Feb 10, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Workplace Discrimination

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

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

Feb 3, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | FERS Disability

Is Federal Disability Retirement Income Taxable?

If you have been a federal employee and are seeking to receive disability retirement income, you might have to pay taxes on that income. This isn’t pleasant news, but the following article can help you prepare for what’s next. If you’re still wondering, is federal disability retirement taxable? Or if you have other questions regarding federal disability retirement, contact us today. Common Kinds of Federal Disability Retirement Income The first step federal employees should take to understand their tax liabilities on federal disability retirement payments is to understand what kind of federal benefits they’re receiving. Common retirement benefits a federal employee might receive include: The Office of Personnel Management (OPM) handles many matters related to FERS and CSRS payments. Some of the above-listed benefits are taxable, and some aren’t. For payments and benefits that are taxable, they are taxable at different levels. Is OPM Disability Retirement Taxable at the Federal Level? OPM oversees matters regarding FERS and CSRS disability retirement payments. Is FERS Disability Retirement Taxable at the Federal Level? Is FERS taxable? Some FERS disability retirement is taxable. Individuals can receive FERS disability retirement if they have certain characteristics, including: Recipients of a FERS disability retirement annuity do show these benefits as taxable income. Is CSRS Disability Retirement Federally Taxable? Some CSRS disability retirement is federally taxable. An eligible recipient of CSRS disability retirement must: CSRS retirement disability recipients also must pay tax on their benefits. Whether you are seeking CSRS or FERS retirement disability benefits, you have a limited amount of time to apply for them. You also have to follow specific rules to maintain them. This can be overwhelming when you are trying to handle a disability. An experienced federal employment disability lawyer can recover your benefits while you adjust to changes in your life. Income Tax Rules from Your State Can Differ While some of your disability retirement benefits might not be federally taxable, your benefits could be subject to state income taxes. Contact Our FERS Disability Attorney Today to Protect What Is Yours It’s stressful to determine how much vital income you can keep when you’re receiving benefits for a debilitating condition. But you don’t have to figure this out on your own. At the Federal Employment Law Firm of Aaron D. Wersing, PLLC, we have helped hundreds of federal employees with their employment issues. We have substantial experience, and we are passionate about helping federal employees. Let us help you. Contact us online or call us at 866-508-2158.

