in mind that accommodation must actually accommodate your medical needs as long as it will not place an undue burden on your agency, and a reassignment must actually be to a position that you are able to perform with your medical condition and symptoms. What Can I Do If I Don’t Get a Decision? If a decision takes too long, you may have a right to appeal. Failure to respond is essentially a constructive denial that you can appeal. An administrative law judge at the Merit Systems Protection Board (MSPB) will hear your case and determine eligibility. Follow the steps outlined below to help with the appeal process. The amount of time that is “too long” is not set in stone, so a lawyer can be very helpful in this instance. If your application is taking too long, the best thing you can do is be diligent in your follow-up. Once you submit your application, you should inquire as to your application status monthly. Document your inquiry:...

Dec 18, 2020 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

VA Accountability and Whistleblower Protection Act of 2017: What Potential Whistleblowers Need to Know

For years, the U.S. Department of Veterans Affairs (VA) has faced criticism over its ability to serve veterans effectively. Reports from the VA’s Inspector General dating back to 2006 note problems with malpractice, mismanagement, and corruption. Despite a budget in the hundreds of billions of dollars, some VA facilities continued to provide lackluster care and support for veterans. President Trump signed into law The VA Accountability and Whistleblower Protection Act of 2017 as a way to address some of these issues. Since then, this Act has been used as a “fast track” to disciplinary actions against VA employees, many of them low to mid-level employees. The Act has faced much criticism since its enactment and it has caused many problems, however, one silver lining is the protection it provides to whistleblowers. The Act provides important rights to VA employees who blow the whistle on mismanagement within the VA. What Is the VA Accountability and Whistleblower Protection Act? The VA Accountability and Whistleblower Protection Act is a federal law designed to better regulate the VA. The Act established the Office of Accountability and Whistleblower Protection (OAWP) within the VA to improve its service to veterans. The OAWP’s purpose is to hold VA officials and employees accountable for their actions in running the VA. The OAWP also provides oversight to ensure the proper treatment of whistleblowers who expose poor management or misconduct within the VA. One important change the VA Accountability and Whistleblower Protection Act made was the shortened deadline for appeals to the Merit Systems Protection Board (MSPB), which was reduced from 30 calendar days to 10 business days. What Is a Protected Whistleblower Disclosure? The Act protects both current and prospective employees of the VA when they disclose certain information. There are two main classes of information that qualify for whistleblower protection under the Act: Disclosures of evidence of a violation of law, rule, or regulation; and Disclosures of evidence of gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety. The Act protects whistleblowers by requiring the VA to develop criteria used to evaluate the performance of supervisory employees. The Act requires these criteria to promote the protection of whistleblowers, by improving how reported concerns are addressed and how whistleblowers are treated. In other words, VA employees in supervisory roles must maintain an environment that encourages employees to report misconduct without fear of retaliation or discipline for doing so. The whistleblower protections offered under the Act prohibit prosecution or reprisal against VA whistleblowers if their disclosures are lawful. All disclosures reported to Congress, the VA Inspector General, or another investigatory agency (like the OAWP or EEOC) are lawful. How Do I File for Whistleblower Protection? Whistleblower protection under the VA Accountability and Protection Act applies automatically to employees of the VA who have filed a complaint of whistleblower retaliation to either the Office of Special Counsel (OSC) or OAWP. The OAWP offers an online intake form for fast, anonymous reporting. After affirming your employment status with the VA and the nature of your complaint, you can describe the retaliation or misconduct and submit the complaint. A complaint with the OAWP is not appropriate for allegations involving laws administered by the Equal Employment Opportunity Commission (EEOC), such as claims of discrimination or disparate treatment. A complaint should be filed with the EEOC for allegations of discrimination, harassment, or a hostile work environment and you should get in contact with an EEOC lawyer right away, VA whistleblowers can also file complaints with the U.S. Office of Special Counsel (OSC) if they witness prohibited personnel practices by another federal employee. Federal law prohibits 14 specific kinds of conduct, known as prohibited personnel practices (PPPs), by federal employers. The PPPs range from discrimination and harassment to hiring others based on their relationship to the hirer (i.e. nepotism). A VA whistleblower attorney can help you decide where you should file your complaint based on your situation. Depending on the nature and severity of the misconduct you experience, you may be able to obtain better remedies filing in one office versus another. How Long Do You Have to File a Whistleblower Complaint? In many cases, a whistleblower should file their complaint as soon as possible. This is due to the enactment of protections which can be extremely helpful if initiated early. An effective whistleblower complaint is thorough but direct and contains sufficient, clear evidence to support your claims. Submitting a complaint too soon may result in less evidence at the beginning, but you can continue to provide additional information as the claim develops. A VA whistleblower attorney can help you determine when you should file your complaint and what you should expect during the process. A whistleblower attorney can also provide you with practical advice regarding protecting your identity and what you should do if you face retaliation for coming forward. Contact a Department of Veterans Affairs Whistleblower Attorney Whistleblowers play an important role in holding government agencies accountable. At The Law Office of Aaron D. Wersing, PLLC, we focus on a variety of issues that affect federal employees, including whistleblower complaints. If you’ve witnessed misconduct at the VA or the federal agency where you work, we can help you blow the whistle. Contact us today or give us a call at (833) 833-3529 to schedule a free consultation about your case.

