Congressional Accountability Act
The Congressional Accountability Act (CAA) extends coverage of several federal labor and employment protections to over 30,000 employees of the legislative branch, including employees of the House of Representatives, the Senate, and the Architect of the Capitol. The CAA applies thirteen civil rights, labor, and workplace safety laws to legislative branch employees, including: OSHA (Occupational Safety and Health Act of 1970); Federal Labor Relations Act; federal laws prohibiting discrimination and harassment based on race, sex, color, national origin, disability, pregnancy, genetic discrimination, and age; federal laws prohibiting discrimination based on military service or veterans’ status; federal overtime pay laws under the Fair Labor Standards Act; and the right to family medical leave under the Family Medical Leave Act. The CAA does not extend protections for whistleblower reprisal to legislative branch employees. However, employees may still be able to bring claims if they have been retaliated against for activity protected under other provisions of the CAA, such as reporting a health and safety violation, raising a claim of discrimination, objecting to sexual harassment, requesting accommodations for disabilities, or requesting or taking FMLA leave.
The Congressional Office of Compliance (OOC) is an independent office charged with administering and enforcing the CAA. In order to pursue a claim under many of the provisions of the CAA, including claims of discrimination or harassment, employees must go through a mandatory multi-stage dispute resolution process through the Office of Compliance. Employees do have the right to designate a representative at any time during the process. The procedures for pursuing claims under the CAA can often be convoluted and confusing.
In general, legislative branch employees must initiate a claim under the CAA by filing a written request for counseling with the OOC within 180 days of the violation. The OOC will then conduct a formal 30-day counseling period, where an OOC counselor will discuss the claim and inform the employee of rights under the law. It is important that during the counseling phase, the employee or applicant identify each event and action the agency took which was discriminatory or retaliatory.
If the employee wants to continue with his or her claim after the end of the counseling period, the next stage in complaint processing is a mandatory 30-day mediation period. The complainant must file a written request for mediation within 15 calendar days of receiving notification that the counseling period has ended. The complainant must ensure that the OOC receives the written request on or before the 15th day, before 5:00p.m. Eastern Time. A complainant should file in such a way that he or she can prove timely filing, for example, by hand-delivering the claim and obtaining a copy of the claim stamped as received by the OOC, by certified mail, or via fax with the fax confirmation. In mediation, the OOC will appoint a mediator to meet with the parties, either together or separately, to explore the issues and potential resolutions. While participation in mediation is mandatory under the CAA, mediated settlements are always voluntary – a mediator cannot require either party to agree to a settlement nor can a mediator issue a decision.
If mediation is unsuccessful, a complainant has ninety days to elect one of two options for pursing their claim: requesting an administrative hearing before a hearing officer or filing a law suit in federal district court.
- Hearing before a hearing officer. Under this path, the complainant will file a formal complaint and the OOC will appoint a neutral hearing officer. The complainant can be represented by an attorney, request to engage in discovery (e.g., demand documents, data and evidence and can force federal employees to participate depositions), and present evidence and testimony at a hearing. The process moves relatively swiftly – a hearing officer will normally open a hearing within 60 days after a complaint is filed and will issue a decision within 90 days after a hearing is complete. The hearing officer will issue a decision on whether the employing office discriminated or retaliated against the complainant and, if so, what relief is appropriate. Once the hearing officer issues a decision, either the complainant or the employing office has 30 days to appeal the decision to the Board of Directors of the OOC. The Board’s review is limited and does not include reweighing of the evidence or making factual findings. If the employee or employing office is not satisfied with the Board’s decision, they can file a limited appeal with the U.S. Court of Appeals for the Federal Circuit.
- Federal court law suit. The other option is to file a complaint in federal court. In most cases the complainant may demand a jury trial. Once a complainant chooses to pursue his or her claims in court, she or he may no longer seek a hearing before a hearing officer. The relief available in court is the same as the relief available through a hearing examiner.
Our attorneys have invaluable experience representing legislative branch employees and unions in claims under the CAA, including claims involving discrimination, sexual harassment, overtime pay, FMLA violations, failures to accommodate, unequal pay, arbitrations under Collective Bargaining Agreements, and health and safety violations.
