The Devadoss Law Firm, P.L.L.C.FindLaw IM Template2024-03-09T18:57:12Zhttps://www.fedemploymentlaw.com/feed/atom/WordPress/wp-content/uploads/sites/1303482/2020/06/apple-touch-icon-75x75.pngOn Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2562342024-02-02T20:34:02Z2024-02-02T20:34:02ZUnderstanding the Hatch Act
The federal Hatch Act attempts to create a neutral, nonpolitical federal workforce. The law covers most employees in the executive branch as well as some in civil service jobs.
The Act attempts to depoliticize the federal workplace through restrictions on political activity – the type as well as when and where employees can engage in it. The law regulates activity involving political parties and partisan candidates for elected office.
Most covered employees are “less restricted employees” who must avoid political activity while at work or on duty but are free to engage in most partisan political activity when off duty. Tighter limits apply to “further restricted” employees mostly involved in security, law enforcement or elections.
The Act’s key limitations on covered employees:
Prohibit engagement in political activity while on duty, including while in a federal building, wearing a federal uniform or insignia, or while using government equipment like a vehicle, computer or email account
Restrict political campaigning for or against party-affiliated candidates or political parties while on duty
Forbid at all times the use of “official authority or influence for the purpose of interfering with or affecting the result of an election”
Ban on- and off-duty political fundraising or seeking elected office in an election with party affiliation
And others
Penalties for Hatch Act violations
These can be serious and may include:
Investigation by the U.S. Office of Special Counsel (OSC) followed by potential prosecution before the Merit Systems Protection Board (MSPB)
Reprimand, bar of federal employment for a maximum of five years, grade reduction, suspension or termination
Civil fines
OSC advisory on the Israel-Hamas conflict
On Jan. 16, a group of federal workers called Feds United for Peace organized a day away from work to protest the administration’s stance on the Israel-Hamas war. According to Government Executive, leaders of the group – after seeking ethical and legal advice – advised involved employees to take annual leave for the day.
This raises gray-area issues under the Hatch Act. Were they on duty when absent on approved annual leave days? Could this be interpreted as use of their official positions to make a political statement? Some in Congress are calling for discipline and questioning whether the event could have been an illegal strike, reports Government Executive.
On Nov. 29, 2023, the OSC issued an advisory opinion for federal workers on discussing the Israel-Hamas conflict. The key takeaway from the OSC advisory is that federal employees are permitted to discuss their views on the Israel-Hamas conflict while at work or on duty provided they do not advocate for or against a specific U.S. political party, group or candidate.
Federal employees should protect their careers
For federal workers, understanding the Hatch Act is crucial for safely engaging in political discussions. The OSC's advisory offers clarity for current global conflicts, but employees should always remain aware of the Act's restrictions to avoid potential penalties.
When in doubt, a lawyer who regularly represents federal workers can provide information and guidance on this complex and sensitive topic. Legal counsel can represent any federal employee who faces internal or OSC investigation, or MSPB prosecution for alleged violation of the Hatch Act, or who faces related discipline, discrimination or retaliation at work.
]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2562252024-01-14T18:47:04Z2024-01-14T18:47:04ZMost workers speak up about retaliation
Workers not only expect that a company should treat them fairly based on their abilities and work history, but they should also be able to speak up when the company does something inappropriate or allows certain employees to mistreat others. Unfortunately, many companies retaliate against or punish those who report misconduct in the workplace.
In 2022, the most recent year with data available, there was little question that retaliation claims as the most common issue brought to the EEOC's attention. The agency found that 51.6% of the reports it investigated involved retaliation. Of those complaints, a majority involved violations of Title VII, which forbids discrimination based on race, color, religion, sex and national origin.
Another 34% of the complaints filed with the EEOC had to do with disability discrimination, while 15.6% involved age discrimination. Complaints filed based on racial discrimination were slightly more common than sex discrimination allegations, while color and national origin both represented less than 10% of the complaints filed.
How workers can prove retaliation
A worker bringing a retaliation claim against an employer typically needs evidence supporting their claim. Documentation of the misconduct they experienced and also their attempts to report that misconduct could help a worker establish that punitive actions occurred immediately after they asserted their rights.
Often, those reporting employers to the EEOC require assistance as they navigate a complex process and attempt to advocate for themselves. Realizing that a situation is not particularly unusual might give a worker the courage necessary to take a matter to the EEOC.]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2562242024-01-12T07:04:37Z2024-01-12T07:04:37ZAllegations of harassment at ORMDI
According to Government Executive, the subpoena will allow the committee to gather documents relevant to sexual harassment allegations at the VA Office of Resolution Management, Diversity and Inclusion (ORMDI). Ironically, this office helps prevent and resolve internal disputes involving discrimination and harassment allegations.