Dec 17, 2020 | By Aaron D. Wersing | Read Time: 7 minutes | Wrongful Termination

Everything You Need to Know About Hiring a Federal Employee Attorney

Working for the U.S. government offers a number of benefits that make federal employment a great option. However, federal employees are subject to different rules than private citizens in some cases. As a federal employee, it is important to understand what your rights are and how you can use them to your advantage to protect your job and your wellbeing. Our Federal EEOC lawyers will explain. What Are My Rights as a Federal Employee? Subject to some limited exceptions, federal employees have the same rights in the workplace as any other employee. Broadly speaking, you are entitled to a safe workplace where you can report unsafe conditions or illegal conduct without retaliation. Your individual rights range from protection against discrimination to certain advanced procedures in the case of downsizing of your office. If your employer disciplines or fires you, you have the right to appeal. And depending on where you work and whether you are a bargaining unit employee, you may be able to take advantage of union representation. Federal Employee Civil Rights There are four main federal civil rights laws that cover federal employees: Title VII of the Civil Rights Act of 1964; The Age Discrimination in Employment Act of 1967; The Equal Pay Act of 1963; and Section 501 of the Rehabilitation Act of 1973. Together, these laws protect federal employees from discrimination and harassment based on a number of protected traits. As a federal employee, you have a right to a safe workplace free of discrimination or harassment based on your race, color, religion, sex, disability, or age. Title VII of the Civil Rights Act protects against both intentionally and unintentionally discriminatory practices. If you have been subject to any office policy or conduct causing even indirect discrimination, you may have a claim under the Civil Rights Act. The Equal Pay Act prohibits the government from engaging in discriminatory payment practices based on your sex. This Act applies to jobs that are “substantially equal,” where the employees perform work of similar skill and responsibility in the same working conditions. Even if two positions are not strictly identical, the Equal Pay Act will protect against pay discrimination between them. In addition, the Act covers all forms of pay, not just salary or hourly wages. Although people are hesitant to share details about their salary or wages, you may have a claim if you suspect that you are being paid less than your coworkers, including fewer bonuses, allowances, or accommodations, based on your sex. Protection Against Age and Disability Discrimination The Age Discrimination In Employment Act and Section 501 of the Rehabilitation Act protect you against discrimination based on your age or status as a person with a physical or mental impairment. The Rehabilitation Act in particular allows federal employees to receive certain rights found in the Americans with Disabilities Act (ADA). Section 501 requires that federal employees not only refrain from discriminating against such persons but that they take proactive steps to recruit them. Workplace Safety Rights for Federal Employees The Occupational Health and Safety Administration (OSHA) oversees workplace safety. As a federal employee, you are entitled to a safe workplace free of known health and safety hazards. You also have the right to report workplace hazards without fear of firing, demotion, or discipline for doing so. Federal Employee Protection Against Prohibited Personnel Practices If you are a regular Title 5 federal employee, you may be able to appeal a disciplinary action or certain personnel decisions to the Merit Systems Protection Board (MSPB). Personnel decisions are those made within an organization that affect employees’ work lives, such as demotions, transfers, suspensions, or discharge. The MSPB is responsible for hearing employee appeals of these actions and others to ensure that federal employees receive due process. If you are a non-probationary employee (i.e. you have been hired for a permanent position and have successfully completed any probationary period), you can file an appeal with the MSPB if you are suspended for more than 14 days, discharged from your position, or demoted. Various other personnel decisions, OPM retirement issues or retaliatory disciplinary actions, are also appealable. The Office of Special Counsel is responsible for investigating and prosecuting the 14 personnel practices prohibited by 5 U.S.C. § 2302(b), most notably whistleblower retaliation. In addition to discrimination, federal law prohibits: Coercing political activity, Hiring relatives (nepotism), Retaliating against employees for filing appeals, Violating veteran’s preference requirements, or Deceiving or obstructing a person from seeking employment. If you have experienced any of these adverse actions, a federal employee attorney can help. Whistleblower Protections Federal employees may be in a position to expose fraud or other wrongdoing that occurs within the government. Under the Whistleblower Protection Act And Whistleblower Protection Enhancement Act (WPEA), federal employees have protection against retaliation for their disclosure of certain misconduct, including: Illegal actions, Gross mismanagement, Gross waste of funds, Abuse of authority, and Substantial and specific danger to public health and safety. Whistleblowers provide an important public service, and the breadth of protection for federal employee whistleblowers demonstrates that importance. In addition to the whistleblower act, many federal agencies are responsible for administering their own whistleblower protection laws. OSHA, for example, administers workplace-safety-related whistleblower protections under Section 11(c) of the Occupational Safety and Health Act. Keep in mind, however, that these agencies may not offer the same confidentiality as broader federal whistleblower laws. What Happens If You Get Fired from a Federal Job? The full consequences of termination from a federal job depend on what kind of federal employee you were and the pay grade you had achieved at the time of discharge. If you believe you were fired from your federal job in circumstances that are illegal or that violate any of the prohibited personnel practices, you should contact a federal employee attorney as soon as possible. A federal employment attorney can review your termination and help you determine whether your termination was lawful. If it was not, your attorney can help you file an appeal. Because the MSPB...

