Sexual Orientation Anti-Discrimination Policies Aren’t Uniformly Interpreted, Says MSPB

A recent Merit Systems Protection Board (MSPB) report claims that anti-discrimination policies covering sexual orientation aren’t being uniformly interpreted by agencies. According to MSPB, legislation is needed to get everyone on the same page.

The Office of Personnel Management (OPM) has interpreted the tenth Prohibited Personnel Practice to prohibit sexual orientation discrimination since 1980. This practice prevents discrimination in federal personnel actions based on conduct that does not affect job performance.

However, the prohibition has not been outlawed in statute or in a judicial decision, subjecting it to alternate interpretations, according to MSPB.

Executive Order 13087 prohibits sexual orientation discrimination in federal government. However, the order does not specify any way to enforce rights or remedies for alleged victims of discrimination.

Both the OPM rule and the executive order need to be cleared of ambiguity. According to the report, legislation explicitly prohibiting sexual orientation would resolve the issue.

As MSPB puts it:

“Such legislation could grant federal employees who allege they are victims of sexual orientation discrimination access to the same remedies as those who allege discrimination on other bases.”

Brief History of Sexual Discrimination in the Federal Workplace

Before 1975, government policy took sexual orientation into account when determining suitability for federal employment. It is unclear how many people were denied employment or who had their employment terminated based on sexual orientation, not to mention how many may not have sought federal employment for fear of discrimination.

In 1978, the tenth Prohibited Personnel Practice (PPP) barred discrimination in federal personnel actions based on conduct that does not adversely affect job performance. However, the prohibition wasn’t interpreted (by OPM) as barring sexual orientation discrimination until 1980.

Then, in 1998, an executive order was signed, affirming the policy of non-discrimination based on sexual orientation in federal employment. Since it was only a statement of policy, the order provided no enforceable rights for alleged victims of discrimination.

Sexual Orientation Discrimination Today

In 2012, OPM’s annual Federal Employee Viewpoint Survey (FEVS) asked employees to self-identify their sexual orientation for the first time. The resulting data set showed that LGBT employees are represented in the supervisory, managerial, and executive ranks in the same proportion as they are in the overall federal workforce.

But what are the perceptions of sexual orientation discrimination among federal employees as a whole? A 2010 MSPB survey showed that three percent of respondents reported that sexual orientation discrimination had occurred in their workplace. Roughly the same percentage of employees had also perceived other PPPs had occurred including discrimination based on marital status and national origin. And an additional one percent of respondents reported being the direct target of sexual orientation discrimination.

On the other hand, the survey found that 81 percent of supervisory respondents and 68 percent of non-supervisory respondents agreed that their organizations have clearly communicated that they prohibit discrimination based on sexual orientation.

While the federal workplace has become less tolerant of sexual orientation discrimination, there is still plenty of room for improvement. Clearing away the ambiguity in the regulatory environment would be a positive next step in preventing this type of discrimination in our federal organizations. If you believe you have been discriminated against for any reason, please reach out to our knowledgeable federal employee attorneys at Snider & Associates, LLC.

Posted in Discrimination, EEOC, Federal Employment, Federal Employment Law, MSPB, OSC | Leave a comment

What Federal Employees Need to Know About Last Chance Agreements

Last Chance Agreements (LCAs) are one of the most dreaded situations for any federal employee to be in. Entering into an LCA is like walking a tightrope – one wrong move, and you may be terminated from federal service. So, what exactly is an LCA, and what do you need to know if you ever find yourself in this harrowing position?

An LCA is issued when a federal agency gives an employee one final opportunity to correct poor performance, inappropriate behavior, or some other form of misconduct. If you receive an LCA and fail to meet its requirements, you may be suspended or removed from your position.