Jan 16, 2023 | By Aaron D. Wersing | Read Time: 4 minutes | Federal EEOC

How to Prove Retaliation in the Workplace

The law protects all federal employees against discrimination and harassment in the workplace. And yet, many employees suffer all kinds of injustice after standing up for their rights. Countless other employees fear standing up for themselves because of the threat of retaliation. Unfortunately, retaliation in the federal workplace is common. According to the U.S. Equal Employment Opportunity Commission (EEOC), there were over 34,000 complaints of workplace retaliation in 2021. In fact, retaliation complaints made up 56% of all EEOC complaints filed that year. Given these facts, it’s important to learn how proving retaliation works. Read on to learn about the legal elements of retaliation. Contact a dedicated federal workplace retaliation attorney today if you have more questions about federal workplace retaliation or want legal counsel on your specific situation. How to Prove Retaliation Every successful retaliation claim requires meeting three elements. To prevail on your retaliation claim, you first need to prove that you either participated in protected activity or refused to obey an illegal or unethical act. After that, you need to show that your employer took some kind of adverse action against you. Finally, you must establish a nexus between your employer’s adverse action and your earlier protected activity. Let’s explore these elements in more detail. Participation in Protected Activity or Refusal to Carry Out an Illegal Act “Protected Activity” is a legal term of art that is commonly heard in discrimination cases. The most simple definition is any activity that receives federal or state legal protection. One great example is reporting discrimination. Federal civil rights laws prohibit discrimination based on certain characteristics. To encourage people to come forward and report discrimination, these civil rights laws grant protection to the act of reporting a violation. Other protected activities include things like: Protected activity also encompasses any resistance to an illegal order. For instance, it would be protected activity to refuse an order from your director to fire a subordinate because of his race. Finally, turning down sexual advances or taking action to protect others from sexual harassment generally constitutes protected activity. Adverse Action Against You by Your Employer Once you demonstrate that you participated in a protected activity, your next task is to prove you suffered an adverse action. Adverse actions include any negative actions against the employee by the employer. As such, they can take on a variety of forms. A few examples of adverse actions include: Although many kinds of adverse actions are obvious and blatant, others are more subtle. As federal anti-discrimination laws do not prohibit the employer from disciplining an employee for legitimate reasons, shady employers will often try to camouflage retaliation. For instance, your manager might say that he is laying you off because of “budget cuts” rather than your EEO activity. When adverse actions are conducted for seemingly legitimate reasons, it is best to hire qualified legal counsel to assist you. Connection Between the Adverse Actions and Your Protected Activity The final and most tricky retaliation element to prove is the connection or causality between your employer’s adverse action and your protected activity. Federal employment attorneys utilize three different characteristics to establish causality: Using one or more of these factors is vital to prove retaliation. Have More Questions About Retaliation in the Federal Workplace? Let Us Help Unlike other attorneys, the Law Office of Aaron D. Wersing, PLLC concentrates solely on federal employment issues. That means we have in-depth experience with virtually every issue that arises in the federal workforce. Besides our knowledge and experience, we also have a deep passion for serving the nation’s civil servants. We care about your rights and want you to have a long and fruitful federal career. Don’t go it alone against your retaliatory employer. Get the legal help you need so you can obtain the compensation you deserve. Call us at (833) 833-3529 or reach out to us online to start your journey toward justice.

Jan 13, 2023 | By Aaron D. Wersing | 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? The MSPB appeal process 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: 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: 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, an MSPB 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 the appeal form Simple mistakes on your appeal form like an incorrect address, failing to sign, or not providing the accurate date of the action can cause delay or denial of your appeal. An MSPB attorney can be quite helpful with the filing process, ensuring all information is included and accurate. Tell a Good Story In 2019, the MSPB decided on 5,120 cases. Your appeal must stand out. Paint a clear picture of the adverse action with details and a theme. This is where MSPB attorneys are incredibly beneficial as they are trained and skilled at telling your story in a compelling way. Make Discovery Requests ...

Jan 11, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | Federal Employment Law

Does Title VII Apply to Federal Employees?

