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

Conduct Unbecoming Charges for Federal Employees

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

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

What Is Unlawful Harassment Under Federal Law?

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

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Dec 26, 2024 | By Aaron D. Wersing | Read Time: 5 minutes | Federal Retirement

Can You Lose Your Federal Retirement Benefits If Fired? Guidance for Federal Employees Nationwide

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

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

Master the Steps to Federal Disability Retirement Now

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

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

Federal Retirement and Your Service Computation Date—What to Know

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

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

Can Federal Employees Be Disciplined for Lack of Candor?

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

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

Civil Service Retirement System (CSRS) vs. Federal Employees Retirement System (FERS)

One of the greatest benefits of government work is generous retirement. The federal service includes two systems, the Civil Service Retirement System and the Federal Employees Retirement System. Because of the complexity of both systems, employees often have questions about the provisions of each one. We also commonly get asked, CSRS vs. FERS: Which is better? So to help address questions about these programs, we’ll cover the essential characteristics of both systems.  What’s the Relationship Between CSRS and FERS? The Civil Service Retirement System was created in 1920 when Congress passed the Federal Employees’ Retirement Act. At the time, the government was looking for ways to attract and retain skilled workers, and retirement benefits were seen as an important part of that effort. Originally, federal employees had to contribute to their own retirement accounts, but the government also contributed to those accounts. On top of that, all CSRS retirement benefits used a unique formula that took into account an employee’s length of service and highest average salary. Over the years, the CSRS underwent a number of changes, including the addition of survivor benefits and disability benefits. However, by the 1980s, the system was facing a number of financial challenges. Many of the retirement benefits promised under the system had become unsustainable, and there were concerns about the long-term viability of the program. In response to these challenges, Congress passed the Federal Employees Retirement System Act of 1986, which established the FERS. Congress intended FERS to be more cost-effective and sustainable over the long term. FERS did not go into effect immediately. Instead, it only began to come into effect after 1984. Between the years of 1984 and 1987, employees could choose which retirement plan to join. All federal employees entering federal service after 1986 had to use FERS. Despite the creation of the FERS system, the CSRS continues to be a significant part of the federal retirement landscape. Many federal employees who were hired before 1984 still receive coverage under CSRS, so the system remains an important source of retirement benefits for millions of Americans. CSRS retirees replace more pre-retirement income, while FERS retirees can build greater wealth through the TSP to boost retirement income. How Do the Federal CSRS vs. FERS Compare in Retirement Benefits? When comparing CSRS (Civil Service Retirement System) and FERS (Federal Employees Retirement System), it’s essential to note that CSRS offers the same retirement annuity for all retirees who retire at 55 or later, while FERS reduces retirement annuity for those retiring before the age of 62. Additionally, under CSRS, disability retirement amounts to 40% of the employee’s ‘high-three‘ salary. Under the CSRS system, retirement began at age 55. FERS retirement ages depend on birth year, allowing retirement between ages 56 and 60. Special retirement options exist for demanding jobs, such as law enforcement and air traffic control. The retirement annuity is calculated by multiplying the high-three average salary by a percentage factor that varies based on the employee’s length of service. The percentage factor is 1.5% for the first five years of service, 1.75% for the next five years, and 2.0% for each year of service after 10 years. Under FERS, retirement pay is composed of three parts: a basic benefit, a Social Security benefit, and a Thrift Savings Plan (TSP) benefit. The basic benefit implements a similar formula to the CSRS’s “high-three” system. However, the percentage factor is lower, usually around 1%. The Social Security benefit is based on the employee’s earnings history and the age at which they begin receiving benefits. Finally, there is the TSP, which functions like a 401k or another investment plan. Both the employee and the government contribute to the TSP over time. Meanwhile, the employee can invest their TSP funds in one of several investment opportunities. When the employee retires, they can enjoy those contributions and any returns on those investments.  CSRS vs. FERS: Additional Differences and Similarities In several ways, the CSRS was a more generous retirement system than FERS. For instance, under CSRS, all retirees received cost-of-living adjustments, even if they retired young. FERS retirees typically receive a cost-of-living adjustment (COLA) only if they retire at age 62 or older. However, there are some similarities. Both CSRS and FERS offer benefits such as health insurance, life insurance, and survivor benefits. However, FERS benefits are often less generous than CSRS retirement benefits. For instance, CSRS allows all retirees to receive the same retirement annuity as long as they retire at 55 or later. On the other hand, FERS reduces your retirement annuity for anyone retiring below the age of 62. Disability retirement under CSRS is 40% of the employee’s “high-three” salary. Under FERS, the disability retirement is 1.0% or 1.1% of your high-three salary for each year of federal service you have. Thus, an employee would receive less in disability retirement benefits under FERS unless they have over 40 years of federal service.  Still Curious About CSRS vs. FERS? We Offer Nationwide Assistance for All Your Federal Employment Needs If you have questions about federal employment retirement plans after reading this article, that’s completely understandable. To get accurate answers, it’s best to seek out a knowledgeable employment lawyer sooner rather than later. An adept federal employment attorney can explain which retirement system you are under and how that affects your financial future. If your agency has made some kind of mistake, an attorney can intervene on your behalf and help you file a claim. However, it’s crucial to find the right attorney to ensure the best chances of success. For experienced and reliable legal representation, look no further than the Federal Employment Law Firm of Aaron D. Wersing, PLLC. Our team of legal professionals is experienced in all types of federal employment matters, including FERS and CSRS issues. We are committed to safeguarding your rights as a federal employee and ensuring you are rightfully compensated for your federal service. To schedule an initial consultation, call us today at 866-612-5956. You can also schedule an appointment with...