In Nov. 2023, two VA whistleblowers brought allegations of sexual harassment by three officials at the ORMDI to the House committee. Allegations included sexual relationships with subordinate employees, negative treatment of those who refused advances, and “graphic” and “disturbing” text messages to the employees.
The subpoena vote
The whistleblowers’ allegations started the chain of events culminating in the subpoena vote. The chair, Rep. Mike Bost, R-Ill., reportedly reached out to the VA secretary for related information, which Bost said he never received, reports Government Executive. The January subpoena vote was a response to this and to the VA’s slow investigation.
Bost did not want to leave investigation to the agency alone, but rather chose to move forward with the panel’s own broad inquiry. He stated that the committee had not used its subpoena power since 2016 and that the step is “extraordinary.” Still, the VA says it will turn over its final report to the panel at the end of January, according to the article.
Bost reportedly wants to see the actual details of events behind the allegations as well as of the agency’s response. He also seeks to “determine whether VA has the authority it needs to appropriately discipline offenders and actually have a ‘zero-tolerance’ policy for sexual harassment.”
More information
We will continue to bring updates to this story to readers in this space as they develop. Anyone who works in the vast VA system and has concerns about sexual harassment should speak with an attorney experienced in representing federal employees in employment law disputes.
In the meantime, we recently provided two articles about related matters. One discusses sexual harassment of federal employees generally and the other whistleblower retaliation at the VA.
]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2562092023-11-03T16:58:42Z2023-11-03T16:40:59ZAbout The Devadoss Law Firm
The Devadoss Law Firm is a leading legal advocate for the rights of federal employees across the United States. With offices in Dallas, Atlanta, and Washington, D.C., our firm is dedicated to providing exceptional legal representation to federal employees wherever they may be. We are committed to upholding the rights and interests of employees nationwide through our comprehensive legal services and unwavering dedication to achieving positive outcomes.
For more information on The Devadoss Law Firm, please visit our website at https://www.fedemploymentlaw.com/ or give us a call at 888-351-0424.]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2561922023-10-30T16:07:05Z2023-10-26T22:22:39ZWhat could leave a federal whistleblower unprotected?
There are sever potential issues that could cost whistleblowers protection from retaliation, according to the MSPB:
They didn’t go through the proper channels. Whistleblowers must disclose their information to the right kind of party (who is not the alleged wrongdoer) in some way that is outside their normal duties. If they fail to meet the law’s requirements about where to file the complaint, they might not be protected from retaliation.
They complained about something that wasn’t protected. Federal whistleblowers can expect protection when they report the specific forms of wrongdoing defined in the statute. These include the violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. If a whistleblower’s complaint does not involve one of these things, the whistleblower might not be protected.
Their belief in the existence of the wrongdoing wasn’t reasonable. They acted on a hunch or simply did not have sufficient evidence to back it up. To be clear, whistleblowers who reasonably suspect wrongdoing are protected even if their suspicions turn out to be wrong. However, they might not be protected if their suspicion was not reasonable from the perspective of a neutral observer.
Federal whistleblowers play a crucial role in keeping our government honest and as efficient as possible. Don’t back down because the rules are complex.]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2561882024-01-08T06:09:01Z2023-10-19T18:50:31ZIs racial discrimination an issue in the USPS?
Unfortunately, these questions are still relevant. One such case is currently making its way through the court system. In this case, a worker claims that in 2015 she applied for a supervisor position. She argues that the USPS chose another applicant even though she was more qualified. She argues the choice was based on race, that the USPS hired another applicant because she is white while the more qualified plaintiff is black.
This statement is more than just an opinion. She can back it up. Her credentials for the position include over 25 years of service with the USPS, part of which included supervisor duties at the local post office’s retail unit. She also presented evidence of her success in these positions as the USPS recognized the plaintiff for several awards. Additional evidence includes three post-secondary degrees including an MBA.
There were more than a dozen candidates for the position, five of which were referred to the postmaster general for consideration. After reviewing the candidates, the postmaster general offered the position to a white candidate who had eight years of experience with the USPS and a high school diploma.
Important lesson: If at first you don’t succeed
It is important to point out that the trial court originally dismissed the lawsuit. The lower court stated that the USPS decision was not motivated by race. Instead, the decision to hire the white applicant was based on the fact she interviewed well while the plaintiff had come off as “too nice” to handle difficult employees.
The plaintiff did not accept the lower court’s finding. She appealed their decision. The federal appeals court stated the plaintiff provided ample evidence to establish she was more qualified for the position. Had the worker not appealed the lower court’s decision, her case would not have its day in court.