Since its passage, Title VII of the Civil Rights Act of 1964 has served as the cornerstone of federal anti-discrimination law. It prohibits discrimination based on race, religion, sex, national origin, and color for most private-sector organizations, as well as state and local government entities. Fortunately, Title VII applies to all federal employees. However, Article VII’s applicability to federal employees may limit their ability to bring other kinds of lawsuits for certain claims. Read on to learn more about the current status of Title VII for federal employees. If you have more questions, get in touch with a knowledgeable federal employment lawyer right away. Understanding the Basics of Title VII Before going any further, it might be helpful to briefly review exactly what Title VII does. If Title VII applies to an organization, that organization cannot discriminate against any person with regard to any term, condition, or privilege of employment. Practically speaking, this means that any form of workplace discrimination is completely outlawed by Title VII. Terms and conditions of employment include things like: Obviously, enjoying discrimination protections in these matters is essential. Title VII and Federal Employees Once again, if you are a federal employee, you need not worry whether Title VII applies to you. It applies to all federal agencies, regardless of their size or main location. Title VII also applies to applicants for federal employment, regardless of their citizenship or immigration status. That said, Title VII does not apply to Tribal nations, and it does not cover independent contractors. There is one major difference between federal employees and private-sector employees worth mentioning. While private-sector employees can file lawsuits for discrimination under Title VII, they may also file lawsuits relating to illegal discrimination under other laws. This may be preferable in certain situations because different laws may allow a person to recover more damages than Title VII. Federal employees, on the other hand, may resolve discrimination-related lawsuits only through Title VII claims. In the landmark 1976 case Brown v. GSA, the Supreme Court held that the only judicial remedy for federal employees is Title VII. For someone who has suffered from discrimination and is considering whether to file a lawsuit, the implications of this decision are enormous. If you fail to file your Title VII lawsuit within a certain amount of time after the discrimination, the court will probably throw your case out. This will leave you without any ability to get justice. Two Hypothetical Examples of Title VII Discrimination There is no limit to the forms that discrimination can take. It can be obvious or subtle, constant or periodic. Consider the two following hypothetical examples of discrimination in hiring and termination matters. Example #1 A man with a background in tax law applies for a federal tax attorney position. He seems very well qualified and makes it through the interview process. During the security check process, the hiring manager learns that the applicant has a restraining order against his former ex-wife for domestic abuse. Because the hiring manager believes that only women can be victims of domestic abuse and that men should be able to “man up” and protect themselves, she decides to reject the male applicant. Example #2 A woman from a conservative Christian religious background applies to work at the United States Postal Service (USPS) and gets the job. Shortly after she starts work, her supervisor informs her that she must wear pants as part of the USPS’s dress code policy. The employee believes that donning pants violates her religious beliefs and requests religious accommodation so that she can wear something more conservative. USPS refuses to make any accommodation and terminates the employee instead. Still Wondering About Title VII? Concerned About Discrimination? Let Us Help You Today Chances are, you’re wondering whether Title VII applies to federal employees because you are a federal employee suffering from discrimination. If that’s the case, we have good news for you. You have rights. You do not need to simply put up with discrimination. But if you are the target of discrimination, you need to seek legal counsel right away. There are many lawyers today that you could hire. But it is critical you hire the best attorney possible. Ideally, you want an attorney with extensive experience in federal employment matters, outstanding customer service, and a track record of success. At the Law Office of Aaron D. Wersing, PLLC, we pride ourselves on protecting and defending federal employees from all types of illegal discrimination. We have decades of experience helping federal employees stand up for their rights and careers. If you retain one of our attorneys, we promise to do everything we can to help you enjoy a fair and equitable work environment. We will also make every effort to see that you receive just compensation for your losses. Call us right away at 833-833-3529, or reach out to us online.

Jan 9, 2023 | By Aaron D. Wersing | 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 service computation date 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 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 committed to protecting the rights of federal employees. Don’t hesitate to contact us or call (833) 833-3529.

Dec 30, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | Whistleblower Claims