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Dec 18, 2024 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

How Many Federal Employees Win Their Cases with the MSPB?

Thousands of federal employees exercise their unique right as government workers to appeal disciplinary and adverse actions with the Merit System Protection Board (MSPB) every year. The ability to challenge an agency’s potentially unfair or unjust employment decisions is one of the most vital legal protections federal workers enjoy.  However, when you’re a federal employee considering your options after a proposed demotion, suspension, or removal, it’s natural to ask a critical question: How many federal employees win their cases with the MSPB? This blog post will explain what federal employees should know about the success rate of the MSPB appeal. We’ll break down the data on MSPB cases won on appeal and clarify some important facts behind these numbers. How MSPB Appeals Work The MSPB is a quasi-judicial body that oversees job-related disputes between federal employees and agencies. When eligible federal employees face a proposed disciplinary action from their employer, they can bring it to the MSPB for review. Some of the actions appealable to the MSPB include: The MSPB ensures that an agency has acted correctly and fairly under federal employment laws and policies. It also protects civil servants from arbitrary or politically motivated discipline.  Eligible employees typically have up to 30 days to file an appeal with the MSPB after an adverse action. In the process, you can offer arguments and submit evidence to an administrative judge (AJ) showing why your employer’s action was wrongful. You also have the right to hire a lawyer to represent and advise you throughout the appeal process. The AJ will review your claim and decide whether your agency’s action was appropriate. If their decision isn’t in your favor, you can file for a limited number of additional rounds of review. Rate of MSPB Cases Won by Federal Employees So, how many federal employees win their cases with the MSPB? According to MSPB data, only a few. In 2019, the agency released a report showing that federal employees won their appeals in only 3% of cases from the previous three years.  The MSPB’s 2023 report suggests that this trend continues. Of the 4,135 total appeals the MSPB decided that year, only 98 saw a reversal of an agency’s original decision. That puts the MSPB appeal success rate for federal employees at 2.4% in 2023. Understanding the Data on MSPB Case Decisions  The low success rate in MSPB appeals can seem discouraging. However, this statistic doesn’t tell the whole story.  For one, the MSPB’s appeal success rates don’t consider cases that end in settlement. A settlement is a legal way to resolve an issue without an official ruling or decision. In it, both sides agree to terms that are generally favorable to each of them. For example, an employee appealing a proposed removal could agree to a settlement that allows them to keep their job on the condition that they meet specific performance standards over the next six months. Although settlement details vary from case to case, they often involve at least a partially favorable outcome for an employee.  Additionally, many of the failed MSPB appeals are cases dismissed because of often avoidable errors. Dismissal of cases can occur because of: Of the 4,135 appeals filed in 2023, almost 3,000 were dismissed. Of the remaining cases eligible for consideration on merit, 732 ended in settlements. With this in mind, we can get a different perspective on employee success rates. Of the 1,320 cases the MSPB did not dismiss, 63.6% ended in either a settlement or an outright win for employees in 2023.  Understanding the details behind the data on MSPB case decisions is essential for federal employees considering an appeal. Make no mistake: pursuing a successful MSPB appeal can be challenging. However, with thorough preparation and experienced legal support, a positive outcome isn’t as far off as initial statistics suggest.   A Trusted Advocate for Federal Employees Navigating the technical and legal complexities of the MSPB appeal process can be daunting, especially for federal employees already stressed about their job security. Fortunately, you don’t have to fight this battle alone. Seeking support from a legal professional trained in federal employment law is one of the most effective ways to increase the chances of a positive outcome in an MSPB appeal. Attorney Aaron D. Wersing has spent years advocating for federal employees seeking relief from unfair or excessive actions by their agency. With hands-on experience in virtually all aspects of federal government employment, Aaron Wersing has the legal knowledge and strategic insights to help advise you at each step of your MSPB appeal. Contact the Federal Employment Law Firm of Aaron D. Wersing PLLC to learn more about your options and how we can help.

