Continue reading »]]> In Thompson v. North American Stainless, LP, the Supreme Court held that an employee who claims he was fired in retaliation for his fiancé’s complaint of sex harassment had an actionable retaliation claim under Title VII. According to the Supreme Court’s 2010 decision, it is an unlawful employment practice under Title VII to terminate an employee’s “close family member” in retaliation for her engaging in protected activity, such as filing a charge of discrimination with the EEOC. This type of claim has been characterized as retaliation by association, since the person being retaliated against is closely associated to the person who engaged in protected EEO activity. Often employers retaliated against the person who engaged in protected activity, but in Thompson a woman filed a sex discrimination charge with the EEOC and three weeks later the employer terminated the woman’s fiancé, who also was employed by the company. The fiancé filed his own EEOC charge and filed a lawsuit, alleging that his termination was in retaliation for his fiancé’s EEOC charge. The trial court dismissed the fiancé’s case, holding that there was no cause of action under Title VII for retaliation against associated third-parties. That decision was upheld by the Sixth Circuit’s en banc decision, but the Supreme Court reversed, reasoning that Title VII’s anti-retaliation provisions were intended to protect against any employer action that could dissuade a reasonable worker from making or supporting a charge of discrimination. The Court emphasized that this is an objective standard and stated that it was “obvious” a worker might be dissuaded from making or supporting a complaint of discrimination if she knew that her fiancé might be terminated in retaliation for making or supporting a complaint of discrimination. The Court warned that retaliation against a mere acquaintance would not meet this standard but declined to identify which types of relationships would. If the person retaliated against was not a close family member, but say just “a friend”, then the viability of the claim would depend on whether the evidence showed that the plaintiff was in the “zone of interest.”

If you have been retaliated against by your employer for engaging in EEO protected activity, contact Denver Employment Attorney Gregory A. Hall at 303-320-0584.

Continue reading »]]> In Colorado, C.R.S. § 8-2-113 governs non-compete agreements.  The statute precludes non-compete or non-solicitation agreements except for certain exceptions.  Otherwise stated, most non-compete agreements are void and unenforceable in Colorado, unless the non-compete agreement concerns trade secrets; reimbursement of training costs; the sale of a business; or agreements with executive or management personnel.  The exception for the protection of trade secrets is broad enough that it can cover a lot of circumstances. In addition, solicitation of customers might constitute a trade secret violation under the Colorado Uniform Trade Secrets Act. Even if the agreement fits into one of the statutory exceptions, to be enforceable, there must be sufficient consideration and the non-compete clause must be reasonable in duration and geographic scope.  If you have questions about the legal validity of a Colorado non-compete agreement, contact Denver Employment Lawyer Gregory A. Hall at 303-320-0584 to schedule an appointment. Attorney Hall has handled employment cases since 1995.

Continue reading »]]> Denver Employment Attorney Gregory A. Hall represents plaintiffs who have claims against their employers for discrimination, harassment, equal pay act, overtime (FLSA), non-payment of wages, breach of contract, and wrongful discharge in violation of public policy. Mr. Hall has successfully litigated tort actions against employers as well. As co-counsel, Mr. Hall secured a million dollar jury verdict in Jessen v. BLM, one of the largest Title VII verdicts in Wyoming. (Wyoming Federal District Court, Case No. CV-97-289-J). In addition to employment law, the Mr. Hall also handles personal injury cases. If you retain Mr. Hall, he will work to help you get what you deserve on your case.  Contact him with questions about your case.

Continue reading »]]> What is insurance bad faith?

Insurance bad faith is a legal term, which means that an insurance company has acted unreasonably or unfairly in the payment of a claim.  Under the Unfair Claims Settlement Practices Act in Colorado, insurance companies are required to act in good faith by following these practices:

• The insurance company must acknowledge your claim.
• The insurance company must act promptly in response to your communications.
• The insurance company must investigate your claim promptly.
• The insurance company must not delay the process with extra forms.
• The insurance company must provide plausible reason for delays or non-payment.
• The insurance company must evaluate your claim fairly.
• The insurance company cannot deny your claim without giving a valid reason.

If you’re having difficulty getting a claim paid by your insurance company, then you may need legal counsel. Be especially concerned if the insurance company explains its denial of coverage by relying on an obscure passage in your policy, hoping that you may not understand the full extent of your coverage. The Law Office of Gregory A. Hall has dealt with many insurance companies, and understands the complicated language found in most insurance policies.  Denver Lawyer Gregory Hall can help determine what events your policy covers and the amount your insurance company owes you.

