Feb 19, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

What Is the MSPB Discovery Process & Why Is It Important?

For federal employees, preparing your appeal to the Merit Systems Protection Board (MSPB) can feel complex and intimidating. Even though it’s your legal right to challenge unfair or unjust adverse employment actions, many employees still feel disadvantaged compared to their agencies. Fortunately, employees can access a powerful tool to help level the playing field: the MSPB discovery process. During discovery, federal workers can obtain crucial evidence that can make a significant difference in the outcome of their appeal.  In this blog post, we’ll explain what federal employees should know about the discovery process in MSPB cases and how they can use it strategically to protect themselves and their careers. What Is the MSPB Discovery Process? Discovery is the legal process where both parties in a dispute exchange information before they meet in a formal hearing. It allows each side to gather and understand the evidence the other side is relying on. In MSPB appeals, discovery allows federal employees to collect documents, records, and testimony that can challenge the legitimacy of their agency’s decision. If you intend to claim that discrimination, retaliation, or procedural errors were behind your agency’s actions, discovery is vital to gathering the concrete evidence you might otherwise not have access to. What Does the MSPB Discovery Process Involve? Under MSPB discovery rules, federal employees must begin making information requests no later than 25 days after the acknowledgment order for the appeal is issued. The scope of federal discovery rules allows employees to request any information that they believe could help prove their case or detract from an agency’s claims. Here are some of the different ways that federal employees can seek information during MSPB discovery: For example, imagine a TSA officer is facing removal based on alleged misconduct. They use discovery to request emails between their supervisor and HR officials discussing the proposed termination. These emails reveal that personal bias motivated by the employee’s religious faith rather than performance issues influenced the decision. This evidence becomes key in proving that the action was unjustified and discriminatory. How to Use MSPB Discovery Effectively Many federal employees assume they already have all relevant information about their situation when they appeal to MSPB. However, this is far from the case.  Although federal agencies must share some relevant information with employees when they deliver the notice of proposed action, they often withhold other documents that could be crucial for your case. Don’t assume you understand the whole picture based on your agency’s initial disclosure. Additionally, the discovery process isn’t just about building your case—it’s also about anticipating the agency’s arguments. Discovery allows you to be proactive and avoid potential claims against you. For example, if you expect the agency to claim that your termination was due to performance issues, you can use discovery to obtain all performance reviews, commendations, and evidence that supports your track record. Discovery is a complex legal process, and navigating it can be challenging for federal employees whose careers may be on the line. The best way to make the most of the discovery process is to seek qualified legal assistance. An experienced federal employment lawyer can help draft information requests, stay on top of deadlines, and prepare a strong legal strategy to increase your chances of a positive outcome. Protect Your Federal Career with Trusted Legal Guidance  If you are facing an MSPB appeal, you need a legal team that understands the complexities of the discovery process and how to use it to your advantage. The Federal Employment Law Firm of Aaron D. Wersing PLLC has years of experience successfully supporting federal employees through their MSPB appeals. Our team can uncover key evidence, challenge agency defenses, and build a compelling case on your behalf. To learn more about how we can help you, contact our office today to schedule a consultation.

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Feb 19, 2025 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