Whistleblower Protection Laws for Federal Employees

If you have a position with the federal government, you have been entrusted with a high level of responsibility for all of us in this country. Unfortunately, not every government employee or leader honors their obligation to respect the laws and the public with their service. When a colleague or supervisor falls short of their legal obligations, you have the option (and sometimes the duty) to report their misconduct. And if you are afraid your report will cause severe personal and professional harm, remember that federal whistleblower protection laws can shield you from the fallout of exposing bad behavior. At the Federal Employment Law Firm of Aaron D. Wersing, we are dedicated to protecting and championing the rights of federal employees. You deserve a strong advocate when you do the right thing, and we are here to shield your efforts to uncover misconduct in your workplace. What Is Whistleblowing? You are a whistleblower if you disclose information to an authority about any of the following activities occurring at work: Reporting these activities is protected, and even required, if a federal employer is being wasteful, fraudulent, abusive, or corrupt. The law also protects federal employees from retaliation if they initiate a whistleblower complaint, refuse an employer’s request to break the law, or assist with a whistleblower complaint or investigation. Whistleblower Protection Many employees are understandably fearful of reporting their employer’s violations of the law to legal authorities because there’s a potential that their employer will punish them for their actions. But the law provides federal employee whistleblower protection and avenues for federal employees to initiate legal action if they are unfairly penalized. The Laws The Legislature passed the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012 (WPEA) to protect federal employees from professional harm motivated by their disclosure of misconduct. The law recognizes the public benefit in preventing unfair punishment of government whistleblowers. An employee has the right to formally complain if an employer takes any of the following actions against you because of your whistleblowing: The whistleblower laws also protect and provide legal options for applicants for federal employment. If you signed a non-disclosure agreement before or during your employment with a federal agency, have an experienced attorney review the terms. While your federal employer can require you to sign and comply with non-disclosure agreements, the WPEA prohibits agreements that conflict with whistleblower protection laws. Where to Report Employer Wrongdoing Once you are aware that your employer has committed a violation, you can report the wrongdoing to your supervisor/management, the Inspector General (IG) for your agency, the Office of Special Counsel (OSC), or Congress. If your report of misconduct includes classified national security information or legally protected information, you must use confidential means, such as reporting to your IG, OSC, or Congress. Privacy Protections for Whistleblowing Employees In addition to protection from professional punishment, the law protects whistleblower privacy. If you divulge legal violations to an IG or the OSC, both authorities are generally prohibited from revealing your identity. The IG may disclose your identity only if the disclosure is unavoidable or required by a court order. And the OSC may reveal your identity only if it concludes that disclosure is necessary because of imminent danger to the public or an imminent violation of criminal law. Filing a Whistleblower Retaliation Complaint If you are a whistleblowing employee who is unlawfully punished at work, the law allows you to seek legal redress from the OSC and the U.S. Merit Systems Protection Board (MSPB). If the OSC or MSPB determines that your employer violated one of the whistleblowing laws, you can win: To win, you must prove that your employer took employment action against you because of your whistleblowing. And after you initiate legal action, your employer can defend itself by proving by clear and convincing evidence that it would have taken the same action against you regardless of your whistleblowing. When you file a whistleblower retaliation complaint, you must meet multiple deadlines and complete significant amounts of paperwork. You should speak to an experienced federal employment attorney immediately after suffering unlawfully motivated punishment at work. An experienced attorney can quickly and timely file the necessary complaint paperwork and guide you through the process and your legal options. Our Attorneys Help Federal Employees At the Federal Employment Law Firm of Aaron D. Wersing, our attorneys are uniquely skilled at protecting the rights of federal employees. We have helped hundreds of federal employees reverse adverse employment decisions, receive work accommodations, and win damages. We are experienced in handling virtually every type of federal employment legal dispute. You work hard to protect the interests of this country, and we work hard to protect you. Please call us at 866-298-1681 or contact us online.

Dec 26, 2022 | By Aaron D. Wersing | Read Time: 5 minutes | Federal Employment Law