Our goal is to ensure that you have the information you need to make effective, well-informed decisions about how to protect and enforce your rights. We can talk with you about your unique situation and evaluate whether you have a viable claim under the CAA. We can recommend strategies for presenting the most important evidence. We will evaluate the value of your case and what you might recover if you are successful in your claims. Our attorneys are committed to giving you information and tools to make a strong case and smart decisions.
If you are a legislative branch employee and think you have been discriminated against by your employing office, contact us.
Discrimination in Federal Sector
Federal employees – just like employees in private industry – have a right to be free from discrimination and illegal harassment in the workplace. Federal employees must follow special procedures and rules, however, which are governed by the EEOC.
The EEOC’s federal sector program is designed to provide federal employees and applicants with an administrative avenue for pursuing discrimination claims against the federal government – without having to dive into federal court. The EEOC’s federal sector program is less formal than a judicial process, but provides equal relief, which may include damages for lost earnings or other calculable harms, compensation for non-calculable harms like emotional distress and damage to career, reimbursement of leave used because of the discrimination, and attorney fees for successful claims (except in age-based cases).
As a general rule, most federal employees must initiate their discrimination claims within forty-five (45) days of the most recent discriminatory event. In contrast, in the private sector, employees have 180 days and often times up to 300 days. The “45-day rule” has some exceptions and does not apply in all cases. (The laws relating to Congressional employees are different and are covered by the Congressional Accountability Act.) An employee is allowed to have an attorney representative throughout the EEO process.
To start a discrimination complaint, a federal employee or applicant (or his or her attorney) should contact his or her agency’s EEO office. The EEO office will conduct an in-take session and a 30-day counseling period. An EEO counselor or specialist may gather information and try to resolve the case. It is important that during the counseling phase, the employee or applicant identify each event and action the agency took which was discriminatory or retaliatory.
The EEO office is responsible for issuing to the employee – who is now a “complainant” – a notice of right to file a formal complaint. The complainant must file the complaint with the appropriate agency office, identified in the notice, within 15 calendar (not work) days. The complainant must ensure that the EEO office receives the complaint on or before the 15th day or, alternatively, that the complaint is post-marked on or before the 15th day. To ensure that the complaint is properly filed, the complainant should file in such a way that he or she can later prove timely filing, such as certified mail or fax with fax confirmation.
After the complainant files the complaint, the EEO office should issue a letter acknowledging the complaint and then another letter accepting and/or dismissing claims identified in the complaint. A complaint can include more than one claim, such as an allegation of a non-promotion and an allegation that the agency failed to provide accommodations for a known medical condition. Assuming the agency accepts at least one claim for investigation, the agency will then investigate the claim. The agency is required to complete its investigation within 180 days (assuming the complainant does not amend the complaint). The agency is not, however, required to use any particular methods for investigating, but must ensure that the resulting investigative report is sufficiently detailed to allow “a reasonable fact finder to draw conclusions as to whether discrimination occurred.”
The agency is required to provide the complainant with a copy of the Report of Investigation (ROI) with a notice of “election of remedies.” The election of remedies notifies the complainant that he or she may choose one of three options: a final agency decision; a hearing before an EEOC administrative judge; or a trial in federal court.
- Request a final agency decision. Under this avenue, the agency will review the ROI and determine whether the Agency illegally discriminated against the complainant. If a complainant chooses this route, he or she may not later seek a hearing before an EEOC administrative judge. Upon receipt of the final agency decision, the complainant may appeal the decision to the EEOC’s Office of Federal Operations or seek a trial in federal district court.
- Hearing before an EEOC administrative judge. Under this path, the complainant can be represented by an attorney and can engage in discovery (demand documents, data and evidence and conduct depositions of federal employees). An EEOC administrative judge decides whether the agency discriminated or retaliated against the complainant and, if so, what relief is appropriate. The administrative judge issues an order and then the agency issues a “final agency decision” either implementing the judge’s order or appealing it. If the complainant disagrees with the final agency decision, the complainant may appeal to the EEOC and/or pursue the case in a trial in federal court.
- File a complaint in federal court. The complainant can skip the above options and demand a trial in federal court. Once a complainant chooses to pursue his or her claims in court, he may no longer seek a hearing before an administrative judge. The relief available in court is the same as the relief available through an administrative judge.
