| Read Time: 3 minutes | Federal Retirement

Federal Retirement and Your Service Computation Date—What to Know

Working for the federal government comes with many benefits. As a federal employee, you can enjoy regular working hours, ample health benefits, a generous retirement package, and some protections against being fired or laid off.  However, many of these retirement benefits depend on your service computation date (SCD).  For that reason, it’s essential to understand what a service computation date is and how to calculate your own service computation date.  Once you understand your service computation date, you can plan your retirement date and assess when you will be able to access certain employment perks.  If you have questions about your federal retirement and your service computation date, call (866) 340-4430 or contact us online today. Our federal employment lawyers are ready to help. What Is a Service Computation Date? A service computation date is a date used by the federal government to determine what benefits you should receive and when you should start receiving them. 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. After three years of service, federal employees accrue annual leave at six hours each pay period. After 15 years, the annual leave accrual rate increases again to eight hours per pay period.  You can locate your leave service computation date on Block 31 of every standard form 50 (also called “SF-50”) in your personnel file.   Retirement Service Computation Date  Your federal retirement SCD indicates when you will be eligible for retirement. As with the leave SCD, it is usually the date that you began your first federal appointment.  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 service computation date 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 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 committed to protecting the rights of federal employees. Don’t hesitate to contact us or call (833) 833-3529 for a free initial consultation today. 

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| Read Time: 3 minutes | Federal Employment Law

What You Need to Know About Paid Parental Leave As a Federal Employee

Last year, the federal government created a new paid leave category for federal workers—paid parental leave (PPL). As part of the Federal Employees Paid Parental Leave Act of 2019 (FEPLA), most federal workers can take up to 12 weeks of PPL in connection with the birth of a child. Employees can also use federal paid parental leave for the placement of a child under their care. This includes situations like adoption and foster care.  Paid parental leave is just the latest addition to the many benefits of federal employment, including generous retirement benefits, regular working hours, and ample health benefits. Learn more about the government’s new federal paid parental leave below. Which Federal Employees Qualify for Paid Parental Leave? To use paid parental leave, you must complete at least 12 months of federal service as stated in 5 CFR 630.1201(b)(1). Furthermore, you must not be under a temporary appointment (less than one year). You also cannot be an intermittent employee.  Provided you meet these basic requirements, you are eligible to take paid parental leave under FEPLA.   When Did Paid Parental Leave for Federal Employees Come Into Effect? As the name of the bill suggests, Congress passed the Federal Employee Paid Parental Leave Act of 2019 in December of that year.  However, the rule implementing the bill’s provisions did not come into effect until October 1, 2020. This means that federal employees cannot take any PPL for any births or placements of children that took place before that date. Additionally: You may only use PPL during the 12-month period immediately following the birth or placement of your child.  If multiple children were born or came under your care at the same time, you can only use one 12-week period of PPL.  However, if you have multiple children at different times during one year, each child qualifies you for a new PPL period.  What Are My Options If I Had a Child Before the Paid Parental Leave Law Came Into Effect? If your child was born or came into your care before October 1, 2020, you can still take leave to care for them. However, you won’t receive any pay during that time.  Before FEPLA, the closest thing to a Federal employee maternity leave law or a Federal paternity leave law was the Federal and Medical Leave Act of 1993 (FMLA).  FMLA allows eligible federal employees to take leave for up to 12 weeks for a variety of medical reasons, including the birth of a child. However, unlike FEPLA, FMLA provides employees only unpaid leave. Furthermore, you have to meet the same standards for FMLA as you would for FEPLA.  Can I Use Leave Under Both FMLA and FEPLA? No. PPL is provided as a replacement for the unpaid leave provided under FMLA. However, you can use sick leave and annual leave in coordination with PPL. Do I Have to Use My Sick or Annual Leave Before Using Paid Parental Leave? No. In fact, the Office of Personnel Management (OPM)—the agency responsible for determining the personnel practices of all federal agencies—explicitly states that federal agencies cannot force their employees to take other forms of leave before using PPL.  How Do I Request Paid Parental Leave? Most federal agencies have their own paid parental leave request forms. If you intend to request PPL, contact your local human resources office to learn about the forms that your agency uses.  Please note that you must provide supporting medical documentation if your employer requests it. The types of supporting documentation you have to submit will vary from agency to agency.  That said, OPM released guidance for the kinds of documents agencies may accept. Commonly accepted medical documents include birth certificates, hospital records, and any documents that name you as a parent.  Finally, FEPLA requires that you sign an agreement promising to work at least twelve weeks of work after using PPL.  Is Your Federal Employer Giving You the Paid Parental Leave You Are Entitled To? The new federal paid parental leave law recognizes that the birth or placement of a child is a life-changing event. It’s also a stressful period that requires your full attention without the interference of work. If your employer is denying you paid parental leave or retaliating against you because you took PPL, they are infringing on your rights.  That’s why we are here. At the Law Office of Aaron D. Wesing, PPLC., we fight to protect our clients’ rights. We also work to ensure that they get fair treatment from their employers.  Over the years, we’ve helped hundreds of federal employees deal with a huge range of federal employment problems. So let us help you stand up to your employer. If you think that your federal employer is violating your rights, contact us online or call (833) 833-3529 for a free initial consultation today. 