If you have an insurance policy and you believe it covers an event, then to determine if you are entitled to the insurance benefits as set forth in policy you should begin by reviewing your policy.  If you don’t have a copy of your policy, then write your insurance company and request a complete copy of your policy, as well as a copy of your file.  If after reviewing the policy you’re convinced that your claim is legitimate and your insurance company has unreasonably refused to pay the claim, or has unreasonably delayed payment, you should contact the Law Office of Gregory A. Hall at 303-320-0584 for assistance.

If you’re having trouble getting a claim paid, you should not delay in seeking legal counsel at:   http://www.adenverpersonalinjuryattorney.com/

Gregory A. Hall
A Colorado Personal Injury Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Continue reading »]]> What are the Merit System Principles?

The Merit System Principles are nine basic standards governing the management of the executive branch workforce. The principles are part of the Civil Service Reform Act of 1978, and can be found at 5 U.S.C. § 2301(b).  The MSPB recently studied workforce data and Federal employee perceptions of their treatment and issued a report to the President and Congress entitled Fair and Equitable Treatment: Progress Made and Challenges Remaining. You can find this report at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=472678&version=473953&application=ACROBAT

The Merit System Principles (5 USC § 2301)

1. Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge and skills, after fair and open competition which assures that all receive equal opportunity.
2. All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
3. Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
4. All employees should maintain high standards of integrity, conduct, and concern for the public interest.
5. The Federal work force should be used efficiently and effectively.
6. Employees should be retained on the basis of adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
7. Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
8. Employees should be:  A.) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and B.) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
9. Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences: A.) a violation of any law, rule, or regulation, or B.) mismanagement, a gross waste of funds, an absence of authority, or a substantial and specific danger to public health or safety.

Why did Congress believe that the basic standards governing the management of the executive branch workforce should be included in statute?

The Pendleton Act of 1883 replaced the political patronage system that had existed until that time with a merit-based system for filling most civil service positions. The drafters of the Civil Service Reform Act of 1978 believed that this merit-based system had broken down over the ensuing century. Thus, they codified the merit principles and created a new agency, the Merit Systems Protection Board as the “vigorous protector of the merit system.”  The MSPB is an independent, quasi-judicial agency that protects Federal merit systems and the rights of individuals within those systems.

What specific role does the Merit Systems Protection Board play in ensuring adherence to the Merit System Principles?

The Merit Systems Protection Board (MSPB) is empowered to hear and decide complaints for corrective or disciplinary action when an agency is alleged to have committed a prohibited personnel practice. 5 U.S.C. §§ 1214, 1215. It is a prohibited personnel practice to (among other things) take an action in violation of the Merit System Principles. 5 U.S.C. § 2302(b)(12). In addition, Merit System Principles are mirrored in the list of prohibited personnel practices, see http://www.osc.gov/pppwhatare.htm. For example, Merit System Principle No. 9 provides that employees “should be protected against reprisal for the lawful disclosure” of waste, fraud, and abuse, while the list of prohibited personnel practices also prohibits reprisal for such disclosures. 5 U.S.C. § 2302(b)(8). The MSPB also conducts studies of the civil service, and reports to the President and Congress on the extent to which the federal workforce is free of prohibited personnel practices. 5 U.S.C. § 1204(a)(3).

Can agency managers contact the Merit Systems Protection Board for advice on whether a particular planned action is consistent with the Merit System Principles or could be a prohibited personnel practice?

The Merit Systems Protection Board (MSPB) speaks primarily through its decisions and its studies. The MSPB provides information about its decisions, studies, and procedures to groups through its outreach and education program. The MSPB is not permitted to issue advisory opinions.

What other agencies are responsible for enforcing the Merit System Principles?

The Civil Service Reform Act of 1978 requires the Office of Personnel Management (OPM) to “hold managers and human resources officials accountable for efficient and effective human resources management in support of agency missions in accordance with Merit System Principles.” 5 U.S.C. § 1103(c)(2)(F). To carry out this responsibility OPM has established an Office of Merit System Audit & Compliance. The Office of Special Counsel (OSC) investigates allegations that an agency has committed a prohibited personnel practice, and may seek disciplinary or corrective action for a prohibited personnel practice before the MSPB. 5 U.S.C. §§ 1214. It is a prohibited personnel practice to take a personnel action in violation of the Merit System Principles. 5 U.S.C. § 2302(b)(12). Other Merit System Principles are mirrored in the list of prohibited personnel practices within OSC’s jurisdiction. For example, Merit System Principle No. 9 provides that employees “should be protected against reprisal for the lawful disclosure” of waste, fraud, and abuse, while the list of prohibited personnel practices also prohibits reprisal for such disclosures. 5 U.S.C. § 2302(b)(8). The Equal Employment Opportunity Commission makes the final administrative decision on claims that an agency has committed unlawful employment discrimination. 5 C.F.R. Part 1614. Discrimination is inconsistent with the first and second Merit System Principles.