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Dec 17, 2024 | By Aaron D. Wersing | Read Time: 4 minutes | Federal Employment Law

Settlement Agreements at the MSPB

Appeals to the Merit Systems Protection Board (MSPB) are a fundamental right and privilege unique to federal government employees. However, challenging an agency’s proposed removal, demotion, or other adverse action can be lengthy and stressful. The settlement process offers employees and agencies a way to avoid some of the time and cost of an MSPB appeal on terms beneficial to everyone involved.  This blog post will explain what federal employees should know about MSPB settlement agreements. We’ll cover the MSPB settlement process, what these agreements can include, and why federal employees should consider pursuing one.  What Are MSPB Settlement Agreements? An MSPB settlement is a legal agreement between a federal employee and their agency. The purpose of the settlement agreement is to resolve the issue the employee appealed to the MSPB without further litigation. Some common disputes that often end in MSPB settlements include adverse employment actions, whistleblower retaliation cases, and benefits application denials.  Where Can I See MSPB Settlement Agreement Samples?  An MSPB settlement is a document detailing the agreement terms between a federal employee and an agency. Both parties consent to specific actions and obligations as conditions for ending the dispute. The specific terms of the settlement can vary widely from case to case. Since many agreements contain confidentiality clauses, finding MSPB settlement agreement samples to review can be challenging for employees. However, here are some terms and provisions they often include. Reduction or Revision of Adverse Action Settlements can offer federal employees the chance to avoid an adverse or disciplinary action proposed by an employer. For example, an employee suspended from work for 30 days for excessive tardiness could have their punishment reduced or waived. Federal employees facing termination often seek “last chance” agreements in an MSPB settlement. In these situations, an agency allows employees to continue in their jobs if they agree to meet certain behavior or performance standards.  Clearing Disciplinary Record Another frequent part of a settlement agreement is removing or correcting unfavorable actions on an employee’s personnel record. In some cases, even if an employee is ultimately removed, a settlement can grant access to valuable resources for their job search, such as employer references, recommendation letters, or revised performance evaluations.  Retirement Benefits Provisions involving retirement benefits are an important way for federal employees to protect their future financial security while resolving an adverse employment action. Retirement benefits in MSPB settlement agreements may include: A settlement may also include provisions designed to help employees retain eligibility for other federal benefits programs linked to retirement, such as health and life insurance.  Waivers and Restrictions Beyond offering benefits, MSPB settlements also typically require employees to fulfill some obligations to their employer. These obligations could include agreeing to not: Other obligations included in MSPB settlements apply to both parties. For example, it’s common for an MSPB settlement agreement confidentiality clause to prevent both a federal employee and their employer from disclosing certain information about an MSPB appeal or its settlement.  Can the MSPB Award Compensatory Damages? The MSPB can facilitate compensation to federal employees through a settlement agreement. For example, an employee could negotiate to receive financial compensation for back pay or lost benefits from their agency in exchange for waiving certain legal rights. However, the MSPB doesn’t have the power to award traditional compensatory damages to employees directly. How Do You Reach an MSPB Settlement? The settlement process can begin when a federal employee files their initial appeal with the MSPB. Generally, the employee or agency proposes a settlement offer to the other side. The two parties and their legal representatives discuss the terms and negotiate back and forth until they are all in agreement. Then, both parties sign the drafted agreement and file it with the MSPB judge for approval.  Once a settlement is approved, it is a legally binding agreement. Reversal of the agreement can only happen if there’s a legal issue with the contract, e.g., one party breaks the terms of the agreement or misrepresents facts. In these cases, the other party can begin the MSPB settlement agreement rescission process to reexamine and potentially invalidate the agreement. What Is the Success Rate of the MSPB Appeal? According to MSPB data, most appeals decisions favor federal agencies, not employees. In 2023, the MSPB affirmed agencies’ original decisions in 77.9% of the appeals cases they adjudicated. Only 16.7% of the appeals cases were reversed into favorable outcomes for federal employees.  The relatively low success rate on appeal makes settlement a valuable option for federal employees to be aware of.   Trusted Advocates for Federal Employees Settlement agreements can be a strategic tool for federal employees to reduce the stress of an MSPB appeal. If you’re currently involved in an MSPB appeal, it’s essential to have the support of a skilled legal advocate who understands MSPB settlements and can negotiate for your best possible outcome.  The Federal Employment Law Firm of Aaron D. Wersing PLLC has spent years helping federal employees navigate their rights under the complexity of the MSPB appeals process. With his knowledge and experience in federal employment law, attorney Aaron D. Wersing has helped hundreds of clients protect themselves and their government careers. Contact our office today to learn more about your rights and how we can help you exercise them.

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