Postal Service workers may need to fight for their rights as federal employees
Federal laws are in place that provide USPS workers with protections against racial discrimination. It is important for those who believe they are a victim of race discrimination to use these laws to fight back. Legal counsel experienced in this niche area of employment law can review your situation and discuss your options.]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2561752023-10-09T23:14:38Z2023-10-09T23:14:38ZAs the Government Executive reports, hundreds of feds have seen their paid leaves continue indefinitely. Some have spent more than three years on administrative leave. This isn’t just a matter of wasteful bureaucracy; it is a violation of the Administrative Leave Act (ALA). And an environmental advocacy group has threatened to sue the Office of Personnel Management (OPM) if it doesn’t establish rules in compliance with the law.
What should happen when an agency investigates an employee?
Federal agencies often investigate employees who have acted inappropriately or whom they believe have acted in appropriately. Agencies cannot fire or demote employees without due cause, so they commonly use investigations to look for proof. Two different organizations help conduct these investigations:
Office of the Inspector General (OIG)
Office of Internal Affairs (OIA)
Regardless which office leads the investigation, its investigators will look for proof of wrongdoing. It is their job to find evidence to support disciplinary measures. It is not their job to find evidence supporting an employee’s reinstatement. As you can imagine, when there isn’t enough evidence to support the agency’s discipline, the investigation may drag on.
This can lead to lengthy investigative leaves, frequently in violation of the ALA. Passed in 2016, the law set time limits for these paid leaves, and it gave the OPM a deadline to get agencies on board. That deadline was September 19, 2017.
Now, as noted in the petition by Public Employees for Environmental Responsibility (PEER), the OPM is more than six years past its deadline, and hundreds of feds have since spent one to three years on administrative leave. This is in contrast to the statutory guidelines:
Agencies may not place employees on administrative leave for more than 10 days per calendar year
Agencies can then place employees on investigative leave for up to 30 days, extending this leave as necessary for up to 90 days total
Agencies must report to Congress any extensions of this leave beyond a total of 90 days
PEER filed its petition on September 22. It gave the OPM notice that it would consider filing suit in federal court if it saw no meaningful action within 60 days.
Why worry about paid leave?
Notably, PEER works largely with scientists and noted that several of its members had suffered due to the OPM’s failures. And while it may sound like the taxpayers and the agencies, themselves, may suffer the greatest damage from wasteful leave, it’s important to remember what these long investigations mean to the employees:
They are unable to address pressing environmental issues by continuing their work
They cannot advance their careers
They may be wrongfully and unlawfully “disappeared” without due process
Of course, the best employees are the ones who suffer most. When agencies continue to place them on leave as a means of sending them away, despite a lack of evidence, these employees cannot continue their work. When their work aims at supporting a healthy environment and ethical government practices, we all suffer for their exclusion.
More than six years after missing its original deadline for complying with the ALA, the OPM is now on the clock with a lawsuit pending. Only time will reveal if the OPM meets or misses this new deadline.]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2561742023-10-02T20:39:11Z2023-10-02T20:39:11ZWhat is a government shutdown?
Congress must pass legislation to fund the federal government. If Congress fails to establish funding by the deadline, federal agencies must cease their spending or “shut down.”
Notably, this does not mean that federal employees will all stop working. Instead, federal agencies will “except” certain individuals to continue working without pay. Other employees will continue working if their agencies are self-funded or have funding available outside of the annual appropriations. Agencies will then furlough the remaining workers, sending them home without pay.
How common are government shutdowns?
The United States had not encountered a government funding gap or shutdown prior to 1976. Since then, funding disputes have triggered shutdowns nearly every four years.
As the History Channel notes, the history of government shutdowns traces back to the Congressional Budget Act of 1974. That’s when Congress first gave itself strict deadlines for passing federal budgets. Two years later, we hit the nation’s first funding gap, but it did not lead to a shutdown. Then, in 1981, Reagan vetoed a funding bill and triggered the first shutdown. Altogether, we saw 10 shutdowns between 1981 and 2019.
Recently, we were within hours of another shutdown, but Congress narrowly avoided shutting down the government by passing a temporary budget. It remains to be seen whether Congress can pass a full budget ahead of its new deadline.
How many are affected?
Nearly everyone in the federal government is affected by a government shutdown. While many excepted employees will continue to work, they will do so without pay. Agencies will furlough many more.
Each agency creates a contingency plan that says how it plans to respond to a potential shutdown. As the American Federation of Government Employees (AFGE) notes on its shutdown overview:
The Social Security Administration would furlough 8,500 employees and demand that 52,000 excepted employees continue to work without pay.
The Department of Defense would furlough 440,000 civilian employees and except 199,000. Another 166,000 receive funding outside of annual appropriations. They would work and get paid as usual.
NASA would furlough 17,000 employees and except 1,300.
Meanwhile, the interruption of government services would have repercussions beyond federal paychecks. Some have claimed that the disruption caused by a shutdown could negatively affect the entire United States economy. It could also interfere with our international relations and defense efforts.