What is the first Merit System Principle?

“Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.”

What is the intent behind the first Merit System Principle?

The first clause, concerning recruitment, sets forth the vision of a federal workforce that is representative of the very people who fund the government through their tax dollars and whom the government exists to serve. The second clause, concerning selection and promotion, represents the core value of a merit-based employment model. Up until the latter part of the 19th century, most executive branch employees obtained their jobs through political connections. The Pendleton Act of 1883 replaced this patronage system with a merit system under which anyone, regardless of political affiliation, may receive a civil service appointment so long as he or she is the best-qualified applicant based on objective criteria. The final clause, concerning equal opportunity, echoes the purpose behind Title VII of the Civil Rights Act of 1964 barring discrimination in employment.

Are there any recent decisions from the Merit Systems Protection Board addressing the first Merit System Principle?

The MSPB recently imposed discipline on two agency officials who gave an unauthorized preference to a job applicant. In so doing the MSPB emphasized its obligation to “faithfully uphold the Merit System Principles,” and “to [put] agencies subject to the [CSRA] on notice that selections for employment must be made in accordance with law and must not be the result of personal or political favoritism.” Special Counsel v. Lee, 2010 MSPB 89, ¶ 35. To take another example bearing on the first Merit System Principle, the MSPB recently found that an individual was entitled to a hearing on his claim that the qualification standards used to exclude him from consideration for a federal job were not rationally related to performance in the job. Sauser v. Department of Veterans Affairs, 2010 MSPB 50.

Has the Office of Personnel Management issued any guidance to help agency HR offices comply with the first Merit System Principle?

The Office of Personnel Management has issued detailed rules governing hiring that are designed to ensure fair and open competition, as well as assessment and selection based strictly on merit. 5 C.F.R. Parts 300A, 330, 332.

Has the Equal Employment Opportunity Commission issued any guidance to help agency HR offices comply with the first Merit System Principle?

The Equal Employment Opportunity Commission has published formal guidance, known as Management Directive 715, to assist agencies in their efforts to promote a work force that is representative of all segments of society.

What is the intent behind the second Merit System Principle?

The second principle, concerning fair and equitable treatment, sets forth the vision that Federal personnel management be free of unfair treatment and discrimination, where decisions are made solely on legitimate merit-based considerations. Requiring decision making without regard to political affiliation echoes the intent of the Pendleton Act of 1883 which replaced the patronage system with a merit system. Requiring decision making without regard to race, color, religion, national origin, sex, marital status, age, or handicapping condition echoes the purpose behind Title VII of the Civil Rights Act of 1964 and related laws barring discrimination in employment. The final clause makes clear that employees and applicants for employment are entitled to the protections of the Bill of Rights and the Privacy Act.

What is the MSPB’s role in protecting the second Merit System Principle?

As its name implies, the Merit Systems Protection Board (MSPB) protects the merit system by adjudicating appeals within its jurisdiction. The employee may engage in discovery and request a hearing. Among other things, Board review will consider whether the disciplinary action was taken based upon prohibited discrimination, retaliation, or for reasons which do not promote the efficiency of the Federal service. When an employee has proven intentional discrimination, the Board may award compensatory damages except where the discrimination was based on marital status or age. The Board may even review appeals filed by probationary employees who allege that they were terminated based on partisan political reasons or marital status discrimination. However, the MSPB’s review authority is limited to those matters Congress and the Office of Personnel Management have given it. Thus, although this merit principle seeks fair treatment “in all aspects of personnel management,” the Board may not review a claimed violation of the principle relating to a matter over which it lacks authority.

Doesn’t the EEOC also handle discrimination cases?

The authority of the MSPB and the Equal Employment Opportunity Commission (EEOC) overlap in “mixed cases,” those cases involving an action otherwise appealable to the MSPB (e.g., a removal) and allegations of discrimination. While the EEOC has responsibility for enforcing all Federal equal employment opportunity (EEO) laws and the duty to coordinate and lead the Federal government’s effort to eradicate workplace discrimination, the MSPB also has the responsibility to determine if the personnel actions it has authority to review were taken in accordance with law, to include the anti-discrimination laws. In certain circumstances, the employee may choose whether to file an EEO complaint or an MSPB appeal in the first instance. Regardless of that election, both agencies may ultimately review the case. If the employee files an EEO complaint first, they can appeal to the Board after receiving a Final Agency Decision on the EEO complaint, or 180 days after he filed the EEO complaint if they have not received a final decision. If the appellant files an MSPB appeal first, they may appeal the Board’s finding on the discrimination issue to the EEOC’s Office of Federal Operations.