Our attorneys have invaluable experience in representing federal employees through the federal sector EEO process. We confirm that the informal counseling identifies all the possible claims and we take steps to ensure that the agency effectively investigates the claims. When an agency fails to meet its obligations to investigate timely and fully, we take aggressive action to seek sanctions from the assigned EEOC administrative judge.
If you think you have been discriminated against by your federal agency, contact us. Our goal is to ensure that you have the information you need to make effective, well-informed decisions about how to protect and enforce your rights. We can talk with you about your unique situation and evaluate whether you have a viable discrimination or EEO retaliation claim. We can recommend strategies for presenting the most important evidence. We will evaluate the value of your case and what you might recover if you are successful in your claims. Our attorneys are committed to giving you information and tools to make a strong case, whether you’re alleging sexual harassment or a failure to accommodate a medical condition.
Discipline and Other Adverse Actions in Federal Sector
Federal employees enjoy rights and protections that most types of employees do not. Most federal agencies must follow specific laws when they discipline employees for misconduct or poor performance. In this case, “discipline” means that an agency takes a personnel action against an employee, such as suspensions without pay, terminations (i.e., removals, firings), reductions in grade or pay, or furloughs. The Merit Systems Protection Board (MSPB) is an independent agency charged with, among other things, ensuring that federal agencies follow the law when they discipline their employees.
If you work for an executive agency and meet certain qualifications (e.g., you are not a probationary employee), you probably have valuable rights. You can challenge discipline before it happens. Your agency must notify you that it intends to discipline you and it must explain why. You are allowed to review the evidence the agency relies on for the proposed adverse action. You can also have an attorney represent you and respond to the proposal on your behalf and with you.
If an agency suspends you for more than 14 days, fires you, furloughs you or reduces your grade or pay, you can challenge the discipline through several different avenues – you can appeal to the Merit Systems Protection Board (MSPB), you can allege discrimination through a complaint within your own agency, you can file with the Office of the Special Counsel (OSC) if your case concerns whistleblowing or a prohibited personnel practice, or you can file a union grievance 0 if you’re covered by a collective bargaining agreement.
Each of these possible avenues has significant ramifications for your case. Choosing the right path is critical because once you choose one, you generally cannot go back and choose a different path. If you choose the wrong path, you can lose valuable rights and leverage. To fully understand which option is right for you, you should speak with an attorney who has particularized knowledge of the rights and remedies available to federal employees.
When an employee appeals a personnel action to the MSPB, the Board will consider several issues, including whether your agency has proven that you engaged in the misconduct as alleged and whether the penalty issued was reasonable.
When it comes to issuing reasonable penalties, the agency has to consider twelve (12) factors, called the Douglas Factors.
- The seriousness of the offense;
- The employee’s position, including fiduciary or supervisory role;
- The employee’s past disciplinary record;
- The effect of the offense on the employee’s ability to perform satisfactorily or upon a supervisor’s confidence in the employee’s ability to perform;
- The employee’s past work record, including length of service, job performance, and dependability;
- The consistency of the penalty with those imposed in other similar situations;
- The consistency of the penalty with the agency’s table of penalties;
- The notoriety of the offense;
- The clarity with which the employee was on notice of rules or policies allegedly violated;
- The employee’s potential for rehabilitation and to learn from his or her mistakes;
- Mitigating circumstances, such as unusual job tensions, personality problems, bad faith, or malice;
- The adequacy of alternative sanctions to deter future misconduct.
At ALG, we work hard to stop the discipline before it happens. Most federal employees have the right to receive advance notice of any proposed discipline before a decision has been made and to respond to the notice of proposed discipline. Providing a strong, well-organized, and supported response at the proposal stage is often critical and can save your job or result in a significantly reduced penalty. Our attorneys have years of experience representing federal employees in the pre-discipline phase. We coordinate with our clients to present strong cases before discipline happens in an effort to convince the agency that the proposed discipline is either not supported by the evidence, too harsh under the circumstances, and/or motivated by unlawful considerations.
If an agency issues discipline against an employee, most federal employees can file an appeal with the MSPB challenging the discipline. Our attorneys have extensive practice representing employees before the Board. At the MSPB, we can also allege that the discipline was the result of discrimination, retaliation, or a prohibited personnel practice. If the MSPB finds that the adverse action was unlawful, relief can include back pay and benefits and restoration of terminated employees.