What are my rights during a shutdown?
The main question for most federal employees during a shutdown is, “When will I get paid?” The answer is, “After the shutdown ends.”
Thanks to the Government Employee Fair Treatment Act of 2019, the nation has a legal duty to repay excepted and furloughed employees for the work they performed or missed during a shutdown.
Repayment is based upon the employees’ standard rate of pay.
The law requires repayment at the “earliest date possible […] regardless of scheduled pay dates.”
Meanwhile, excepted employees may continue to use their approved leave during a shutdown. Or, if they wish, agencies may choose to place those employees on furlough during the periods of their approved leave.
Furloughed employees may file for unemployment benefits per their states’ guidelines. If employees receive unemployment, they will need to follow state and federal guidelines for repaying those funds once they receive their backpay.
Let’s hope Congress gets its act together
Only time will tell if Congress can meet its new budget deadline. Or the budget deadline after that. Our nation remains sharply divided along political lines. History teaches us that those divisions lead to shutdowns roughly once every four years.
Hopefully, this time, we will be spared the theatrics and threat of a shutdown. We want our leaders to learn from this near miss and find a better way forward. We expect better from our nation’s lawmakers, and our nation’s federal workforce deserves better.]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2561732023-09-29T21:02:05Z2023-09-29T21:02:05Zth anniversary of the Rehabilitation Act of 1973. This landmark act paved the way for more workers with disabilities to enter the federal government.
The act supports workers with disabilities in two key ways. It restricts discriminatory actions by federal agencies and contractors. It also forces employers to make reasonable accommodations.
When are accommodations reasonable?
The exact nature of a “reasonable” accommodation may vary, but several broader concepts remain consistent. Accommodations are “adjustments” or “modifications” that:
Reduce discrimination in hiring, firing, pay, work opportunities and career advancement
Help employees with disabilities enjoy the same opportunities as their coworkers
Reduce discrimination in other work restrictions and privileges
Remember, accommodations do not have to be physical in nature. You might also request:
Job duty updates
Scheduling alterations
Changes to company policies
New equipment or software
It is often reasonable for job applicants to request a translator.
Note that accommodations may not be “reasonable” if they would place an “undue hardship” on the employer. But the definition of undue hardship changes from case to case. The EEOC looks at several factors:
The difficulty or expense imposed by the accommodations
The employer’s size and finances
The nature of the employer’s operations
The employer’s business structure
The simple truth is this: If you believe you need accommodation, you have every right to pursue it.
What do employers need to know?
Many applicants and employees wonder if they must disclose their disabilities. If you do not need an accommodation, the answer is, “No.” You do not need to disclose your disability.
However, employers only need to make accommodations to help employees who have disabilities. If you need an accommodation, you need to explain why. In this case, you must disclose your disability.
This may be a cause for stress, but it doesn’t have to be. The law protects you from retaliatory actions. And thanks to the Rehabilitation Act, your employer should help you with any reasonable request.]]>On Behalf of The Devadoss Law Firm, P.L.L.C.https://www.fedemploymentlaw.com/?p=2560942023-08-13T04:29:03Z2023-08-13T04:29:03ZPresident Biden’s stance
The president intends for in-office work to become the norm again for federal employees. According to an informative article in Federal Times, he stated in the State of the Union that the “vast majority” of federal workers will return to the physical office, followed with Office of Management and Budget (OMB) instructions to agencies to make plans for this to ramp up in September and October.
Reportedly, pressure is on to increase federal office space (owned and leased) utilization because of its high cost to taxpayers. For example, Axios cites a new Government Accountability Office (GAO) report that of the 24 agencies, 17 of them are using in headquarters buildings an average of about one-quarter of their capacity.
Congress is also weighing in. The SHOW UP Act has passed the House, but not the Senate. Called – amazingly – The Stopping Home Office Work’s Unproductive Problems Act (H.R. 139, S. 1565), this legislation if passed would require all agencies to revert to pre-Pandemic telework practices, including the numbers of employees then allowed to work remotely.
Unions speak out
These return-to-work issues are nowhere near settled. Federal Times reports that 900,000 federal employees are union members. Those unions are saying that remote scheduling should be controlled by employment contracts reached through the collective bargaining process – not determined unilaterally by the executive branch.
Reportedly, the National Treasury Employees Union (NTEU) has negotiated some new hybrid telework rules since the end of the pandemic. Federal Times cites the NTEU president as pointing out that telework is nothing new but has been part of federal employment in some form “for many years” with agency support. He believes that the prepandemic collective bargaining agreements that contain remote work provisions are still valid and modifications should require new negotiations.
Takeaway
Any federal employee or union representative facing questions about remote work rules and policies should speak with an experienced federal employment lawyer for information and guidance. Employee advocates will monitor with interest how this potential dispute evolves.]]>