Security Clearance and Suitability Determinations

Whether you are a current or prospective federal employee, you will probably have to obtain and hold a security clearance. The federal suitability determination process for employees can seem like a black box. So federal employees naturally have many questions about the process, especially if they receive an unfavorable suitability determination. Read on to learn more about the security clearance process and suitability determinations made by the government. We will also cover what happens when you get an unfavorable suitability determination letter. If you have any other questions, consult a qualified federal employment attorney. How Does the Security Clearance Process Work? The federal government offers a meaningful career for many people. But for obvious reasons, the government needs to ensure that its own employees are stable, reliable, and loyal citizens. Without this mechanism, grave damage to national security and the functioning of the country could result. The government’s security clearance process has evolved over the decades to properly evaluate potential and current government employees. There are three national security clearance levels. Those three clearance levels are, from least to most secure: Each of these levels involves different levels of testing. The higher the security clearance, the more frequent and more thorough the testing for suitability determination. What Factors Affect a Suitability Determination? There are 13 factors that influence how the government evaluates a federal employee. Those factors are: Each one of these categories has specific conditions that, if true, may result in an adverse suitability determination. But there are actions you can take to help mitigate these negative conditions. Let’s explore some of these suitability factors in more detail so you can understand how the government makes suitability determinations. Allegiance to the United States Every suitability determination’s starting point is checking whether you have “unquestioned allegiance to the United States.” Disqualifying conditions related to this factor include: Obviously, all of these conditions are serious and seem clear-cut. Yet sometimes, well-meaning people can participate in an organization that has more malicious intentions. If you find yourself in a situation where you have an association with one of these organizations, you can mitigate the risk by showing you were not aware of the unlawful aims of the group and subsequently severed ties. You can also mitigate these concerns by showing that your involvement, even if intentional and knowing, was not recent. Emotional, Mental, and Personality Disorders For this category, government investigators will attempt to assess whether you have any emotional, mental, or personality disorders that make you unreliable or unstable. Some of the specific conditions that may disqualify you include: If your profile raises one or more of these concerns, you can mitigate those concerns by showing that you are currently healthy and that your emotional or mental instability was only temporary. Providing a recent opinion from a mental health professional stating your condition is cured or under control also helps. Personal Conduct “Personal conduct” is a vague phrase, so it’s a category worthy of further exploration. The government defines “personal conduct” as any behavior demonstrating “questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules” that could indicate a person might not protect classified information. Here are a few examples of personal conduct that would concern government investigators: If one of these conditions describes your past, you can take action to mitigate them. Specifically, focus on demonstrating that: Having an attorney by your side in this process is one of the best ways to maximize your chances of a positive outcome. A federal employment attorney will have extensive experience regarding these issues and can give you helpful pointers and tricks to round out your application. An attorney can also help you answer specific questions about how to respond to certain questions. How Can I Maximize My Chances of Obtaining a Favorable Suitability Letter? You can take a wide variety of actions to help your chances of passing a security clearance. For one, you can avoid any criminal activity and any group that may want to overthrow the government. Also, avoid using drugs that are illegal at the federal level. This includes marijuana. Although many states have legalized marijuana, the federal government still prohibits it inside and outside the federal workplace. Limit your alcohol usage as well. Legal incidents involving alcohol use and alcoholism are both grounds for disqualification. Additionally, you should be prepared to explain any involvement you have with foreign nationals. If you are a dual citizen, you cannot obtain a security clearance without giving up your other citizenship. When Do Suitability Determinations Occur? All prospective employees need to undergo a suitability determination before their first day of work. After that, recurring suitability checks continue every few years. If you have a top-secret clearance, you’ll undergo a periodic reinvestigation every five years. If you have a secret or confidential clearance, you’ll undergo a periodic reinvestigation once every decade. The government can also conduct suitability checks on federal employees randomly and without notice. What If the Government Issued a Suitability Denial Letter to Me? If the government has denied you a security clearance, you have the right to appeal. If you are a current federal employee, you can also appeal your agency’s decision to take away your security clearance. The best way to start your appeal is by assessing the government’s reasons for its actions. Then, hire an attorney to plead your case before the relevant authorities and collect evidence in your favor. How Long Does It Take to Obtain a Security Clearance? According to a 2015 Annual Report by the Office of the Director of National Intelligence, it takes federal employees about six months to obtain a security clearance. Top secret clearances can require a year to obtain, while confidential clearances generally require about four months. Does Every Agency Have the Same Suitability Requirements? Not necessarily. The Department of Homeland Security’s (DHS) suitability requirements differ from those of the Central Intelligence Agency. However, most security clearances are respected by other agencies. Have More Questions About Security...