If you are a federal employee facing disciplinary or adverse action and want to know your rights, contact us. Our attorneys are committed to giving your information and tools to make a strong case, whether you’re facing a proposal or considering your appeal options. During an initial consultation, we can discover the reasons for the discipline and explore if there are other reasons that may be illegal (such as discrimination and reprisal). We can also help you choose the best path for you to challenge the discipline and make sure you don’t make any mistakes as you navigate through the different administrative procedures and options. We can identify your legal options, weigh the strengths and weaknesses of your claims, and help you make an informed decision on how to pursue your claims. We can talk about recovering attorney fees and whether you might be eligible for compensation for emotional harm and damage to your reputation and career.
Foreign Service Officers
ALG’s attorneys are well versed in the laws that apply to Foreign Service Officers (FSOs) and the role of the American Foreign Service Association. We represent FSOs in the U.S. and abroad with the various foreign service agencies, such as:
- U.S. Department of State
- U.S. Agency for International Development
- U.S. Department of Agriculture agencies, including Foreign Agriculture Service and Animal and Plant Health Inspection Service
- International Broadcasting Bureau and Voice of America
- Peace Corps
- Foreign Commercial Service
We help FSOs in issues specific to them, such as grievances before the Foreign Service Grievance Board, medical clearance reviews, Diplomatic Security background investigations and appeals, EEO investigations and hearings, security clearances, Inspector General investigations, and more.
If you are a Foreign Service Officer and need help with a job-related problem, contact us.
The U.S. Office of Government Ethics (OGE) is tasked with fostering high ethical standards for executive branch employees and strengthening the public’s confidence that the government’s business is conducted with impartiality and integrity. The OGE promulgates rules and regulations that govern standards of ethical conduct for civilian employees throughout the government, maintains a financial disclosure system, and oversees ethics programs in Executive Branch agencies. Generally speaking, each agency has its own ethics office and issues rules implementing OGE regulations and guidance.
The conduct of executive branch employees is governed by criminal and civil statutes and an administrative code of conduct. OGE and Agency ethics rules cover topics such as:
- Financial conflicts of interest and impartiality
- Gifts and payments
- Use of government position and resources
- Outside employment and activities
- Post government employment
These ethical laws also address bribery, illegal gratuities and criminal conflicts of interest. Most relevant to many of our clients are the rules and regulations governing employment after leaving the government and navigating the transition from federal to private sector employment
Ethical considerations often arise when an individual leaves federal employment to work for a government contractor. Oftentimes, the departing federal employee is prohibited from working on matters they worked on while employed for the government. Depending on the nature of the individual’s role, post-employment restrictions may be permanent or temporary. OGE regulations also restrict the types of communications and appearances an individual may have with the federal government after she joins the private sector if those communications are made with the intent to influence the government. In some circumstances, an individual may be restricted to working only “behind the scenes” in her company’s dealings with the government. These various rules can sometimes present complex questions for departing or former federal employees, and seeking advice of an experienced attorney before engaging in potentially restricted activities can be invaluable in such situations.
OGE does not enforce ethical standards. When ethics officials have information concerning a possible violation of a criminal statute, the employing/hiring/former agency coordinates with its office of Inspector General (or similar investigative unit), to investigate the matter and refer violations to the appropriate authority. A federal ethical violation may result in a criminal prosecution, corrective action, penalties and fines, or discipline against a federal employee.
If you need help navigating the complex federal ethical guidelines, talk with an experienced attorney who can guide you through this process. During an initial consultation, we can evaluate whether you may face employment restrictions, what those restrictions might be, and how to protect yourself.
Agency Internal Grievance Systems
If you are an aggrieved federal agency employee, one option you may have is to file an administrative, or internal agency, grievance. These grievances are typically available for issues that cannot be resolved through other formal processes such as EEO complaints or adverse action appeals. An agency’s internal grievance process should not be confused with labor grievances filed under a union contract or collective bargaining agreement.
During the administrative grievance process, your agency will internally review your concerns and may attempt to resolve them. The options for relief are modest – generally the agency can only provide equitable relief, but not damages or attorney fees.
Contact us for an initial consultation so our attorneys can guide you through your options for filing an administrative grievance and ensure that you are utilizing the best grievance procedures available to you in the most effective way possible.