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| Read Time: 4 minutes | Federal EEOC

Overview of Federal EEOC Complaint Process

No matter what your job is, you may encounter discrimination in the workplace during your career. There are several laws the Equal Employment Opportunity Commission (EEOC) enforces that protect federal employees from discrimination. But what is the federal EEOC complaint process? If you find yourself the victim of discrimination in the federal workplace, it’s important to understand your rights and how to enforce them with an EEOC complaint. For immediate assistance, please don’t hesitate to send a message or call us at (833) 833-3529 today. Here is a breakdown of the 6-Step Federal EEOC Complaint Process. The 6 Steps in the EEOC Complaints Process 1. Contact Your EEO Counselor Each agency has an equal employment opportunity counselor. Before filing a formal complaint with the EEOC, the first step of the federal EEO complaint process is to contact your agency’s EEO counselor within 45 days of the discrimination. Note that some agencies will use different terms for this office, such as the Office of Resolution Management (ORM) at the Department of Veterans Affairs.  The EEO counselor will provide information about how a federal EEO complaint works. At this step, your counselor will provide details about the EEO process, including approximate timelines and your appeal rights. They will usually ask for information about your claims and bases too. Where applicable, you may also have the option to go through alternative dispute resolution (ADR). This step is also when you must choose whether to file your complaint through the EEO, negotiated grievance, or the Merit Systems Protection Board (MSPB) processes, if applicable. Not all cases have this choice, but when you do, federal employees may choose only one of these two paths and the option first chosen is generally considered to be your election. If you’re unsure where you should file your federal EEOC complaint, consider consulting a federal EEOC lawyer. Understanding Which Laws the EEOC Enforces The EEOC enforces four federal anti-discrimination laws: Title VII of the Civil Rights Act of 1964, The Equal Pay Act of 1963, The Rehabilitation Act of 1973, and The Age Discrimination in Employment Act of 1967. Together, these laws protect against discrimination based on a number of characteristics, including race, color, sex and sexual orientation, religion or national origin, age, and disability. Additionally, the EEOC works to protect employees from retaliation by their superiors or agency. 2. Filing a Formal Complaint If you can’t resolve the issue through counseling or ADR, your counselor will provide you with a written Notice of Right to File Formal Complaint, and provide a final Interview. This notice gives you the right to file a formal complaint with your Agency’s EEO office within 15 days. Read the Notice carefully for instructions on where to send your complaint. Generally you can file your Formal EEO complaint by mail or email. Each complaint must be properly drafted to include at least: Contact information for you or your representative; Contact information for the person the claim is against; and A signed statement describing the events you believe resulted in discrimination, including when they occurred. After you submit your complaint, will review it to decide whether to conduct an investigation. 3. Your Agency Conducts an Investigation If your Agency accepts your claims, your agency will have to conduct an investigation into the alleged discrimination. Once the investigation is complete, you may request a hearing before an administrative judge, or you can request an immediate final decision for your EEOC complaint from your agency. 4. Hearing Before an Administrative Judge Like other court proceedings, an EEOC hearing involves presenting your case to an administrative judge. Each party also has the opportunity to conduct discovery to obtain additional information. At the end of the hearing, the judge will review the record and issue a decision about whether there was discrimination. In some cases, a federal employee may not need to request a hearing. Accordingly, hearings do not always happen as part of the federal EEOC complaint process. 5. Your Agency Issues a Final Decision Whether you choose a hearing or not, the final main step is your agency’s final decision. The agency will review the judge’s final order or the evidence from the investigation and notify you whether it found any discrimination. If there was discrimination, the agency may implement the judge’s orders or its own remedy. Because final decisions may not be in the employee’s favor, federal employees have the right to appeal a final agency action to the EEOC’s appellate division, the Office of Federal Operations (OFO). 6. Appealing to the EEOC You may appeal your agency’s decision to the OFO within 30 days of that decision. During the appeal process, the OFO will review the entire history of your complaint and the evidence in the record. The OFO will then issue its own determination of whether there was any discrimination. Having a federal EEOC lawyer is the best way to make sure your arguments are properly presented in this case. Contact a Federal EEOC Lawyer The federal EEOC complaint process looks long and stressful, but it doesn’t have to be. The attorneys at the Federal Employment Law Firm of Aaron D. Wersing, PLLC have years of experience representing federal employees in a variety of employment matters. If you’ve suffered discrimination and need help with your EEOC complaint, we can help. Contact us today online or at (833) 833-3529 for a free consultation.