LCAs are often used in settlements for actions pending before the Merit Systems Protection Board (MSPB) when a federal employee has been removed from service. These agreements are narrowly tailored and must be adhered to entirely in order for a job to be saved. Last Chance Agreements often require that you waive your right to file an appeal with the MSPB. However, waiving this right does not completely constitute your surrender to any and all recourse you may have against your agency.
The MSPB will hear an adverse action appeal arising from an LCA violation under the following conditions:
• The federal employee can prove they complied with the LCA
• The agency materially breached the LCA or acted in bad faith
• The federal employee did not voluntarily enter into the LCA
• The LCA resulted from fraud or mutual mistake

If you appeal to the MSPB, the burden of proof is on you; in other words, you must establish that sufficient evidence to support an allegation of one of the occurrences mentioned above exists. The evidence should demonstrate that a non-frivolous allegation of facts exists, warranting a review by the MSPB. This is the only way a federal employee can exercise his or her right to appeal an adverse action resulting from an LCA.

A Last Chance Agreement is a legal contract with terms that are negotiable and subject to the agreement of all parties. Therefore, it is in your best interest to have a federal employment attorney review the LCA and include the best language possible to reduce your risk of termination, to the extent possible. If you need assistance with an LCA, please get in touch with Snider & Associates today.

Posted in Uncategorized | Leave a comment

5 Things You Need to Know About Being Absent Without Leave (AWOL)

As a federal employee, if you are ever Absent Without Leave (AWOL), your agency may take a disciplinary action and/or adverse action against you. However, you usually have some kind of recourse for challenging the allegations. You have several options available to you, and an attorney who is familiar with federal employment litigation can help you fight back against erroneous AWOL charges.

But first, it helps to have some background information on AWOL in general. Here are five things federal employees need to know about being AWOL.

1. AWOL does not necessarily mean that you had insufficient reason for requesting leave. It might mean that your presence was required at work.

2. Under certain circumstances, you may appeal an adverse action involving AWOL to the Merit Systems Protection Board (MSPB).

3. AWOL charges are rarely alleged by themselves. Federal agencies usually include allegations of leave abuse and/or failure to follow procedures along with the AWOL charges.

4. When the MSPB hears AWOL appeals, they often involve an employee’s need to attend healthcare appointments, whether or not a doctor’s note was sufficient, and denied requests for sick or annual leave. Therefore, a successful appeal may involve failure to accommodate, disability discrimination, association discrimination, and improper denials of FMLA.

5. A federal agency must prove three elements to establish an AWOL charge. These elements are:
• The federal employee was absent.
• The absence was not authorized.
• A request for leave was properly denied.

As with any other type of federal employee litigation, it is in your best interest to act early. You will be required to raise affirmative defenses and counterclaims early in the proceedings, and failing to act early may prevent you from acting altogether.

Posted in Uncategorized | Leave a comment

Performance Improvement Plans for Federal Employees Part 2

In our last article, we discussed what you can expect if you ever find yourself on the receiving end of a Performance Improvement Plan (PIP). Even if you have fallen short of the standards set for your position, your agency must provide you with an action plan to guide you to success in your job.

If you successfully improve under a PIP, you can expect to be notified by your agency, and you will be able to resume employment with no further action. However, it is up to you to achieve that success, and unfortunately, sometimes federal employees aren’t able to improve enough to retain their jobs. This article will cover what happens when you fail to meet the objectives set forth by a PIP.

If an agency determines that you have failed to improve, or have failed to adequately correct the performance deficiencies identified in the PIP, your agency will likely propose your dismissal from federal service. If you are removed from service, you still have options. Typically, you can appeal your removal to the Merit Systems Protection Board (MSPB). A removal from federal service for poor performance is generally brought under Chapter 43 of the United States Code. It is also possible, however, to remove a federal employee from service under Chapter 75. This type of removal is more commonly used in instances of misconduct.

There are a number of reasons why employees appeal a removal from federal service. Perhaps you truly feel you have made strides towards improvement, and that you took the steps set forth by the PIP with success. However, even if you know you did not improve enough to satisfy the standards of your position, you still may wish to appeal. Your agency could have made a variety of procedural mistakes in the implementation or execution of your PIP, as well as in the issuance of the notice of proposed action. These procedural mistakes can be difficult to recognize, so it is always a good idea to seek the assistance of an attorney who is experienced practicing before the MSPB.