ALG represents clients who work for intelligence agencies, such as:
- Federal Bureau of Investigation (FBI)
- Central Intelligence Agency (CIA)
- Office of the Director of National Intelligence (ODNI)
- National Security Agency (NSA)
- Department of Defense intelligence agencies (NGA, NRO, AFISRA, INSCOM, ONI)
- Drug Enforcement Administration, Office of National Security Intelligence (DEA/ONSI)
Employees of these agencies do not typically have MSPB appeal rights or whistleblowing rights under the Whistleblowers Protection Enhancement Act. However, employees of these agencies still have rights.
Employees of intelligence agencies may have MSPB appeal rights if they are “preference eligible veterans” or if they are covered by certain grandfathering provisions. These employees also have the right to be free from discrimination in the workplace.
Additionally, employees of some of these agencies have protections designed specifically for their agency. For example, the Department of Defense OIG has special procedures for DoD intelligence community employees who are facing whistleblowing retaliation or may be facing retaliation in the processing of their security clearance. Additionally, the FBI has its own whistleblowing statute and administrative process for pursuing claims of whistleblower protections. Moreover, the anti-discrimination laws apply to all of these agencies.
Our attorneys are specially trained in the procedures and policies that apply to agencies in the intelligence community and their employees. If you are employed by one of these agencies and feel that your job is at risk, contact us to discuss your legal rights.
Federal Sector Labor Unions
Many federal employees are represented by unions and are protected by federal labor laws. ALG attorneys are well-versed in the complexities of federal sector labor laws and can help union officials and members understand those often complex laws.
Federal sector unions must navigate an array of overlapping issues and governing laws and agencies. Unions are expected to represent their bargaining units through negotiations and collective bargaining and by representing employees in disciplinary matters, grievances and grievance arbitrations, and unfair labor practices. For many of these issues, especially grievance arbitrations, having the assistance of a team of experienced attorney advocates is invaluable.
ALG has represented or assisted unions in forums including:
- Federal Labor Relations Authority (FLRA)
- Federal Mediation and Conciliation Service (FMCS)
- Federal Service Impasse Panel (FSIP)
- Office of Congressional Compliance
ALG has assisted unions and unionized workers with numerous issues, including but not limited to:
- Bargaining unit election and clarification petitions,
- Negotiations, collective bargaining, and impasse resolution,
- Negotiability determinations,
- Requests for information,
- Disciplinary actions,
- Discrimination and retaliation claims,
- Grievances and grievance arbitrations,
- Unfair labor practices,
- Trainings for Union officers, stewards, and members
If you need assistance or guidance on a federal sector union matter or are interested in a workshop or training on federal sector labor law and union issues, contact us. Our goal is to assist unions and their members by providing the information and tools needed to bargain with management, pursue elections, grievances, and unfair labor practices, and to strengthen unions’ understandings of their labor rights and obligations.
Law Enforcement in Federal Sector
ALG represents law enforcement officers (LOEs) and “1811’s” who work for federal law enforcement agencies. At least 65 federal agencies have LEOs, including:
- Federal Bureau of Investigation (FBI)
- Department of Justice (DOJ)
- Drug Enforcement Administration (DEA)
- Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
- Department of Homeland Security (DHS)
- Federal Bureau of Prisons (BOP)
- U.S. Customs and Border Protection (CBP)
- U.S. Immigration and Customs Enforcement (ICE)
- U.S. Marshalls Service (USMS)
- U.S. Secret Service
If you’re a LEO, you know that the rules are a little different for you than for other federal employees. LEOs are held to different standards. You undergo periodic fitness-for-duty (FFD) examinations. You have to re-qualify for your position. You might be subject to Office of Professional Responsibility investigations. LEOs also have specialized concerns related to disability or medical conditions and the ability to perform physical duties in the field or unique issues related to disciplinary matters. LEOs also have specialized concerns relating to benefits, such as overtime/availability pay and LEO retirement.
Our attorneys are specially trained in procedures and policies that apply to law enforcement officers. If you are in federal law enforcement and feel that your job is at risk, contact us to discuss your legal rights.