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| Read Time: 4 minutes | Federal Disability

How Does Federal Disability Work?

One of the biggest perks of being a federal employee is having access to the government’s comprehensive benefits package. Currently, most federal employees receive benefits under the Federal Employees Retirement System (FERS). Although there are resources explaining FERS and how it works, they aren’t always as helpful as they could be. We frequently get questions from federal employees asking how to balance their medical and financial needs, and many times these employees have never heard of benefits such as disability retirement. If you are wondering how federal disability works, this blog post hopefully demystifies federal disability to help you best understand your options. If you have questions or would like to speak with a federal disability attorney, contact The Law Office of Aaron D. Wersing by using our online form are call us at (833) 833-3529. What Is the Federal Employees Retirement System? FERS stands for Federal Employees Retirement System. This program is the modern disability program offered by the federal government. If you started your service earlier than 1987, your disability benefits will come from the Civil Service Retirement System (CSRS) instead. Most of these provisions for disability retirement are substantially the same under CSRS, so if you are a CSRS employee, you can qualify for disability retirement as well.  When Am I Eligible for FERS Disability? Eligibility starts with your length of creditable service with the government. For employees covered under FERS, you must have at least 18 months of creditable federal civilian service to qualify. Note that federal employees covered under CSRS need five years of service to qualify. In addition:  Your disability must prevent you from “useful and efficient service” in your current position (in other words, you have a deficiency in your performance, attendance, and/or conduct); The expected length of the disability must be one year or greater; Your agency must be unable to accommodate your disability, either in your position or through reassignment; You must apply for disability before your separation from service or within one year after; and You must submit an application for Social Security benefits. Whether your disability prevents you from a useful and efficient service isn’t always obvious. For that reason, many federal employees seek advice from a federal disability lawyer. Does FERS Include Short-Term Disability? No, FERS does not include short-term disability. FERS does not cover disabilities expected to last less than one year. Other than sick leave, annual leave, and your agency’s leave bank (if available), there are no specific benefits for short-term disability. However, in many cases of a short-term disability, the employing agency may be required to provide reasonable accommodation. Reasonable accommodations may include leave, job restructuring, telework, ergonomic equipment, or another option that would allow the employee to perform the duties of his or her position.  FERS Disability and Social Security As explained above, eligibility for FERS disability is partially dependent on the employee applying for Social Security benefits. So how does federal disability work when it comes to this requirement? Fortunately, you don’t have to receive approval for Social Security benefits to receive FERS disability; you just have to apply. You can be approved for both SSDI and FERS disability simultaneously. In such a case, you would generally receive your full SSDI benefit while receiving a reduced disability annuity from the Office of Personnel Management (OPM).  Unfortunately, keeping track of all the eligibility requirements can be difficult, especially if you’ve never worked with federal disability benefits in the past. We’re here to help you understand the process and make it as stress-free as possible. Applying for FERS Disability As with other government benefits programs, applying for FERS disability starts with completing several forms. Generally, you must complete at least SF 3107 and SF 3112. Additionally, you will need to provide documentation that you applied for Social Security disability, and other supporting documents depending on your responses on the SF 3107 and SF 3112 forms. During this first part of the process, your supervisor will also have to provide some information about your agency, position, and accommodations made available to you (if any).  If you are still on agency roles and not separated, or are within 30 days of separation, you must apply through your agency. If you are more than 30 days separated, then you will apply directly to OPM. Once your application is submitted, the Office of Personnel Management (OPM) will review your eligibility before notifying you of its decision. What to Do If You Are Denied FERS Disability Benefits As a federal employee, you have a robust set of rights when it comes to your employment, including denial of benefits. In a case where OPM disallows your application for FERS disability, you have 30 days to file a reconsideration appeal with OPM. Note that on the reconsideration form, you may elect to submit additional information in support of your application. During this appeal, a reconsideration specialist will give your application a second review. If your reconsideration appeal is denied as well, your next option is an appeal to the Merit Systems Protection Board (MSPB). An MSPB administrative judge will review OPM’s decision to determine whether you are eligible for FERS disability. If the administrative judge also denies your benefits, you can appeal to the MSPB board. After that, you will have exhausted your administrative remedies, giving you the right to take your case to the United States Court of Appeals for the Federal Circuit. Losing FERS Disability Benefits Generally, once you’ve been approved for FERS disability, you will keep your benefits as long as you remain disabled. However, OPM may require you to get periodic medical exams to continue receiving benefits. Accordingly, if you recover from your disability, your benefits will stop. There are two other main reasons why you may lose your federal disability: Your income from wages and self-employment equals at least 80% of your base pay from the position you retired from; or You obtained employment in Federal service at an equivalent position. Additionally, remember that your standard non-disability FERS retirement annuity will start when...