Dec 23, 2022 | By Aaron D. Wersing | Read Time: 5 minutes | Federal EEOC

How to File an EEO Complaint

Filing an EEO complaint is something few employees ever imagine doing. Most of us hope to have colleagues and supervisors who are at least professional, if not friendly and supportive. Unfortunately, many federal employees experience illegal discrimination in the workplace. This includes discrimination based on characteristics such as race, color, national origin, and sexual orientation. If you feel you are the target of discrimination, you must take action by filing an EEO complaint. Read on to learn more about the EEO complaint process from an experienced federal employment attorney. When you are ready, contact us today to take your first steps toward justice. When Should I File an EEO Complaint? You should consider filing an EEO complaint whenever you are the victim of illegal discrimination or harassment. Discrimination refers to any different treatment you receive in your employment. Harassment is any aggressive or unwelcome behavior that produces a change in your work conditions or creates a hostile work environment. The law prohibits discrimination and harassment based on the following characteristics: In addition, it is illegal for your employer to discriminate against you because of your involvement in any hearing or investigation under any federal anti-discrimination law. The law protects every aspect of your federal employment from discrimination. Maybe your boss passed you over for a promotion because of your race. Or perhaps your supervisor removed you from a key project because of your disability. Even an act as simple as denying you an office parking spot can qualify as discrimination if done for an illegal reason. Sometimes discrimination is overt and obvious. Other times, it can be almost impossible to detect. The truth is that you should contact an attorney even if you are not sure whether you’re the target of discrimination. An experienced employment attorney, with their knowledge and familiarity, can quickly spot red flags. How the Process of Filing an EEO Complaint Works Here we outline the steps involved in filing and resolving an EEO complaint. But before any of this happens, our best advice is to contact an experienced federal employment attorney. Give us a call as soon as you realize you are a victim of discrimination. We will guide you through the process to ensure you get the compensation and justice you deserve. Step 1 – Contacting an Agency EEO Counselor The first step in launching your EEO complaint is to contact an agency EEO counselor. All federal agencies have an EEO office to receive and process agency EEO complaints. Within each one of these offices are EEO counselors, who serve as unbiased agents. Counselors who collect information about your version of the facts, walk you through the EEO process, and advise you of your rights under the law. They will also inform you of alternative dispute resolution methods so that you and the agency have the chance to resolve your complaint at the lowest level. Whether you have an attorney to represent you or not, the law requires you to contact an EEO counselor. You also need to act quickly. You have only 45 days from the date of the discriminatory or harassing act to contact a counselor. If you wait until after that time to contact a counselor, the agency will dismiss your claim. However, you can ask the agency to extend the timeline if you: Agencies have to act within certain timelines as well. Once you have contacted their EEO office, they must conduct your initial counseling within 30 days. After the counseling, your agency EEO office will give you a form called a Notice of Final Interview. This Notice informs you of your right to file a formal discrimination or harassment complaint. Step 2 – Filing a Formal Complaint You have only 15 days to file a formal complaint after you receive the Notice of Final Interview. To file a formal complaint, you (or your attorney) need only submit a complaint with your signature, contact information, and your general claims. If new details emerge after you submit your initial complaint, you can amend your complaint. Once you send your complaint to the agency, it will send you a letter acknowledging your complaint. Shortly afterward, you will receive a letter from the agency accepting your claims for investigation. It is vital you pay attention to how the agency describes your allegations. It is common for agencies to mischaracterize your claims, leading to a poor investigation and a faulty final agency decision. Step 3 – The Agency Investigation The Agency typically has 180 days to conduct an investigation. In most cases, an investigator from an outside agency (or from a different part of the agency) spends several months interviewing witnesses, collecting relevant evidence, and compiling their report. The investigator’s goal is to develop a factual record that is unbiased and impartial to all parties. When the investigation is complete, you and the agency’s legal department will receive a copy of the investigator’s Report of Investigation (ROI). At this point, you can choose to request either a hearing before the Equal Employment Opportunity Commission (EEOC) or a final decision from the agency regarding your claims. Settlement is another option you and your attorney may consider during this process. Depending on the facts that the investigator uncovers, your agency may be eager to resolve the case and give you appropriate compensation. Step 4 – EEOC Hearing If you decide to file for a hearing, your case will transfer under the jurisdiction of the EEOC, an agency that focuses primarily on resolving claims of discrimination and harassment. A special administrative judge (AJ) oversees each EEOC hearing. Before the hearing, the parties will meet for an initial conference and engage in settlement negotiations. They will also receive the opportunity to conduct discovery, which allows them to collect evidence from the opposing party. In some cases, your attorney may be able to draft a special motion which can lead to you prevailing without even going to a hearing. Once at the hearing, your attorney will present evidence and make...