MSPB and Affirmative Defenses: What You Should Know

Federal workers facing potential suspension, demotion, or removal often feel like the deck is stacked against them. Fortunately, federal law offers civil servants some key tools for challenging unfair agency actions, including the right to assert an affirmative defense before the Merit Systems Protection Board (MSPB). An affirmative defense can overturn or mitigate an agency’s disciplinary decision if successfully argued.  Read on to learn more about how affirmative defenses work, MSPB’s evolving approach to handling them, and how federal employees can use them to protect their job security. What Is an Affirmative Defense? An affirmative defense is a legal argument that federal employees can use to negate a federal agency’s adverse employment action. In an MSPB affirmative defense, an employee doesn’t just argue that an agency misinterpreted facts or lacked evidence for their decision. Instead, an affirmative defense tries to show that an agency’s action violated an employee’s rights or federal law.  Common affirmative defenses federal employees use when appealing to the MPSB include: Showing the MSPB that an agency engaged in misconduct in one of these acts is one of the most effective ways for federal employees to challenge and avoid career-damaging adverse actions.  How Do Affirmative Defenses Work? Raising an affirmative defense is not just about making allegations—it requires evidence and legal arguments. The federal employee has the burden of proof to show that their agency’s action was improper by “a preponderance of the evidence.” Put simply, they need enough evidence to show the agency violated relevant laws and regulations. This typically involves: For example, imagine a federal employee faces removal after reporting agency fraud to a law enforcement authority. This employee might build an affirmative defense based on whistleblower retaliation with emails establishing that the adverse action happened shortly after their report and testimony from coworkers confirming the agency’s hostile response. If the employee presents enough evidence to demonstrate the agency was motivated by retaliation, they could have their removal reversed. How Has the MSPB’s Approach to Affirmative Defenses Changed? Recent decisions have altered how the MSPB evaluates affirmative defenses.  In a 2022 ruling, the MPSB revised certain procedural standards that had provided some advantages to federal employees pursuing these defenses. For example, in the past, if an administrative judge made an error in ruling on a case involving an affirmative defense, the employee could automatically have their case reconsidered, even if their claim lacked substantive evidence or effort. Under the MSPB’s new guidelines, employees must make a more intentional effort to pursue affirmative defense cases. Otherwise, the MSPB has much more flexibility to dismiss a defense that doesn’t meet procedural requirements or lacks legal backing. Ultimately, federal employees must be careful and prepared when using affirmative defenses. Having the support of experienced legal counsel is essential for federal employees to ensure their case is presented correctly and given a fair chance. Dedicated Defenders of Federal Employee Rights Successfully asserting an affirmative defense before the MSPB requires deep knowledge of federal employment laws, procedural rules, and legal strategy. Fortunately, federal employees don’t have to take on the burden of building an affirmative defense alone. The Federal Employment Law Firm of Aaron D. Wersing has provided dedicated and personalized service to federal employees and their families for years. Our team has extensive experience with MSPB cases and employee affirmative defenses, from harmful procedural errors to whistleblower retaliation claims. If you are facing an adverse action, contact our office today to schedule a consultation and learn more about how we can help. Resources: 5 U.S.C. § 7701(c)(2)(A), link.

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Feb 11, 2025 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

Overview of COLA for Federal Employees

Annual cost-of-living adjustments (COLA) safeguard the financial security of federal retirees and their loved ones. Every year, the government calculates and pays out COLA to help offset the toll that rising inflation takes on federal retirement benefits.  Most federal employees enjoying or approaching retirement recognize the importance of COLA. However, understanding how to calculate it isn’t always so straightforward.  In this blog post, we’ll discuss how cost-of-living adjustments work for federal employees. We’ll answer some common questions, including: Remember, always speak to a professional if you have specific questions about your federal employment benefits. An attorney trained in federal employment law is the best resource for qualified advice tailored to your unique situation. What Is the COLA for Federal Employees Based On? Annual cost-of-living adjustments for federal retirement benefits are tied to the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). The CPI-W measures the change in consumer purchasing power over time. To do this, the Department of Labor’s Bureau of Labor Statistics (BLS) collects monthly data on the cost of goods and services across the country. This includes information about the cost of food, housing, clothing, transportation, healthcare, education, recreation, and utilities. The Department of Labor uses this data on the inflation rate to make decisions about monetary policy and salary increases for civil servants. Since COLA aims to protect federal retirement benefits from eroding due to inflation, the CPI-W is an essential factor in the yearly cost-of-living adjustment calculator. Close to the end of the calendar year, the economists at the BLS compare the CPI-W from July, August, and September to the CPI-W from those months in the year before. Based on the rate of change in consumer prices, the BLS calculates whether eligible federal retirees can receive a COLA.  For example, in December 2023, the federal government announced the year’s COLA payments based on the change in CPI-W from the third quarter of 2022 to the third quarter of 2023. Retirees and beneficiaries eligible for COLA should have received their payments in January 2024. Is COLA the Same for All Federal Employees? No. The amount of COLA you’re eligible for depends on your federal retirement plan. Let’s break down the two major types of retirement systems that federal employees fall into. Federal Employees Retirement System (FERS) FERS is the current plan for managing retirement benefits for federal employees. It became effective in 1987 for all federal employees hired after 1983.  For FERS beneficiaries, COLA payments can be broken down as follows: In all cases, the amount of a COLA is rounded down to the next whole dollar.  Civil Service Retirement System (CSRS) You may be enrolled in the CSRS if you’re a long-time federal employee who began working before 1984. COLA calculations are simpler for CSRS employees. The adjustment is always equal to any positively calculated increase in CPI-W.  The COLA for federal employees in 2024 granted FERS beneficiaries an increase of 2.2%. For CSRS beneficiaries, the adjustment was 3.2%. To receive the full COLA payment, you must have been in retirement and receiving benefits for the full calendar year. If you retired within the last year, your COLA amount will be prorated. For example, imagine you retire in February 2024. By January 2025, when COLA is paid out, you’ll have been retired for 10 out of 12 months of the fiscal year, so you’ll receive ten-twelfths of whichever COLA payment you’re entitled to. Who Can Receive COLA? Eligibility for COLA also differs between the two federal retirement systems.  Under the current FERS plan, you’re eligible for COLA if you are: However, under CSRS, all retirees and eligible survivors can receive cost-of-living adjustments to benefits, regardless of age.  Questions About Your Federal Benefits? We Have Answers Navigating federal retirement plans can be overwhelming. Since cost-of-living adjustments change yearly, ensuring you’re receiving the benefits you’re entitled to can be challenging. If you have questions, don’t settle on generic advice from any employment lawyer. Contact the Federal Employment Law Firm of Aaron D. Wersing for qualified, reliable support from a trained federal employment lawyer. For years, our team of legal professionals has been helping shed light on the ins and outs of FERS and CSRS for beneficiaries and their loved ones. Our advocates can help you understand the rights granted by your federal retirement system and ensure you’re fully compensated for your years of service. To schedule a consultation, contact our office by phone or online.