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| Read Time: 4 minutes | FERS Disability

FERS Disability Retirement Eligibility (Are You Eligible)

Individuals often remind government workers of the advantages of their positions. But if you were for the federal government, you may at times feel trapped and without rights. This is especially true for workers who have a disability. Federal Employees Retirement System (FERS) disability eligibility is complex. Many federal employees are not aware of this program’s existence. Others, while aware, may lack proper guidance and feel hindered from accessing the benefit they are entitled to, and left without options.  An experienced federal disability lawyer can help fight for your rights. Please don’t hesitate to call our firm at (833) 833-3529 or contact us online today for assistance. Understanding Federal Employees Retirement System Disability Benefits Defining FERS  FERS stands for Federal Employees Retirement System and is a retirement plan. Most new Federal civilian employees hired after 1983 are automatically covered by FERS, whereas prior to this point most employees were covered under CSRS. Federal civilian employees also have a TSP retirement, however, individuals must note that FERS and TSP (Thrift Savings Plan) are not the same. TSP is an optional retirement option, separate from your FERS pension. Understanding Federal Employees Retirement System Disability Eligibility  The United States government’s Office of Personnel Management provides a pamphlet regarding FERS disability retirement. However, it can often leave the reader more confused than confident in their understanding. FERS disability retirement eligibility is very complex. It involves financial and legal information best analyzed by a lawyer for federal employees. The purpose of Federal Employees Retirement System disability benefits is to provide income to federal workers who: Have a disability expected to last at least one year; and Are unable to fulfill the responsibilities of their job as a result of the disability. Unfortunately, workers most entitled to FERS eligibility are often overwhelmed and face many obstacles due to their disabling condition. Tackling Federal Employees Retirement System disability benefits may appear impossible. However, FERS disability retirement eligibility, when met, provides important rights. A Federal Employees Retirement System disability benefits lawyer knows how to fight for this right. FERS Disability Retirement Eligibility Requirements As stated above, an initial hurdle to obtaining FERS disability benefits includes proving that a disability impacts you to the point where you can’t be expected to adequately perform your duties for at least one year. That is just the start. In addition the worker: Must have paid into Federal Employees Retirement System disability benefits for at least 18 months; and Must not have declined a reasonable accommodation, such as a transfer to a job for which they were qualified, if the federal agency employing the person tried to accommodate their disability or move them to another department. Another critical item to note is that the worker must have applied for Federal Employees Retirement System disability benefits while still employed or within one year after separation from the job. Financial Impact After Proving FERS Disability Retirement Eligibility If the government approves your Federal Employees Retirement System disability benefits, the amount of your benefit will depend on intricate calculations. The amount of benefits is different for each individual. Calculating disability benefits currently includes an analysis of earnings at various points in the person’s career and an age review. An employee can get an accurate picture of available benefits by requesting a FERS benefits estimate from their agency. The Complexity of FERS Disability Retirement Eligibility The aforementioned is only a brief overview of examinations required regarding FERS eligibility and a successful application for FERS disability benefits. Here are some additional stipulations to note. The Injury  When determining disability, there are several medical considerations as well as exceptions. Common injuries that might support a claim for FERS disability benefits include: Back and neck injuries; Hand, shoulder, hip, or knee injuries; Eye injuries; and Amputation. Psychological conditions can also support a claim for disability benefits, though they can sometimes be trickier to document than some physical injuries. Essentially any mental or physical disability that impairs your ability to work may qualify, such as PTSD, depression, anxiety.  Alternate Job Offer Any job offer the government makes to the disabled party should be at the same pay level the person is receiving or higher. It also must be within the same commuting area. Both of these requirements must be met to invoke the requirement that the party accepts the offer, assuming it would actually accommodate the disability.  SSDI  Anyone applying for FERS disability retirement eligibility must also apply for SSDI (Social Security Disability Insurance ). However, it is not required that SSA approve the SSDI application. Other Work Income If the government provides the worker with FERS disability benefits, they cannot keep their federal job, as they proved an inability to perform the job due to a disability. However, they may be able to work in a private-sector job. There are strict income requirements regarding this option. Importance of Legal Representation for Federal Employees Retirement System Disability Benefits  Disabilities can cause tremendous stress. When a disability impacts one’s ability to work, the stress understandably increases. In some cases, those same workers begin experiencing discrimination, resentment, or retaliation in the workplace.  Top-notch Federal Employees Retirement System disability benefits attorneys will offer relief and protection. Individuals should never forget that they have the right to: Seek legal advice,  Be free from retaliation, and Utilize legal protections in place. A federal employer may fail to acknowledge one’s disability or inform them of the rules regarding FERS disability retirement eligibility. Other times, the employer may discourage the worker from pursuing benefits. Also, workers may feel overwhelmed with applying for Federal Employees Retirement System disability benefits. If you find yourself in this situation, you should speak with a lawyer clients trust who is knowledgeable in Federal Employees Retirement System Disability Benefits. The Law Office of Aaron D. Wersing Attorney Aaron Wersing graduated from the Georgia State University College of Law and received the CALI Excellence for the Future Award. Since that time, he has continued a path of excellence as the founding attorney for the Federal Employment Law Firm of Aaron D. Wersing, PLLC. Aaron’s practice...