To talk to a lawyer about a potential MSPB appeal, contact Attorney Gregory A. Hall  at:

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue
Denver, CO 80206
Phone: 303-320-0584

Continue reading »]]> There are nine merit system principles which set forth the standards that govern the management and hiring practices of the executive branch workforce. The Merit Systems Protection Board (“MSPB”) is the Agency responsible for adjudicating employee complaints that a federal agency has committed a prohibited personnel practice. For more information about filing a MSPB appeal, visit http://www.mspb.gov/appeals/appeals.htm

Merit System Principle #3 – Equal Pay

“Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.”

Comment

What is the intent behind the third Merit System Principle? The third Merit System Principle embodies the vision that maintaining equitable salaries and rewarding excellent performance will attract and retain the most effective and efficient federal workforce through positive employee engagement.

The Classification Act requires the classification of federal civil service positions in accordance with their duties, responsibilities, and qualification requirements, and mandates that in determining the rate of basic pay which an employee will receive, “the principle of equal pay for substantially equal work will be followed.” 5 U.S.C. § 5101(1)(A). The various pay rates and systems in effect today may be found at 5 U.S.C. Chapter 53 and here.

It is the express policy of Congress that “Federal pay fixing” for employees under the General Schedule and the Prevailing Rate Systems (wage grade employees) be based on the principle that there “be equal pay for substantially equal work within each local pay area.” 5 U.S.C. §§ 5301(1), 5341(1).

What does it mean to give “appropriate consideration [to] both national and local rates paid by employers in the private sector”?

Congress has codified its policy that federal pay rates be comparable with non-federal pay rates for the same levels of work within the same local pay area, except when the President provides for an alternative level of payment due to a national emergency or other serious economic condition. 5 U.S.C. §§ 5301(3-4), 5304(a), 5341. The President establishes rates of pay within localities with the advice of his Pay Agent, designated under 5 U.S.C. § 5304(d)(1). The Pay Agent, in turn, receives salary recommendations from the President’s Federal Salary Council, established under 5 U.S.C. § 5304(e)(1), and the Federal Prevailing Rate Advisory Committee, established under 5 U.S.C. § 5347(a). The Federal Salary Council evaluates surveys conducted by the U.S. Bureau of Labor Statistics of salary data for non-federal jobs throughout the country. The Federal Prevailing Rate Advisory Committee surveys private employers, at least every two years, to determine the prevailing wage in designated regions throughout the country.

What is the MSPB’s adjudicatory role in ensuring equal pay is provided for equal work?

Although classification determinations are the purview of the Office of Personnel Management, the MSPB may review pay issues in certain circumstances. For example, the Equal Pay Act of 1963 amended the Fair Labor Standards Act to forbid employers from engaging in pay discrimination and require that employees of both sexes be paid equitably for work requiring equal skill, effort, and responsibility performed under similar working conditions. 29 U.S.C. § 206(d). An Equal Pay Act claim may be alleged as an affirmative defense in an MSPB mixed case in which the MSPB has jurisdiction over an adverse action. 5 U.S.C. §§ 2302(b)(1)(C), 7702(a)(1)(B)(ii). Issues involving pay setting may also come before the MSPB in a whistleblower reprisal case, because “a decision concerning pay” is a covered “personnel action” under 5 U.S.C. § 2302(a)(2)(A)(ix). Pay issues may also come before the MSPB in situations where the MSPB has ordered status quo ante (make whole) relief, when it has reversed or mitigated an agency action or ordered corrective action. Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984).

Has the MSPB ever studied pay equity issues?

Yes. In its recent study entitled “Fair and Equitable Treatment: Progress Made and Challenges Remaining,” the MSPB analyzed pay and status issues at pages 21-28. The MSPB concluded that while trends are improving, there remain disparities in salary levels for minority groups, principally due to their under-representation in certain higher paying occupations and managerial positions.

Why is it important to recognize excellent performance?

During debate on the Civil Service Reform Act of 1978, then-Senator Joe Biden stated that “the most important part of civil service reform must be to motivate good employee performance.” S. Rep. No. 969, at 1718 (1978). Indeed, in the MSPB’s recent study entitled “Managing for Engagement– Communication, Connection, and Courage,” the MSPB concluded at pages 43-58 that recognition of employees’ performance contributions is one of the key “drivers” of positive employee engagement and retention.