Dec 8, 2020 | By Aaron D. Wersing | Read Time: 2 minutes | Wrongful Termination

FLRA Decision Reverses VA Removals Under 38 USC 714

In recent years, perhaps no law has had a greater effect on the Department of Veterans Affairs employees as has The Veterans Affairs Accountability and Whistleblower Protection Act, codified in part in 38 USC 714. The Act has provided the Agency a “fast track” to suspend, demote, or remove Title 5 VA employees. Under this authority, not only are deadlines for an employee’s MSPB appeal rights shortened from 30 calendar days to 10 business days, but the burden of proof on the Agency was lessened to a much lower standard, making it even easier for the VA to prove their case. However, on November 16, 2020, the Federal Labor Relations Authority (FLRA) issued a major win for federal employees. This decision will likely require the VA to reinstate, with back pay, thousands of employees who were removed for performance deficiencies under the Act. In its decision, the FLRA upheld an arbiter’s ruling that the Act did not supersede the AFGE Collective Bargaining Agreement (CBA) which requires the VA to institute a performance improvement plan (PIP) to allow an employee an opportunity to improve before having a removal imposed. In this case, the VA argued that the Act superseded the CBA, and therefore Title 5 employees could be removed for performance deficiencies without going through the PIP process. This argument initially appeared valid too, since an act of Congress would in fact trump an agreement between a federal agency and a union. Had the VA’s argument prevailed, it would have marked another blow to the rights of federal employees at the VA by completely abrogating the PIP process in these cases. In its response, and in the opinion of the FLRA, AFGE correctly argued that while the Act lays out new procedures for removal actions under the authority of §714, these procedures only take effect once a disciplinary action is proposed. The PIP process takes place prior to any discipline being proposed and therefore is a completely separate process not covered by the Act. As a result of this decision, it appears that the Department of Veterans Affairs will have to reinstate all employees who were removed under Section 714 for performance deficiencies and who were not placed on a PIP prior to having their removal proposed. This would amount to hundreds, if not thousands, of reinstatements with retroactive back pay. Get Help from a Federal Wrongful Termination Lawyer Today The Law Office of Aaron D. Wersing is an experienced federal employment law firm that assists wrongfully terminated federal employees from across the country. Attorney Aaron D. Wersing understands the new, complex issues you face under §714 and vows to work tirelessly to protect your career. Combining extensive legal knowledge and experience with empathy and commitment allows us to help protect your legal rights and get the justice you deserve If you believe you have been wrongfully terminated under federal employment protections, whether it’s under 38 USC §714, Chapter 75, Chapter 43, or as a probationary employee, contact us or give us a call at (833) 833-3529 for help.

Sep 30, 2020 | By Aaron D. Wersing | Read Time: 4 minutes | Workplace Discrimination

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

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

Sep 30, 2020 | By Aaron D. Wersing | Read Time: 4 minutes | Workplace Harassment

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 harassment laws. These laws not only protect employees’ rights, but they 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 Harassment in the Workplace? 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: Race, Religion, Sex (including pregnancy), Color, National origin, Age (40 or older), Disability, or Genetic information. 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 unlawful workplace harassment. Examples of illegal 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 the same sex as their harasser. In 2019, sexual harassment claims accounted for 10.3% of the EEOC’s total complaints. Harassment also includes retaliation for engaging in protected EEO activity. Anti-discrimination laws provide that harassment against people in retaliation for a 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 corrective action. 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. Consult a Federal Employee Lawyer Today If you are the 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 the 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 or give us a call at (833) 833-3529 to schedule an initial consultation or to speak with a federal workplace harassment attorney.