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| Read Time: 5 minutes | MSPB

How to Win an MSPB Appeal (And What to Avoid Doing)

Thousands of federal employees file an appeal with the Merit Systems Protection Board (MSPB) each year. Over the past three years, only 3% of federal employees were successful. The success rate increases to 18% if you eliminate cases that settle before going to a hearing and those dismissed for procedural errors.  Below are some tips on how to win an MSPB appeal, but first you should understand how the appeal process works. What Is an MSPB Appeal? If a federal employee is subject to a major adverse action by a federal agency, such as demotion, suspension of 15 days or more, or removal, he or she can generally appeal to the MSPB (note that certain agencies and/or positions are not eligible for MSPB appeals, such as a Title 38 employee at the VA). The MSPB is a quasi-judicial federal agency. Its duties include resolving certain employment-related disputes between federal agencies and their employees.  What Is the MSPB Appeal Process? An appeal is appropriate only after the agency notifies the employee of the proposed action, the employee responds verbally or in writing in an attempt to mitigate, if desired, and then the adverse action is subsequently sustained against the employee.  Jurisdiction  Before filing an appeal, the employee must determine whether the MSPB has jurisdiction over the action and the employee filing the appeal.  The MSPB has jurisdiction to hear an appeal involving the following actions, but includes others as well: Performance-based actions, Reductions in grade or pay, Denial of within-grade pay increase, Suspensions for more than 14 days, Furloughs for 30 days or less, Denials of restoration or reemployment, Suitability actions, Reduction in force, and Misconduct actions. The MSPB will hear discrimination cases only if they are in connection with an action otherwise within MSPB’s jurisdiction. Some appeals will be heard only after you exhaust the procedures of another governing agency, such as veteran employment and whistleblower retaliation claims. Federal employees eligible to file an MSPB appeal include: Competitive service employees who have completed a probationary period; Employees in the excepted service, other than preference-eligible employees, with at least two years continuous service in the same or similar position; Preference-eligible employees with one year of continuous employment in the same or similar position; and Postal Service supervisors, managers, and employees engaged in personnel work with one year continuous service in the same or similar position. An MSPB attorney can help determine your eligibility to file an appeal. Filing the Appeal Timing Typically, you must file your appeal within 30 calendar days of the date of the action or within 30 days after receiving the agency’s decision, whichever is later. There are exceptions however, such as actions taken by the VA under 38 USC §714, which have a reduced deadline of 10 business days to file the appeal. If the appellant and agency mutually agree in writing, prior to the timely filing of an appeal, to use an alternative dispute resolution process, the time limit for filing the appeal is 60 days.  Format The format and contents of your appeal must meet all the MSPB’s requirements. To ensure you do this, the MSPB provides an approved form if you wish to submit your claim in writing, or you can submit your appeal online through e-Appeal Online. Hearing The MSPB will assign an administrative law judge (ALJ) to your case, who will request additional information and responses from you and the agency. The ALJ will address settlement as well, which may involve the MSPB’s MAP program. If the case does not settle previously, a hearing will take place to allow the parties and witnesses to testify. The ALJ will issue an initial decision, which becomes final 35 days later unless a party petitions for review to the MSPB’s appellate division, known as the “Board”. Further appeal If you are dissatisfied with the ALJ’s initial decision, you may either file a petition for review to the Board or typically with the U.S. Court of Appeals for the Federal Circuit. Your appeal to the federal courts must be done within 60 days of the Board’s decision.  How to Win an MSPB Appeal? The MSPB says the most common reason as to why employees lose their cases is because they fail to bring forth a proper case by misinterpreting the law or not providing important evidence. Here are some tips on what to do (and what not to do) to increase your chances of winning an MSPB appeal.  Request All Material Used By the Agency When an agency takes adverse action against you, you have the right to review the material it relied on to make the decision. You should exercise this right and obtain all the material to build a strong case against the agency. To create a well-crafted argument, you need to know what information was used against you.  File on Time The timeliness of filing your appeal is of utmost importance. Do not miss the filing deadline Generally, you have 30 days from the date the action is taken against you to file your appeal. Although the MSPB may excuse late filing if you have a good reason and provide supporting documentation, this rarely happens. The MSPB processes thousands of cases each year, and it is incredibly strict about deadlines. Remember, your initial appeal form only needs to include the basics, such as the facts and legal issues of your case. The ALJ will request additional information after you file. The important thing is to get the appeal in on time. Do not file too early You can only file your appeal after the effective date of the action against you or after the agency issues a final decision regarding your performance or conduct.  File a Complete and Proper Form File with the correct regional or field office. You must file your written appeal with the MSPB’s regional or field office where your duty station is located at the time the action took place. From time to time, the jurisdiction of the offices changes, so check the MSPB website for the most up-to-date information. Pay attention to every detail on...