In what ways do federal agencies reward excellent performance?

Agencies must construct performance appraisal systems for their employees through which performance may be recognized by granting within-grade salary increases, career ladder promotions, or other awards. See 5 U.S.C. § 4302. Agencies must maintain an incentive awards program which recognizes and provides various types of awards to individual civil service employees whose significant contributions improve government performance. 5 U.S.C. Chapter 45; 5 C.F.R. Part 451. These types of awards include performance-based cash and time-off awards, special act awards, awards for beneficial suggestions, and recommendations for Presidential awards.

What is the MSPB’s adjudicatory role in the performance recognition process?

The MSPB does not generally have jurisdiction over performance recognition questions. However, the failure of an agency to grant a within-grade salary increase or its decision to demote or remove an employee for poor performance may be appealed to the MSPB. 5 U.S.C. § 4303(e); 5 C.F.R. §§ 432.106(a); 531.410(d); 752.405(a). Additionally, issues involving awards and promotions may come before the MSPB in a whistleblower reprisal case, because “a promotion” and “a decision concerning awards” are covered “personnel actions” under 5 U.S.C. § 2302(a)(2)(A)(ii),(ix). These issues could also come before the MSPB as “conditions of employment” in a military status discrimination case brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA). Finally, such issues may come before the MSPB in situations where the MSPB has ordered status quo ante (make whole) relief, when it has reversed an agency action or ordered corrective action. See Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984).

To talk to a lawyer about a potential MSPB appeal, contact Attorney Gregory A. Hall  at:

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue
Denver, CO 80206
Phone: 303-320-0584

Continue reading »]]> Federal Whistleblowing Activity

A federal employee or applicant for employment engages in whistleblowing when the individual discloses to the Special Counsel or an Inspector General or comparable agency official (or to others, except when disclosure is barred by law, or by Executive Order to avoid harm to the national defense or foreign affairs) information which the individual reasonably believes evidences the following types of wrongdoing:

• a violation of law, rule, or regulation; or
• gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

What are “prohibited personnel practices?”

Twelve prohibited personnel practices, including reprisal for whistleblowing, are defined by law at § 2302(b) of title 5 of the United States Code (U.S.C.). A personnel action (such as an appointment, promotion, reassignment, or suspension) may need to be involved for a prohibited personnel practice to occur. Generally stated, § 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:

1. discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
2. solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
3. coerce the political activity of any person;
4. deceive or willfully obstruct anyone from competing for employment;
5. influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
6. give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
7. engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
8. engage in reprisal for whistleblowing – i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety (if such disclosure is not barred by law and such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs – if so restricted by law or Executive Order, the disclosure is only protected if made to the Special Counsel, the Inspector General, or comparable agency official);
9. take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;
10. discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others; or
11. take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement; and
12. take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.

Who can be protected by the OSC from prohibited personnel practices?

General.

OSC has jurisdiction over prohibited personnel practices committed against most employees or applicants for employment in Executive Branch agencies and the Government Printing Office.

Limited Jurisdiction; whistleblower protection.

OSC has jurisdiction over allegations of whistleblower retaliation for employees of:

• the government corporations listed at 31 U.S.C. § 9101;
• the Federal Aviation Administration; and
• the Transportation Security Administration (TSA). (Please see section below for more information.)

Limited Jurisdiction; U.S. Postal Service (USPS) nepotism allegations.

Under a Memorandum of Understanding between OSC and the USPS, OSC refers allegations of the anti-nepotism statute (5 U.S.C. § 3110) to the USPS for investigation.  Once the USPS completes its investigation, it reports its findings and an proposed action to the OSC.

Can Transportation Security Administration employees, including security screeners, file complaints with OSC?

Yes. Transportation Security Administration (TSA) employees, including screeners, may file complaints with the OSC, although the processing of complaints may vary for screeners and non-screeners. Non-screeners may file complaints for retaliations for protected whistleblowing under 5 U.S.C. § 2302(b)(8). OSC will process these complaints under its regular procedures, including filing petitions with the Merit Systems Protection Board, if warranted. TSA screeners may file complaints alleging retaliation for protected whistleblowing under 5 U.S.C. § 2302(b)(8), pursuant to a Memorandum of Understanding (MOU) between OSC and TSA executed on May 28, 2002. The MOU and TSA Directive HRM Letter No. 1800-01 provide the authority under which OSC may investigate whistleblower retaliation complaints and recommend that TSA take corrective and/or disciplinary action when warranted. Additional information on OSC procedures for reviewing security screener whistleblower complaints under the MOU is available at http://www.osc.gov/tsa-info.htm

Who is not protected by OSC from prohibited personnel practices?