At Snider and Associates, we hope you never have to go through a PIP, and especially, a removal from federal service. However, if you do find yourself in one of these tough situations, contact us as soon as possible for more information on how to proceed with your PIP or appeal to the MSPB.

Posted in Uncategorized | Leave a comment

Performance Improvement Plans for Federal Employees – Part 1

Unfortunately, some federal employees will find themselves the recipients of a poor performance review at some point in their careers. If this setback happens to you, you’ll want to be sure you maintain your rights as you work to correct any problems in your career. This article will provide some background knowledge on Performance Improvement Plans (PIPs) in case this unfortunate situation should ever happen to you.

First of all, it is important to realize that poor performance is a legitimate, non-discriminatory reason for an agency to propose a reassignment, demotion, or removal from federal service. However, if your performance rating has fallen below the acceptable standards for your position, the agency is required to provide you with the opportunity to improve before proposing an adverse action based on poor performance.

Enter the Performance Improvement Plan (PIP). This plan is used to provide an employee with notice that their performance is not up to par. The PIP outlines a plan for improvement in the critical elements, sometimes called the core elements, that were deficient in his or her job performance. Often, the supervisor signs the PIP and outlines training opportunities available to the employee.
Most of the time a PIP is a prerequisite to issuing a notice of proposed removal for deficient performance. This tool is designed to enable a federal employee to improve performance and avoid further action. The PIP should provide a “meaningful” opportunity for improvement; in order for the opportunity to be meaningful, the employee must be made aware of several things when he or she is placed on a PIP.

1. The agency must make it clear to the employee that they have observed performance deficiencies in critical elements of the employee’s position.

2. The agency must tell the employee specifically what he or she must do in order to achieve a successful rating; the standards by which their improvement will be evaluated; what guidance, training, or assistance management can provide; and the consequences if the employee fails to improve.

3. The agency must tell the employee the length of the PIP, including the start and end dates and any extensions granted.

In Part 2 of this article series, we will look at the consequences of failing to improve, as well as the options available to federal employees facing a PIP.

Posted in Uncategorized | Leave a comment

What Happens When you File an Appeal with the MSPB?

When it comes to the law, the more you know, the better. The Snider and Associates law team always welcomes inquiries about legal issues federal employees are facing, but we also hope to provide background knowledge through this blog. While it cannot replace legal advice, our blog can introduce federal employees to legal situations they may find themselves in.

So, let us take a look at what federal employees can expect when they have filed an appeal with the Merit Systems Protection Board (MSPB).

Discovery: Once you have filed an MSPB appeal, you will receive an Acknowledgement Order from the Administrative Judge who is assigned to your case. This document will present the deadlines you will need to adhere to during litigation.

The time to commence formal discovery will be stated in the A&O but it is in your best interest to begin the discovery process as soon as possible. And, if you fail to send discovery to the opposing counsel within the time period required, you may forfeit your right to take advantage of the discovery process.

Depositions: This part of the process involves questioning key witnesses, such as co-workers and supervisors, under oath to gather the facts and sworn testimony necessary to win an your appeal. Federal employees also have the option of questioning the “deciding” and “proposing official” (under oath as well) to determine why they sustained or proposed a disciplinary action against the employee and to determine if there were any violations of due process rights. Another purpose of depositions is to determine why the agency believes a lesser penalty would not “promote the efficiency of the service.”

Agency Response: Finally, employees will want to know what to do if the agency fails to respond to their discovery requests. Unfortunately, Appellants often have a difficult time drafting the necessary discovery requests in their case – especially if they are not represented by counsel. They may also have a hard time obtaining a meaningful response from the agency’s attorney.

These setbacks can compound an already-difficult situation. When it comes to these types of complications, it is important that employees have the federal employment attorney who is representing them communicate with opposing counsel as soon as possible to resolve any discovery problems, or to file a “motion to compel” with the MSPB if it becomes necessary.

For further information regarding your case, please contact Snider and Associates today.

Posted in Uncategorized | Leave a comment

What Federal Employees Need to Know About Retaliation

The more federal employees know about legal issues that may concern them, the better able they are to react quickly when necessary. However, retaliation is a legal area many people are unfamiliar with. Here is an overview of the most important things you need to know about retaliation.

