Ask FELTG
Have a question about federal employment law? Read below to find answers - or ask a question of your own.Ask FELTG: Should an agency remove a hypothetical employee for current misconduct when he’s separately being investigated for a security clearance issue, a matter in which the agency is considering an indefinite suspension? Or should the agency wait until the security clearance issue has been resolved? The misconduct is unrelated to the security clearance.
Let's add a little more context to this hypothetical scenario. The agency requires employees to maintain a security clearance as a mandatory condition of employment. When someone's security clearance is suspended pending review, the agency usually indefinitely...
Ask FELTG: What do you think about the recent precedential Federal Circuit case Sánchez v. VA, No. 2018-2171 (Feb. 10, 2020) and its establishing that settlement agreements don’t last forever?
Believe it or not, while this case might be designated as precedential, it’s actually not a precedent-setting position on the topic. The majority holding actually tracks old MSPB case law, and, we would offer, common sense. (And also, an old edition of Farnsworth.)...
Ask FELTG: How would one best charge misconduct involving a subordinate’s attempt to undermine a superior by making false allegations?
Our customer provided more details, including a hypothetical situation in which a subordinate claimed that his male supervisor was “hitting on” female customers. The problem the supervisor would have in this situation is that he might be dealing with whistleblowing. A...
Ask FELTG: Can an agency require an employee who has just returned from maternity leave to use a dedicated lactation room when her preference is to pump at her desk?
Before we answer the specific question, let's delve into the more specific details of this hypothetical situation that came in to FELTG. The agency's dedicated lactation room fits all of OPM and EEOC's guidance, and the agency has several back-up rooms to boot....
ASK FELTG: In light of Van Wersh/ McCormick, do you have any suggested language for a waiver of appeal rights in exchange for a new appointment?
Challenges to waiver language have not come up enough in caselaw since Van Wersh for us to have definitively worded notice language. However, the basic principle of waiver is that notice must be clear for any subsequent claim of waiver to be knowing. Many agencies...
Ask FELTG: Who uses Notice Leave in conjunction with removals? We were advised that we needed special approval and that we could only place an employee on this leave in very rare cases.
September 3, 2019 We simply don't understand why people would not use this gift of Notice Leave that Congress gave you for these exact situations. Notice Leave only applies during the Notice period. Why would Congress create it if they didn't want you to use it? A...
Ask FELTG: Are there any reasons why a Deciding Official should deny an employee’s request to extend the opportunity to respond to a proposal for an adverse action?
Let's look at it from another angle: The only time a Deciding Official is required to extend a response period is if a union contract says the employee is entitled to such an extension. Employees often try to get more time to prepare a response, and absent a...
Ask FELTG: Can a union official make disparaging remarks about a non-federal employee (contractor) working with agency managers? Is the union official protected under the “robust debate” umbrella?
Abusive or insulting language made by union officials may constitute robust debate in the following categories: Negotiations Newsletter Representational meetings Bulletin boards FELTG has not seen a case that involved robust debate toward a contractor (that doesn't...
Ask FELTG: If an employee is requesting leave without pay to cover an absence due to illness, can a supervisor and/or HR practitioner contact the medical provider to authenticate a medical certificate received from the employee? What if the employee was requesting sick leave? We just want to know whether the employee was seen by the medical provider on the date identified on the medical certificate.
The type of leave doesn't really matter in this instance, whether it is LWOP or sick or FMLA. When you use the term "authenticate," do you mean the questions to the health care provider would be something like: "Is this the document you signed?" or "Are these dates...
Ask FELTG: If a federal employee goes to an EEO office wanting to initiate a complaint of discrimination for alleging hostile work environment and other things related to conditions of employment but can’t state a claim alleging discrimination under the applicable employment discrimination laws like Title VII, etc., can the employee file a complaint?
An employee can file an EEO complaint about anything he wants. There is no prohibition on that. The EEO Office, when looking at the allegations in the complaint, should then dismiss any part of the complaint, or the entire complaint itself, if there is no covered...