OSC has no jurisdiction over prohibited personnel practices committed against employees of the:

• Central Intelligence Agency, Defense Intelligence Agency, National Security Agency, and certain other intelligence agencies excluded by the President;
• General Accounting Office;
• Federal Bureau of Investigation;
• U.S. Postal Service; and
• Postal Rate Commission.

How does the OSC handle prohibited personnel practice complaints?

Complaints Examining Unit (CEU).

The CEU receives complaints filed with the OSC.  The CEU initially analyzes all allegations of prohibited personnel practices (as well as allegations of other activities prohibited by civil service law, rule or regulation).  When necessary, the CEU contacts the person requesting OSC action to ensure that CEU clearly understands the nature of and basis for each allegation. It conducts further inquiry to the extent necessary to determine whether the allegation warrants additional investigation.  Persons who have submitted allegations to the CEU will receive one or more of the following responses:

• a letter acknowledging receipt of their complaint and identifying the staff member assigned to handle it, with an information sheet (Form OSC-53) enclosed explaining how the complaint will be processed by the CEU;
• a status report after 90 days, and every 60 days thereafter while the matter is active;
• a letter advising that the matter has been referred to an OSC Investigation and Prosecution Division for further inquiry, with an information sheet (Form OSC-54) about the investigation and legal review process, (or, as noted below, a letter inviting the complainant to participate in mediation as an alternative to investigation);
• a preliminary determination letter, with a final opportunity for input when the CEU proposes to close a matter without remedial action or referral to an Investigation and Prosecution Division; or
• a letter advising that the OSC will take no further action because it lacks jurisdiction over the matter.

The OSC asks everyone who seeks an investigation of a possible prohibited personnel practice to select one of three consent statements (Form OSC-49) explaining necessary communications between OSC and the agency involved.

Investigation and Prosecution Division (IPD).

After a thorough initial examination, the CEU refers matters indicating a potentially valid claim (under the laws enforced by the OSC) to one of three IPD units (I, II, or III). Each unit conducts investigations to review pertinent records, and to interview complainants and witnesses with knowledge of the matters alleged. Matters not resolved during the investigative phase will undergo legal review and analysis to determine whether the IPD inquiry has established a violation of law, rule or regulation, and whether the matter warrants corrective action, disciplinary action, or both. Complainants will continue to receive 60-day status notices while matters are pending in the applicable division.

Alternative Dispute Resolution (ADR) Unit.

After CEU has completed its examination, OSC offers mediation, as an alternative to investigation, in selected PPP cases. Participation in the OSC mediation program is completely voluntary for both the complainant and the employing agency. If both parties agree to mediate their dispute, the OSC assigns a neutral third party – a mediator – to facilitate a discussion between the parties to reach a mutually agreeable resolution to the complaint. For more information on mediation at the OSC, click on the Alternative Dispute Resolution link.

Can the OSC delay a personnel action pending investigation of the matter?

An individual may request that the Special Counsel seek to delay, or “stay,” an adverse personnel action pending an OSC investigation. If the Special Counsel has reasonable grounds to believe that the proposed action is the result of a prohibited personnel practice, the OSC may ask the agency involved to delay the personnel action. If the agency does not agree to a delay, the OSC may then ask the U.S. Merit Systems Protection Board (MSPB) to stay the action. (The OSC cannot stay a personnel action on its own authority.)

How can the OSC remedy a prohibited personnel practice?

General.

Current and former federal employees and applicants for federal employment may report suspected prohibited personnel practices to the OSC. The matter will be investigated, and if there is sufficient evidence to prove a violation, the OSC can seek corrective action, disciplinary action, or both. Alternatively, parties in selected cases may agree to mediate their dispute in order to reach a mutually agreeable resolution of the PPP complaint.

Corrective action.

The OSC may enter into discussions with an agency at any stage of a pending matter in pursuit of a resolution acceptable to all parties. The OSC follows a policy of early and firm negotiation to obtain appropriate corrective action (and/or disciplinary action) for apparent violations. If an agency fails to remedy a prohibited personnel practice upon request by the OSC, corrective action may also be obtained through litigation before the MSPB. Such litigation begins with the filing of a petition by the OSC, alleging that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is about to occur. Corrective actions that can be ordered by the MSPB include job restoration, reversal of suspensions and other adverse actions, reimbursement of attorney’s fees, back pay, medical and other costs and damages.  See 5 U.S.C. § 1214

Note:

Pursuant to 5 U.S.C. § 1221, current or former federal employees and applicants who allege that they were subjected to any personnel action because of whistleblowing may seek corrective action in an appeal to the MSPB. Such an appeal is known as an “individual right of action” (IRA). By law, the employee or applicant must seek corrective action from the OSC before filing an IRA. The IRA may be file:

• after the OSC closes a matter in which reprisal for whistleblowing has been alleged; or
• if the OSC has not notified the complainant within 120 days of receiving an allegation of whistleblower reprisal that it will seek corrective action.