What is retaliation?

When a federal employee engages in protected activity, and then is the target of adverse actions by management, it is called retaliation. Protected activity may include legal activity or the filing of complaints or grievances that raise allegations of discrimination. In other words, retaliation occurs when management strikes back at employees who have taken action to protect or recover their rights.

Retaliation is illegal.

It is important to know that retaliation is illegal, and that you should contact a federal employment lawyer immediately if you believe you have been retaliated against.

Why should you act quickly?

When facing retaliation, swift action is important for a few reasons. The first reason is that there are many deadlines for filing suits protesting retaliation that you must meet. Failing to meet these deadlines will make it very difficult to pursue your case. For federal employees, a 45-day deadline applies, while other employees may have to adhere to a 180 or 300-day deadline.

The second reason is that early action will enhance your recollection of events, making it easier to provide all the details necessary to prove your case. If you haven’t been documenting everything in your case, early action will be even more important.

What should you do if you have been retaliated against?

If you believe you have been retaliated against, the most important thing you can do is to contact an experienced federal employment lawyer who can help you take the correct actions and win your case.

Posted in Uncategorized | Leave a comment

Discrimination Case Round Up

Unfortunately, workplace discrimination occurs across a wide range of industries on a regular basis, In each of the five highlighted cases below, legal action is being taken to rectify a variety of unjust situations. Read on to get an idea of how discrimination cases are being played out across our country right now.

1. DHL Global Forwarding Paid $201,000 to Settle EEOC National Origin Discrimination Suit:

Nine employees received $201,000, and other significant relief, from DHL Global Forwarding to settle a national origin hostile environment lawsuit brought by the EEOC. The Commission charged DHL Global (on behalf of Carlos Villanueva) with subjecting a class of Hispanic employees to national origin discrimination, and it also resolved a retaliation claim by one non-Hispanic employee who was allegedly fired after he reported the negative treatment of the Hispanic employees.

2. UPS Sued By EEOC for Religious Discrimination:

Another delivery company faced a lawsuit, this time for religious discrimination. United Parcel Service, Inc. (UPS) fired a truck loader because of his request to attend an annual Jehovah’s Witness service, so the EEOC filed a lawsuit on November 29, 2012.

3. EEOC Sued Staffmark and Sony for Disability Discrimination:

When Staffmark Investment LLC and Sony Electronics, Inc. terminated a woman with a prosthetic leg because of her disability, the EEOC filed a disability discrimination lawsuit. The two companies’ actions directly violated the Americans with Disabilities Act (ADA).

4. Trinity Health Corporation Agreed to Settle EEOC Retaliation Lawsuit:

National Catholic health care system Trinity Health Corporation agreed to settle an employment discrimination lawsuit by the EEOC due to an illegal policy it had held since at least February 2008. This policy denied or delayed severance payments to employees and former employees who signed severance agreements and then filed discrimination charges with the EEOC.

5. American Samoa Government and EEOC Settled Age Discrimination Suit:

The EEOC settled an age discrimination lawsuit against the American Samoa government on behalf of a class of older workers who were allegedly forced into retirement or reassigned into undesirable positions to free up positions for young people. The U.S. territory agreed to a process for government-wide reinstatement of ousted older workers and to extensive relief to prevent age discrimination.

Posted in Uncategorized | Leave a comment

5 More Things You Need to Know About the EEOC’s Revisions to 29 CFR 1614

In our last post, we covered five things federal employees need to know about the EEOC’s revisions to 29 CFR 1614. Continuing on with this important topic, here are five more things you need to be aware of.

1. When the EEOC issues a notice of non-compliance to an agency, it will not necessarily make the notice public. The EEOC Chair may determine whether a notice of non-compliance should be made public, according to his or her discretion. While the EEOC is in the process of developing standards and guidance for compliance issues and its own procedures for issuing a notice of non-compliance, agencies can’t currently count on having access to a public notice.

2. The EEOC has not yet issued pilot project guidance so agencies will know which ones they are allowed to conduct. Hopefully, the EEOC will include these guidelines in MD-110, but for now, the Commission is open to innovative proposals that protect certain basic rights of all parties involved.