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| Read Time: 5 minutes | Federal Retirement

5 Steps for Applying for Federal Disability Retirement

Federal employees who become disabled face significant stress. From handling pain and multiple doctor appointments to worrying about finances and an uncertain future, a federal employee can be overwhelmed. The last thing that a disabled federal employee should have to deal with is filing complex paperwork to apply for federal disability retirement benefits.  At the Federal Employment Law Firm of Aaron D. Wersing, PLLC, our federal employee disability retirement lawyers take the worry out of applying for benefits. We help our disabled-federal-worker clients so that they can focus on their health and their families. Our hands-on approach keeps our clients informed throughout the entire process, from completing the initial paperwork to the appeal of benefit denial. We are experienced in all aspects of Federal Employees Retirement System (FERS) disability retirement benefits so that federal employees don’t have to be. For assistance, please contact us online or call (833) 833-3529 today. FERS Disability Retirement Requirements To be eligible for the FERS disability program, federal employees must have worked in a covered position for at least 18 months. In addition, an employee must have become disabled while employed and the disability must be 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 Disability Retirement Benefits? To qualify for federal 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. Five-Step FERS Disability Retirement Application Process There are five essential steps that a federal employee needs to follow to apply for FERS disability retirement. Step One: 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. Step Two: 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 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: Identifying information, Description of federal service, Marital information, Type of annuity elected, Insurance information, Other claim information, Payment instructions, Applicant’s checklist, Military service and military retirement pay information, Workers’ compensation information, and Applicant’s certification that all statements are true. 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 before the agency completes 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. Step Three: Complete Standard Form 3112, Documentation in Support of Disability Retirement Application Disabled federal employees need to provide documents that support their FERS disability retirement application. Standard Form (SF) 3112 includes five main forms, some of which are completed by the applicant and others to be completed by their physicians or agency. In general, employees use these forms to document their medical condition to show that they are disabled and unable to perform their job duties.  The disabled employee must complete Standard Form 3112A, Applicant’s Statement of Disability. On that form, the applicant describes his or her disease or injury and how it affects current job duties. The applicant then lists the physicians and dates of treatment that can support his or her claim of disability.  Next, the federal employee must ask each doctor to complete Standard Form 3112C, Physician’s Statement. The employee should also provide each doctor with a current job description. With that job description, each doctor can state how the employee’s disease or injury affects the employee’s ability to work. In addition to completing the form, each doctor must enclose medical documentation of the patient’s medical condition on letterhead stationery. Doctors must provide copies of all medical reports detailing the patient’s symptoms and history, diagnostic tests, diagnosis, treatments, and therapies. The doctors also must indicate if and when...