Inspector General and OPR Investigations
There are more than 73 Offices of the Inspector General (OIG) in the federal government. The OIGs are charged with investigating and auditing to uncover waste, fraud, abuse, and mismanagement. OIG can investigate federal employees for misconduct, and ethical and criminal violations, but OIGs can also investigate government contractors and recipients of government loans or grants. In short, the OIG’s jurisdiction is criminal, civil, and administrative.
OIG investigates using criminal investigators, administrative investigators, law enforcement officers, special agents, auditors, and other investigative staff. OIG agents have authority to carry firearms, to arrest, and to execute search warrants. Following an investigation, the OIG may refer allegations to the U.S. Department of Justice for criminal prosecution and/or to management for disciplinary action.
Many federal agencies also have an Office of Professional Responsibility (OPR). OPRs investigate employees who have been accused of misconduct or crimes in executing their professional functions.
Getting a call from your OIG or OPR can be a terrifying event. You have to be concerned about criminal charges as well as administrative disciplinary charges, such as suspension or removal from your job.
When conducting an investigation, investigators should identify themselves and present their credentials. They do not have to tell you if you are the target of the investigation or what the interview is about. OIG / OPR investigators have to give you warnings about the statement you make during the investigative interview. The type of warning you get might help you understand the kind of investigation that’s going on and whether you are a target of the investigation.
- Kalkines warnings. A Kalkines warning advises the employee that they are required to participate in the IG / OPR investigation and failure to participate may result in administrative disciplinary action. The Kalkines warning should also inform the employee that the employee’s answers during the investigation cannot be used against them in a criminal proceeding, unless the employee commits perjury.
- Garrity warnings. Garrity warnings apply when the IG / OPR interview may result in both criminal and administrative consequences and should inform you that your cooperation is voluntary. A Garrity warning advises the employee that they do not have to answer questions that might implicate them in a crime and that the employee will not be administratively disciplined if they decline to cooperate. If an employee agrees to participate in an interview after receiving a Garrity warning, the employee’s statement may be used against them in a criminal, civil or administrative proceeding.
- Weingarten warnings. Weingarten warnings apply if the employee is a bargaining unit employee. Individuals covered by a bargaining unit are entitled to union representation during interviews if disciplinary action might result. However, the agency has no obligation to inform the employee that s/he is entitled to union representation.
- Miranda warnings. Miranda warnings are given when an individual is arrested or similarly detained. The Miranda warning advises that the witness/employee has the right not to answer questions, that anything said may be used against them in a criminal proceeding, that they have the right to not incriminate themselves and the right to an attorney.
If you believe there is an on-going investigation about you, or if you have been asked to participate in an investigation, contact us immediately, as you may not have much time to prepare for the interview. If an investigation proceeds to proposed disciplinary action, we can help you respond to the proposal and file an appropriate appeal.
For more information about your rights during an OIG investigation and how to protect yourself, contact us.
Union Grievances in Federal Sector
You might be in a bargaining unit, or covered by a union contract, but what does that really mean? What can your union do for you? Maybe a lot.
If you are facing discipline or an investigation, your union can be there with you, every step of the way. One of your most valuable union rights might be the right to file a grievance under the union contract. You may utilize the negotiated grievance procedure on your own or with the help of a union official. If the grievance is not satisfactorily resolved, the union can opt to arbitrate your dispute with your agency. During the arbitration process, both parties argue their respective positions regarding the dispute to a neutral third party, the arbitrator. Eventually, the arbitrator renders a binding decision. It is important to remember that the union may invoke arbitration regarding your dispute with your agency employer, but it is not required to. You should keep this in mind when filing your initial grievance as filing the grievance will typically prevent you from utilizing another procedure to address your dispute with your agency employer.
For example, an agency may suspend an employee for 15 days, but the employee thinks the suspension is fundamentally wrong and, in addition, is rooted in reprisal for her protected whistleblowing activity. This employee probably has three ways to challenge the suspension: a) through the union agreement; b) through an appeal directly with the MSPB; or c) by filing a whistleblowing reprisal complaint with the OSC. Even though the employee has three options, she can choose only one.
The law is confusing and understanding the pro’s and con’s of each option can be overwhelming. If you find yourself wondering which path to take, talk with our experienced attorneys. We have been representing federal employees for decades and understand the confusing and complex procedures that apply exclusively to federal employees. Contact us for an initial consultation.