Sep 30, 2020 | By Aaron D. Wersing | Read Time: 4 minutes | Wrongful Termination

Learn How Federal Laws Protect You from Wrongful Termination

Employers have an obligation to treat their employees fairly, in accordance with federal statutes. These federal laws provide a variety of protections that prevent your employer from wrongfully terminating you. Understanding these protections can help ensure that you receive fair treatment from your employer. If you have been wrongfully terminated, you might have a valid legal claim against your former employer. A federal wrongful termination lawyer from the Law Office of Aaron D. Wersing can help you get the justice you deserve. Wrongful Termination & Employment Discrimination A variety of federal laws prohibit an employer from terminating you based on traits and characteristics that include: Race, Age, Sex, Skin color, Religion, National origin, and Disability. You cannot be terminated because you are pregnant or gave birth, or due to any medical condition related to pregnancy or childbirth. You cannot be fired based on any of your genetic traits or ancestry. Your employer cannot fire you based on your marital status, gender identity (including transgender status), or sexual orientation. Employers must also provide reasonable accommodations to their employees based on a disability as well as religious beliefs and practices. Further, federal law protects you from potential retaliation by an employer. For example, your employer cannot terminate you because you complained about being discriminated against, participated in or assisted with a discrimination investigation, or filed a legal claim alleging discriminatory treatment. You might have been subject to a different type of discriminatory termination than those listed here. Talk to an experienced employment attorney to determine whether you have been wrongfully fired by your former employer. Wrongful Termination & FMLA The Family and Medical Leave Act (FMLA) allows you to take an extended (unpaid) leave from your job for specified family and medical reasons, such as if you suffer from an illness or if you need to take care of a sick family member. Both parents are allowed to take unpaid leave for the birth of their child. You may also take leave for specific reasons related to a family member’s military service. FMLA provides flexibility for how you can take your leave, including arranging for an intermittent or reduced work schedule. After you return from your leave, the employer must reinstate you in an equivalent position with equivalent compensation and benefits. FMLA is a complex area of the law. A wrongful termination lawyer can explain your rights and entitlements under FMLA and help you determine if you might have a viable case. Wrongful Termination & Workplace Safety Certain federal laws protect your health and safety in the workplace. Your employer must ensure that your workplace is free from any known safety or health hazards. Employers must provide applicable safety training in a language you can reasonably understand and ensure that any equipment or machinery you work on is safe to operate. Your employer must provide you with appropriate safety equipment and protect you from toxic substances while on the job. Your employer cannot legally terminate you for speaking out about potential safety issues, for filing a report about a workplace injury, or for filing a valid workers’ compensation claim. You are also legally entitled to review the results of workplace testing to identify potential hazards. This right to review workplace testing is now significantly more complex due to the COVID-19 pandemic. Changes to federal laws and to their interpretation are ongoing. If you were terminated due to a workplace safety issue, talk to an attorney as soon as possible to learn more about your legal rights to pursue a claim. Other Potential Wrongful Termination Issues You could be wrongfully terminated for any number of reasons beyond those noted above. Your employer might not be able to legally fire you for actions involving a labor union, for example. You also cannot be terminated for refusing to take a lie detector test in most cases. You likely cannot be fired in most cases for refusing to break the law in the course of your job or for being a whistleblower. The best way to determine the viability of your case is to talk to an experienced employee rights or employment law attorney. How Can a Federal Wrongful Termination Attorney Help You? Consulting an experienced attorney can give you the knowledge and information you need to pursue justice. In many cases, employers wrongfully terminate employees because they simply don’t know the laws or how those laws apply to their business. In other cases, however, an employer might fire you despite knowing that it violates the law. Wrongfully terminated employees may be afraid of what could happen if they pursue a claim or think they can’t afford a lawyer to help them. In most cases, you can consult an attorney at no cost, as most offer complimentary case evaluations. How attorney’s fees work for you will depend on the attorney and the nature of your case. However, if you were wrongfully terminated, you could be entitled to recover your attorneys’ fees, as well as compensation for lost wages and benefits, the difference in the cost of your medical insurance, emotional distress, or other related damages. Get Help from a Federal Wrongful Termination Lawyer Today Attorney Aaron Wersing of the Law Office of Aaron D. Wersing is an experienced employment law attorney who assists wrongfully terminated clients from across the country. At the firm, we understand the complex issues you face and vow to work tirelessly to protect your legal rights. Combining extensive legal knowledge and experience with empathy and commitment allows us to help protect your legal rights and get the justice you deserve. If you believe you have been wrongfully terminated under federal employment protections, contact Aaron Wersing today or give us a call at (833) 833-3529 for help.