Procedures for filing an IRA are set forth in MSPB regulations at 5 C.F.R. Part 1209. (In considering an IRA, it should be noted that the MSPB may refuse to take jurisdiction over any matters not specifically raised before the OSC.)  The MSPS’s website has more information about IRAs: http://www.mspb.gov/appeals/whistleblower.htm

Disciplinary action.

The OSC may seek disciplinary action against any employee believed to be responsible for committing a prohibited personnel practice. The OSC begins a disciplinary action case by filing a complaint with the MSPB, charging an employee with the commission of a prohibited personnel practice, and seeking disciplinary action against that person. Rights of employees against whom the OSC seeks disciplinary action in these cases are set forth in MSPB regulations, at 5 C.F.R. Part 1201, Subpart D. Individuals found by the MSPB to have committed a prohibited personnel practice are subject to removal, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or fine of up to $1,000. In the alternative, at any time during its investigation of a matter, the OSC may authorize the agency involved to take disciplinary action against an employee believed to be responsible for committing a prohibited personnel practice. Pursuant to 5 U.S.C. § 1214(f) , during any OSC investigation under title 5, an agency may not take disciplinary action against any employee for any alleged prohibited activity under investigation, or for any related activity, without approval from the OSC. Ref: 5 U.S.C. § 1215

Intervention.

The Special Counsel may intervene as a matter of right, or otherwise participate in most proceedings before the MSPB. The Special Counsel may not intervene in certain proceedings (individual rights of action brought under 5 U.S.C. §1221, or matters otherwise appealable to the MSPB under 5 U.S.C. § 7701) without the consent of the person initiating the proceeding. Ref: 5 U.S.C. § 1212(c)

How can a person file a complaint of prohibited personnel practices or other prohibited employment activity with the OSC?

To initiate a complaint the individual must file a Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity, Form OSC-11.  Filers may file electronically at https://www.osc.gov/oscefile/ or by hard copy, using Form OSC-11 http://www.osc.gov/ComplaintsForm.htm It is important to identify with specificity allegations of prohibited personnel practices or other prohibited employment activity in the complaint. The OSC will not process a complaint not properly submitted.  Form OSC-11 does not have to be used for a complaint alleging only a Hatch Act violation.  If a person uses the incorrect format to file a complaint, the material received will be returned to the filer.  The complaint will be considered to be filed on the date on which the OSC receives the properly completed Form OSC-11.

Complaints of prohibited personnel practices or other prohibited employment activities within the investigative authority of the OSC should be sent to the U.S. Office of Special Counsel, Complaints Examining Unit, 1730 M Street, NW, Suite 201, Washington, DC 20036-4505.

See 5 C.F.R. § 1800.1

Can employees seek relief from the OSC for a prohibited personnel practice if they are covered by a collective bargaining agreement?

Pursuant to 5 U.S.C. § 7121(g), employees covered by a collective bargaining agreement must choose one of three avenues: an OSC complaint, an MSPB appeal, or a grievance under the collective bargaining agreement.

What is the OSC’s policy about allegations of discrimination?

Race, color, religion, sex, national origin, age, handicapping condition.

The OSC is statutorily authorized to investigate allegations of discrimination based on race, color, religion, sex, national origin, age, or handicapping condition (see (1), under “Prohibited Personnel Practices,” above). However, procedures for investigating such complaints have already been established in federal agencies and the Equal Employment Opportunity Commission (EEOC). Therefore, to avoid duplicating those investigative processes, the OSC follows a general policy of deferring complaints involving discrimination to those agencies’ procedures.

Sexual orientation, marital status, political affiliation.

Allegations of discrimination based on sexual orientation, marital status, and political affiliation are not within the jurisdiction of the EEOC. Such allegations, however, may be prohibited personnel practices or other violations of law subject to investigation by the OSC. Ref: 5 C.F.R. § 1810.1

What other violations does the OSC have jurisdiction to investigate?