With on-going discussion of anticipated government downsizing, you may be considering your options and those options may include retirement and voluntary “VERA/VSIP” buyouts. You may also wonder what happens if there is a reduction in force, or “RIF”.
Agencies seeking to reduce their workforce may offer some employees incentives, called VERA or VSIP, to voluntarily leave the government so the agency can minimize or avoid involuntary separations through RIFs – reductions in force. Executive branch agencies can seek approval from OPM to offer VERA/VSIP in an effort to reduce the federal workforce in the event of agency restructuring or government downsizing. Some agencies, such as the Department of Defense have been granted agency-specific VERA authority and do not have to obtain OPM approval to use this option.
Under Voluntary Early Retirement Authority – VERA - an employee may retire early if they meet the general eligibility requirements. The employee must:
- Meet the minimum age and service requirements -
- At least age 50 with at least 20 years creditable federal service, OR
- Any age with at least 25 years creditable federal service;
- Have served in a position covered by the OPM authorization for the minimum time specified by OPM (usually 30 days prior to the date of the agency request);
- Serve in a position covered by the agency's VERA plan; and
- Separate by the close of the early-out period.
Before accepting a VERA offer, you should ask your agency’s personnel or retirement office for an estimate of your retirement benefits so you know what to expect. Ask for estimates under VERA and also under regular retirement, so you can make an informed decision.
VSIP is a buy-out plan where agencies are allowed to give employees up to $25,000 as an incentive to voluntarily separate, either by retirement or resignation. This figure may go up soon. To be eligible, the employee must be in a designated surplus position or have skills no longer needed. The employee must:
- Be serving in an appointment without time limit;
- Be continuously employed by the Executive Branch for at least 3 years;
- Be serving in a position covered by an agency VSIP plan (i.e., in the specific geographic area, organization, series and grade);
- Apply for and receive approval for a VSIP from the agency making the VSIP offer; and
- Not be covered by the seven categories of ineligibilities. (You can find these on the OPM VSIP page)
There are some additional specific provisions applicable to VERA and VSIP for DoD employees (you can find more in the DoD guidance).
Whistleblowing in Federal Sector
In 2012, Congress enacted the Whistleblower Protection Enhancement Act (WPEA). The WPEA clarifies and significantly expands the rights of most federal employees under prior law.
Protected whistleblowing happens when a federal employee or applicant discovers and reports something which they reasonably believe is:
- a violation of law, rule or regulation;
- gross waste;
- gross mismanagement;
- gross waste of funds;
- abuse of authority; or
- a substantial and specific danger to public health or safety.
Your agency may not take, recommend, order or threaten a personnel action against you because you made a protected whistleblowing disclosure. The following are personnel actions that are covered by the law:
- selection for a federal job;
- a promotion;
- discipline such as suspension, removal, demotion in grade or pay;
- a detail, transfer, or reassignment;
- a reinstatement;
- a restoration;
- a re-employment;
- a performance evaluation;
- a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this sub-paragraph;
- a decision to order psychiatric testing or examination; and
- any other significant change in duties, responsibilities, or working conditions.
If we can prove a connection between your whistleblowing and a personnel action, you may be entitled to relief. Relief includes restoration or reinstatement to a prior job; back pay with benefits and interest; recoupment of other losses, such as used leave and medical costs; and attorney fees. Significantly, for the first time under the new law, federal employees may now recover compensatory damages for emotional pain and suffering.
An individual could have several options for pursuing a whistleblowing claim: filing a complaint with the Office of the Special Counsel; filing as a related claim in an appeal to the Merit Systems Protection Board; or filing a grievance under a collective bargaining agreement. Each path has its own pros and cons and once you select one option, you cannot change your mind. If you have the option to appeal directly to the MSPB, but you don’t, you may lose valuable leverage and be put at a legal disadvantage.
If you are a federal employee suffering whistleblowing retaliation and want to know your rights, contact us. Our attorneys are committed to giving you the information and tools you need to choose the right path for your case, to maximize your leverage as you try to save your job and career, and to persuasively present your case to the right federal authorities to preserve and protect your rights. During an initial consultation, we can evaluate whether you may have a whistleblowing retaliation claim. We can advise you how to pursue your claim, identify deadlines, and represent you in the appropriate procedure.