Ask FELTG
Have a question about federal employment law? Read below to find answers - or ask a question of your own.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...
Ask FELTG: Let’s say our agency fires an employee, but the MSPB AJ puts the employee back to work and orders back pay and attorney fees. The agency files a Petition for Review and it stacks up with the other PFRs waiting for a quorum at the Board to make a decision. It’s stuck in PFR no-man’s land. Does the employee go back to work, or does she wait until the Board issues a decision? What happens with the back pay and attorney fees?
Let's go with the premise: The agency fires the employee, and the AJ reverses that removal. If the agency then wants to PFR the AJ's decision, it must put the employee back on the payroll as "interim relief" in order to have the Board accept the PFR. Some agencies put...
Ask FELTG: If an employee elects to file an MSPB appeal on his mixed case issue, can he also bring in that same issue up in a separate EEOC claim under the hostile work environment umbrella, i.e., not as a discrete act?
The employee only gets one bite at the apple. If the employee files an MSPB appeal on a removal and raises discrimination as an affirmative defense, then files an EEO complaint arguing hostile work environment in which the removal is one of the acts alleged, then EEOC...
Ask FELTG: We would like to direct an employee to undergo a medical examination. In a recent class, you mentioned that there are three limited situations where an agency can direct an employee to undergo a medical evaluation. What are they?
As we discuss in our Absence, Leave Abuse & Medical Issues Week, OPM restricts an agency's authority to order an employee to undergo a medical exam (they don't call it a Fitness For Duty anymore) to just three situations: 1. Periodic screening due to...
Ask FELTG: If an employee has no sick leave on the books and requests a day of annual leave because he is incapacitated for duty, must the agency grant the annual leave request, or can the agency place the employee on LWOP?
If an employee is incapacitated for duty and has sick leave balance, the agency must grant the sick leave because it is an entitlement. A supervisor is not required to grant an annual leave request because there is no entitlement to that type of leave; however, the...