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Feb 3, 2025 | By Aaron D. Wersing | Read Time: 4 minutes | FERS Disability

Can You Still Work While on FERS Disability?

Many federal employees rest easy knowing they have a disability retirement option in the federal government. Under the Federal Employees Retirement System (FERS), employees who are unable to perform their job duties due to a medical problem may be eligible for disability retirement. However, that doesn’t always mean you have a secure financial future. Most civil servants need additional income to supplement their federal disability payments. Despite this need, many federal employees choose not to work because they think having another job will make them ineligible for disability retirement benefits. But this raises some important questions. Can you still work while applying for disability benefits? Can you still work while on disability? The answer is that you can work while on FERS disability under certain conditions. Read on to learn more about the rules and regulations governing working while on FERS disability. We’ll separate the myths from the facts so that you can take action to secure your future.  Overview of FERS Disability Retirement FERS provides a comprehensive retirement and disability program for federal employees, including disability retirement benefits. You need to fulfill two requirements to be eligible for FERS disability retirement. First, you must have completed at least 18 months of creditable federal civilian service. Second, you must suffer a disability that makes you unable to successfully perform your job duties. The second requirement can take some time to complete because agencies will try to provide you with reasonable accommodation first. Your agency may also try to reassign you to another position. The Office of Personnel Management (OPM) is responsible for processing disability retirement applications and making determinations on eligibility. An employee approved for FERS disability retirement will receive a monthly annuity payment based on their length of service and the highest three years of average pay. Can You Still Work While on FERS Disability? So, can you work while on federal disability? Yes. As OPM itself makes clear, federal employees who receive FERS disability retirement benefits can generally work in the private sector without seeing a loss of their benefits.  That said, there are restrictions on how much income they can earn from their employment. OPM sees federal employees in either one of two categories. If you are under age 60, OPM will stop paying your disability annuity if they determine you can earn a certain level of income. That amount is 80% of the current rate of base for the position you had when you retired. OPM will send you a survey form called “Annuitant’s Report of Income.” In this survey, you must state all income earned from wages and self-employment. If you hit the 80% threshold, you will lose your disability benefits. You won’t lose your benefits immediately. Instead, you will not receive those benefits for six months after the end of the year that you hit the 80% mark. There are no earnings limits for federal employees who receive Social Security Disability Insurance (SSDI) benefits in addition to FERS disability retirement benefits. However, they must still meet the eligibility requirements for both programs and report their earnings to both the OPM and the Social Security Administration (SSA). Situations That May Cause You to Lose Your Disability Benefits OPM guidance specifies that you can lose your benefits in several other ways. One trigger for losing benefits is regaining employment in a position similar to your prior federal position. Another way involves periodic medical reviews. OPM will periodically review your disability eligibility. If they decide to review your case, they will ask you to obtain updated medical paperwork from your doctor. They will also inquire about your employment status. If your doctor communicates that you no longer have a disability, your disability payments will end. Furthermore, if you fail to respond to OPM’s requests, they will suspend your disability benefits.  What If I Am Age 60 or Older? If you are 60 or older, the situation changes significantly. OPM will conduct a periodic medical review only at your request. Moreover, the 80% threshold mentioned earlier in this article will not apply. That means you can work a private job paying more than your former government job while receiving your disability annuity. How to File for FERS Disability Retirement To apply for FERS disability retirement, federal employees must complete and submit Form SF 3107, Application for Immediate Retirement. You’ll also need to submit supporting medical documentation and other required forms. You send the application to your agency, which will forward it to OPM for review and determination. The application process for FERS disability retirement is often complex and time-consuming. Working with an experienced FERS disability retirement lawyer can help ensure your application is successful. Related Article: What Is The FERS Disability Processing Time? What About CSRS Disability Retirement? While this article has focused on FERS disability retirement, it’s important to note that it doesn’t cover all federal employees. A few, more senior employees may fall under the old Civil Service Retirement System (CSRS). The CSRS has a separate disability retirement program with its own set of limitations. Contact us today to learn more about your disability retirement options under the CSRS. Let Us Help You Overcome Federal Disability Retirement Challenges– Contact Our FERS Disability Lawyers Today If you are a federal employee considering applying for FERS disability retirement, you need legal assistance. You will probably also benefit from a lawyer if you are on disability retirement benefits and interested in working. In either scenario, the Federal Employment Law Firm of Aaron D. Wersing, PLLC, can help. Our experienced attorneys specialize in representing federal employees in a wide range of legal matters. In addition, we pride ourselves on providing incredible customer service and excellent outcomes. Reach out to us today.