Dec 21, 2022 | By Aaron D. Wersing | Read Time: 3 minutes | FERS Disability

How Many Years Does It Take to Be Vested in FERS?

When it comes to questions about retirement benefits under the Federal Employee Retirement System (FERS), the answers are usually complex. But the answer to the question, “How long do I need to work to be vested in FERS” is quite simple: five years. But these five years must be creditable service in the federal civilian service. Active duty or reserve duty in the armed forces does not count. Neither does any kind of private-sector employment. Once your contributions vest in FERS, your options for retirement change. The vesting requirement also affects your options if you leave the federal government before retirement age. Because understanding vesting requirements is essential for receiving retirement benefits, we’ll discuss the basics of FERS vesting requirements in this article. For answers to specific situations or unique problems, contact one of our knowledgeable federal retirement attorneys. Understanding the FERS System Congress created FERS in 1986 to replace the aging Civil Service Retirement System (CSRS). Anyone who has joined the federal service after 1987 automatically falls under FERS. Under FERS, employees receive three main retirement benefits: a Basic Benefit Plan, Social Security, and the Thrift Savings Plan (TSP). With this three-tiered scheme, every employee has to give a portion of their pay to the Basic Benefit and Social Security parts of FERS. Each employee’s agency contributes as well. Then, after retirement, those accumulated funds return to the employee as monthly retirement annuity payments. Employees can also choose to contribute to the TSP, which essentially functions like a 401k. Why Is Vesting Important? Vesting plays a critical role in determining your options for receiving your FERS contributions. How it affects your options changes based on your situation. If you are already eligible for retirement but leave before you attain five years of service, you will not receive any retirement payments. For those who leave the government before becoming eligible for retirement, vesting allows you to opt for a deferred retirement annuity. This means that the government will send you your monthly retirement annuity pay after you reach your retirement age. If you did not meet the vesting time requirement, your only option would be to request that the government return your retirement contributions to you in a lump sum. This means you would never receive the government’s contributed money. However, some people may prefer to have a little money today rather than more money down the road. At What Age Can I Retire? The answer to this question depends on your length of service. If you have at least five years of government service, you can retire at age 62. With at least 10 years of government service, you can retire at your minimum retirement age (MRA). The MRA varies on your birth year, but it is between 55 and 57. However, if you have fewer than 30 years of service, your annuity will suffer a significant penalty if you retire before 62. Understanding Vesting Requirements for FERS Disability Retirement FERS also includes a disability retirement scheme for employees who need to stop working because of a debilitating and long-term illness or injury. The vesting requirement for receiving disability retirement is only 18 months. Is There a Vesting Requirement for the Thrift Savings Plan? Unlike the Basic Benefit and Social Security portions of FERS, employees can choose whether to contribute to the TSP. Any contributions by the employee vest immediately. However, the government’s contributions do not vest until you have achieved three years of civilian federal service. Once you hit 59 1/2 years of age, you can begin withdrawing money from your TSP. If you try to withdraw TSP funds before that time, you will incur a 10% early withdrawal tax. Have More Questions About Vesting Requirements or FERS? Although you now know the answer to “How long does it take to be vested in FERS?” you probably have other questions about retiring. As we mentioned before, the FERS retirement system is complicated. Even seemingly straightforward topics can become confusing quickly. And the stakes are high since you are making decisions that significantly affect your life as a retiree. Don’t lose sleep thinking about how to navigate the tangled world of retirement benefits. Instead, call one of our attorneys at the Law Office of Aaron D. Wersing, PLLC. Our passion is to help federal employees with every aspect of their careers, including retirement options. Let us help you build a secure and worry-free financial future. Call us today at 1-866-612-5956 or reach out online.

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