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| Read Time: 5 minutes | MSPB

MSPB Appeal Process and How to Get Started

The Merit Systems Protection Board (MSPB) is the quasi-judicial agency responsible for overseeing the federal merit system. This system establishes rules and procedures related to the hiring, firing, and promotion of federal employees. The MSPB appeal process is an important part of federal employment because it provides a process for employees who have suffered certain kinds of adverse employment action to seek remedies. Below is an overview of the MSPB Appeal Process, as well as a helpful infographic about the process. The Law Office of Aaron D. Wersing focuses on helping federal employees resolve a variety of issues related to their federal employment. If you’ve been fired, suffered from discrimination, retaliation, or otherwise faced workplace issues, we can help you file your claim with the appropriate federal agency. Contact us online or call (833) 833-3529 today to schedule a free consultation. The MSPB Appeal Process In general, the MSPB appeal process is very similar to what you would experience during a lawsuit. Instead of a trial, however, the parties ultimately present their cases during a hearing before an administrative judge. The eight major steps in the process are outlined below. The Employee Files the MSPB Appeal Technically, the first step in the process occurs when a federal agency makes a personnel decision that negatively affects the employee. The MSPB most commonly hears these kinds of cases, which include suspensions of 15 days or more, terminations, and demotions. After such an action is sustained, the federal employee may file a formal appeal with the MSPB. Employees can file appeals online through the MSPB’s e-Appeal Online service. Generally, employees must complete this step within 30 days of the adverse action prompting the appeal. However, there are exceptions, such as adverse actions taken by the Department of Veterans Affairs under § 714, which shorten this deadline. This is just one of many deadlines that will come up during the process. Hiring a federal employment lawyer will ensure that you don’t miss any of these crucial deadlines. Judge Assignment and Acknowledgement Order Within a few days or weeks of the initial filing, the case will be assigned to an administrative law judge (ALJ). The judge issues a document called an Acknowledgement Order. This order creates a timeline for the case and provides certain instructions about what each party must do next. The Agency Responds to Appeal Shortly after the ALJ issues the Acknowledgement Order, the federal agency must provide a file of their case to the judge and the employee. This file contains the agency’s initial response along with other documents relevant to the case. Status Conferences After receiving the agency file, the ALJ schedules one or more status conferences. At these conferences, the parties discuss the issues involved in the case, including any potential settlement or mediation efforts. It is possible that an MSPB case will end here if the parties reach an agreement. If the parties are engaging in settlement talks, the ALJ may order a case suspension. This suspension freezes the proceedings while the parties complete certain tasks. Case suspensions usually last 30 days, and the administrative law judge has the discretion to grant a 30-day extension if necessary. With regard to settlement, the parties may mutually agree to one of the MSPB’s mediation programs, such as the MSPB’s Mediation Appeals Program (MAP). Once both parties upload the signed MAP election forms, the appeal is taken off the docket pending the outcome of settlement negotiations.  The Discovery Process Just like in a trial, the parties engage in a discovery period to gather information in support of their case. In addition to documents, audio, or video, the parties may obtain sworn testimony through depositions. Other than the hearing, this may be the most important step in the process because it offers the employee the chance to obtain relevant evidence directly from the federal agency. The Parties Provide Pre-Hearing Submissions and Attend Pre-Hearing Conferences In the MSPB Appeal Process, the hearing is where the parties present their cases before the ALJ. Before the hearing, each party will provide information about the documents and witnesses they plan to use. This information makes up the “pre-hearing submissions.” During the pre-conference hearing, the judge may do several things: Explain the MSPB appeal process to the parties; Facilitate discovery; Identify and narrow down the relevant issues; Obtain certain agreements between the parties (called “stipulations”); Discuss the possibility of settlement; and Rule on the admissibility and relevance of witnesses and exhibits. During these preliminary hearings, the parties have a chance to provide support for the evidence and witnesses they wish to use. A large part of this step involves challenging and demonstrating a basis for the chosen evidence. The Parties Present Their Cases at a Hearing Usually lasting one to several days, the hearing is very similar to what you’d see in a courtroom. The parties may perform an examination and cross-examination of any witnesses, present exhibits, and other information to support their side of the appeal. At the end, the parties may also provide closing statements, either before the judge or in writing submitted for the record. The Administrative Law Judge Issues a Decision After the hearing, the ALJ will review the evidence in the record and issue a final written decision. This can take anywhere from two to six weeks, or longer, depending on the complexity of the case. What Comes After the MSPB Appeal Process? After the administrative judge issues a final decision, the parties have the opportunity to file another appeal if the decision is adverse to them. This appeal is known as a Petition for Review, and must be filed within 35 days of the date of issuance of the administrative judge’s final order. The three Board members of the MSPB review these petitions and issue a final decision. A petition for review may also be filed online. If the MSPB’s initial or final decision is adverse to the employee, that employee gains the right to file a complaint in the Court of...

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| Read Time: 5 minutes | Wrongful Termination

Can a Federal Employee Sue Their Employer?