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Feb 3, 2025 | By Aaron D. Wersing | Read Time: 2 minutes | Federal Employment Law

What Is Federal Employee Sick Leave Abuse?

Federal employees may at times face the temptation to call in sick so they can have an unscheduled day off. Federal employee sick leave abuse is a serious issue that all federal employees should try to avoid. Sick leave abuse occurs when employees repeatedly use sick leave for non-medical or unauthorized reasons. Abuse of sick leave laws exist which can carry significant penalties for those who misuse their sick leave. There are also a few ways that supervisors can spot and investigate sick leave abuse by federal employees. If your supervisor has accused you of being a federal employee who’s committed sick leave abuse, contact a federal employee sick leave abuse lawyer right away.  When Is It Okay to Use Sick Leave? The Office of Personnel Management (OPM), a federal agency that regulates the employment policies of most other federal agencies, states that federal employees may use sick leave when they need to:  OPM does not define what constitutes an abuse of sick leave. That said, it’s reasonable to assume that any use of sick leave for reasons other than those listed above could constitute “sick leave abuse,” especially if done repeatedly and within a short period of time.  Common signs of OPM sick leave abuse are: If an agency discovers that an employee is committing OPM sick leave abuse, the employee can face discipline. An employee can even face removal from federal service.  What Employers Can Do About Sick Leave Abuse While OPM does not define sick leave abuse, it does establish procedures for employers to require evidence from employees who request sick leave. Specifically, an agency may require “administratively acceptable evidence” before granting sick leave. The definition of “administratively acceptable evidence.” For example, if an employee requests sick leave to care for a family member, the agency may require that the employee provide proof of their relationship with the family member. If an employee claims sick leave to visit a doctor, the agency can request a doctor’s note that confirms the visit.  Do You Need a Federal Sick Leave Abuse Attorney? Let Us Help You Accusations of sick leave abuse are no joke. If you have been accused of abusing sick leave, you could be counseled, reprimanded, suspended, or even removed from your job. So if your supervisor has accused you of sick leave abuse, you need to contact a sick leave abuse attorney immediately.  When looking for an attorney that can help you defend your rights, it’s absolutely essential that you select someone who has familiarity with your situation and the federal workplace.  At the Law Office of Aaron D. Wersing,  PLLC., we concentrate on representing federal employees and protecting their rights. Our firm has the experience needed to help federal employees who have been accused of misconduct. Even if you aren’t sure whether you need an attorney, it takes no time at all to contact us. Call today! You might also be interested in:

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

Absence Without Leave (AWOL): Guidance for Federal Employees Nationwide

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

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

Who Can Appeal Adverse Actions to the MSPB?

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

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

What Conditions Are Considered Disabilities?

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

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

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

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

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

Due Process Issues in MSPB Cases

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

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