3. According to its Notice of Proposed Rulemaking, the EEOC has proposed that pilot projects be approved only for a one-year period. However, the final rule states that a pilot project may run for two years, and that, if good cause is shown, the project may be extended for an additional year.

4. Normally, when a complaint that alleges that a proposed action is discriminatory, it would be dismissed by an agency. However, the revisions made to Part 1614 state that a complaint alleging that a proposed action is retaliatory can state a claim (and should not be dismissed automatically). So, challenges to proposed actions generally will be actionable when the complainant alleges the action was issued because the complainant had engaged in prior EEO activity, the complainant had opposed a practice which he or she believed violated a federal EEO law, or when the action was issued to dissuade the complainant from engaging in protected EEO activity.

5. Now, an agency must issue a notice during the investigatory stage of the EEO complaint process. Part 1614 states that, if an agency does not complete its investigation within the required time period (within 180 days from the filing of a complaint), it must, during the same time period, issue a written notice to the complainant informing him or her that the agency is unable to complete its investigation within the required time limits. This notice must include an estimate of when the investigation will be completed as well as an explanation that if the complainant does not want to wait, he or she may file a civil action instead.

These changes are just a sampling of the revisions made by the EEOC. Are you confused by the recent changes to 29 CFR 1614? Don’t hesitate to contact us if you have concerns about your rights. We’re here to answer questions so you can be sure you understand what to do if you ever need to file a complaint with the EEOC.

Posted in Uncategorized | Leave a comment

5 Things You Need to Know About EEOC’s Revisions to 29 CFR 1614

In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) published the final rule specifying changes to 29 CFR 1614. If you are a federal employee, you need to know about these revisions in case you, or a co-worker, ever need to file a complaint with the EEOC.

Here are five things you need to know about the revisions so you can stay informed and keep yourself protected.

1. The purpose of 29 CFR Part 1614 is to direct agencies on how to administer their EEO programs and to demonstrate how to file and adjudicate complaints of employment discrimination filed by federal employees and applicants.

2. These recent revisions are not the first to the rules; substantial revisions to Part 1614 were published in 1999.

3. The EEOC revised Part 1614 again to improve the federal sector complaints process, in accordance with the Federal Sector Workgroup’s suggestions. The Workgroup was established by the EEOC to improve these processes.

4. Federal executive agencies and others (such as the U.S. Postal Service and the Smithsonian Institution) are required to comply with 29 CFR Part 1614. However, Part 1614 does not apply to the uniformed members of the federal government’s military departments, to members of Congress or their staff, to non-U.S. citizens employed by federal agencies in locations outside the U.S., to state or local governments and their employees, to employees of the federal court system, or to private sector employers and employees.

5. The Final Rule’s most significant revisions to Part 1614 are:
• A requirement that agency EEO programs comply with part 1614 and EEOC Management Directives and Management Bulletins.
• A new subsection allowing agencies, with prior Commission approval, to conduct pilot programs whose procedural complaint processing procedures vary from the requirements of Part 1614. 29 CFR § 1614.102(f).
• New language stating that a complaint which alleges that a proposal or preliminary steps to take a personnel action is discriminatory can be dismissed unless the complaint alleges that the proposal is retaliatory.
• A requirement that an agency which has not completed its investigation in a timely manner provide the complainant with written notice that the investigation is not complete, an estimated date of when the investigation will be completed, and a notice that the complainant has a current right to request a hearing or file a lawsuit.
• A revision to the class complaint regulations making an administrative judge’s decision on the merits of a class complaint a final decision, rather than a recommended decision, which an agency can implement or appeal.
• A requirement that agencies submit appeals and complaint files to EEOC in a digital format, unless they can establish good cause for not doing so.

In our next blog post, we will continue discussing the changes to 29 CFR 1614, so be sure to check back with us.

Posted in Uncategorized | Leave a comment
cheap ugg boots sale uk cheap ugg boots uk sale cheap uggs uk ugg Uk uggs outlet cheap uggs