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

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| Read Time: 6 minutes | Federal Retirement

How Do I Calculate FERS Retirement With a Calculator?

Figuring out how to calculate FERS retirement can require some work. But luckily, we can help with calculating this for you. A FERS disability retirement calculator is exactly what it sounds like. It is a tool you can use to calculate the amount of payment you will receive if you retire due to a disability. Of course, this calculator tool is applicable only if you are a federal employee retiring through the FERS disability retirement program.  For immediate assistance, please don’t hesitate to contact or call (833) 833-3529 to reach our experienced FERS disability lawyers. How is FERS Calculated? A FERS disability retirement pay calculator works just as any other calculator does. You give the calculator a set of inputs and parameters, and the calculator gives you an answer. The output could be your annual payment (referred to as an annuity). Or it could be your monthly or weekly payment. On the other hand, your output could be the total amount of money you will receive over X amount of time (36 months, 20 years, etc). It all depends on what you ask the calculator to give as its output. It is up to you.  Many of the FERS retirement calculations depend on your high-3 salary. OPM defines your high-3 as the highest average basic pay you earned during any 3 consecutive years of service. Your basic pay is your basic salary paid for your position. This includes salary increases for which FERS retirement deductions are withheld, such as shift rates. It does not include payments for overtime, bonuses, etc. Further, if one’s total service was less than 3 years, the average salary is figured by averaging basic pay during all periods of creditable Federal service. The best way to find your high-3 average salary is to get a FERS benefit to estimate from your Agency. This report will show the official figures that will be sent to OPM.  While the OPM website does not have a specific calculator tool, they publish information on how they make the calculations online. Here, we summarize those guidelines. FERS Disability Computation If You Have Reached the Age of Retirement If you are age 62 or older when you retire due to a disability, the following FERS calculation applies. The calculation also applies if you meet the age and service requirement for immediate voluntary retirement and suffer from a disability. This calculation is known as an “earned” annuity since you have otherwise met the qualifications for retirement benefits. ‘ The calculation goes one of two ways. If you are 62 or older when you retire and have less than 20 years of service with the federal government, or are under 62 years old but qualify for immediate voluntary retirement, your annuity calculation will be 1% of your high-3 average salary for each year of service. Thus, if you serve eighteen years, your annuity is 18% of your high-3 average salary. Your high-3 average salary is the highest average basic pay (minus overtime) you receive for three consecutive years during your employment. If your salary tops out at $65,000 for three years, that’s your high-3 salary. If your annual salary was $55,000 three years before your disability, then $65,000 per year for only two years before the disability, your high-3 average salary is the average of $55,000, $65,000, and $65,000. If you are 62 years old or more and have at least 20 years of service to the federal government, your annuity calculation is different. Your annuity calculation is 1.1% of your high-3 average salary for each year of service. So if you have 20 years of service at this point, your annuity is 22% of your high-3 average salary. Because the calculations for disability retirement for someone 62 years old or older are the same as regular voluntary retirement, it generally does not make sense to apply for FERS disability if you are at least 62 years old.  FERS Disability Computation If You Have Not Reached the Age of Retirement For these calculations, the assumption is that you are under the age of 62 at the time of retirement and not eligible for voluntary retirement at that time. There are 3 tiers given: The first 12 months of receiving FERS disability payments After the first 12 months of receiving FERS disability payments Once you reach age 62 (at this time, OPM will recalculate your annuity to match a regular FERS retirement annuity) For the first 12 months, your annuity calculation will be as follows: Your base annuity is 60% of your high-3 salary. If you receive social security, the total amount of your social security payment is subtracted from your FERS annuity as a 100% offset. If your “earned” FERS annuity is greater than this amount, your earned annuity will be your annuity payment. After the first 12 months, before you reach age 62, your base annuity calculation will be reduced to 40% of your high-3 year salary. If you receive social security, 60% of that amount will be drawn from your annuity. Just like the first 12 months, your “earned” annuity will be your annuity payment if that amount is greater than the base annuity (minus the social security offset). Once you reach age 62, FERS will recalculate your annuity from that point on. It will be the annuity you would have had if you were able to work until the day before you turn 62 and retire under FERS. In other words, the service computation reverts to the one we outlined above. What Are Disability Annuity Reductions? In some situations, your disability annuity can be reduced due to elections made during the application process. The main situation where this happens is when you are married and have a survivor benefit election. Unless your spouse consents to you electing a smaller than ‘full’ survivor annuity (which you establish at the beginning of your employment term), your annuity faces a reduction of either 5% or 10%. If you elect survivor benefits that are 50%...

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