The OSC is authorized by law to investigate and seek appropriate corrective and disciplinary action for— activities prohibited by any civil service law, rule, or regulation (including any activity relating to political intrusion in personnel decision making); arbitrary or capricious withholding of information under the Freedom of Information Act; and involvement by any employee in any prohibited discrimination found by a court or administrative authority to have occurred in the course of any personnel action. The OSC also has authority to investigate and litigate cases referred by the Department of Labor, involving the reemployment rights of veterans and reservists returning to the federal workplace after active duty. Ref: 5 U.S.C. § 1216; 38 U.S.C. § 4324.

What do I do if I believe my veterans preference rights were violated?

You should file a complaint with the U.S. Department of Labor, Veterans Employment and Training Service. The Veterans Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3330 et seq., created a new avenue of administrative redress specifically for a preference eligible who alleges that a federal agency violated such individual’s rights under any statute or regulation relating to a veteran’s preference eligible. Under the VEOA, in order to seek corrective action, a preference eligible is to file a written complaint with the U.S. Department of Labor, Veterans Employment and Training Service (VETS), within 60 days of the alleged violation. VEOA requires the Secretary of Labor, through VETS, to investigate the complaint and, upon determining that a violation occurred, to attempt to resolve the complaint by making reasonable efforts to ensure that the agency complies with the statute or regulation relating to veteran’s’ preference. If the Secretary is unable to resolve a complaint within 60 days, the Secretary is to provide notification of an unsuccessful effort to resolve the complaint to the complainant. In light of the VEOA, OSC does not investigate allegations of violations of veterans’ preference rights for corrective action purposes. (We still investigate such allegations for possible disciplinary action, however.) Thus, you should file a complaint alleging a violation of a veterans’ preference right with VETS, not OSC. Additional Information about VETS can be found at http://www.dol.gov/vets/

Are federal employees required to cooperate with OSC investigations?

Title 5 of the U.S. Code authorizes the OSC to issue subpoenas for documents or the attendance and testimony of witnesses. During an investigation, the OSC may require employees and others to testify under oath, sign written statements, or respond formally to written questions. Federal employees are also required to provide to the OSC any information, testimony, documents, and material, the disclosure of which is not otherwise prohibited by law or regulation, in investigations of matters under civil service law, rule, or regulation. The same rule requires federal agencies to make employees available to testify, on official time, and to provide pertinent records to the OSC. See 5 U.S.C. § 1212(b); Civil Service Rule 5.4

What legal responsibilities do federal agencies have to prevent prohibited personnel practices?

Section 2302(c) of title 5 requires federal agency heads, and officials with delegated authority for any aspect of personnel management, to: prevent prohibited personnel practices, including reprisal for whistleblowing; comply with and enforce civil service laws, rules and regulations; and ensure (in consultation with the OSC) that federal employees are informed of their rights and remedies. The OSC has developed a training guide for use by agencies in carrying out the duty of informing employees of their rights and remedies under title 5. On request, the OSC may also make speakersavailable to assist in conducting such training.

Contact Whistleblower Attorney Gregory A. Hall at: http://awhistleblowerlawyer.com

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue
Denver, CO 80206
Phone: 303-320-0584

Continue reading »]]> Many functions previously performed by the U.S. military are now performed by civilian contractors, doing every thing from food service to security. These companies include but are not limited to:

• Blackwater
• Bechtel
• CACI
• Dyncorp
• Halliburton
• Kellogg, Brown & Root (KBR)
• Service Employees International

Under the Defense Base Act, civilian contract employees who are injured on the job have a right to file a claim for compensation to cover medical expenses and a portion of their wages.  The Act is an extension of the Longshore and Harbor Workers’ Compensation Act (LHWCA) which provides disability compensation and medical benefits to employees and death benefits to eligible survivors of employees of U.S. government contractors. If an injured worker establishes that an accident occurred or that working conditions existed which could have caused, aggravated or accelerated an injury, an injured worker may have the right to both medical benefits for all of the injuries as well as the right to compensation benefits when disabled. As with most workers’ compensation laws, the Defense Base Act requires the employer to purchase an insurance policy that should pay benefits. The Defense Base Act also covers individuals hurt while working on a short-term or temporary work assignment for a U.S. government contractor in a foreign country. If you have been injured overseas or at home while working for the U.S. Government as a civilian employee, you may be covered under the Defense Base Act. The Defense Base Act requires notice of the injury to be given in writing to the employer within thirty days, and any actual claim for benefits must be filed within one year of the date of injury. You should consult a workers’ compensation attorney who also handles Defense Base Act claims immediately to protect your rights and ensure you receive the benefits you to which you are entitled under the Defense Base Act. Insurance companies unjustifiably deny benefits or pay insignificant amounts for valid Defense Base Act claims. Employers are sometimes reluctant to report work related injuries which, in turn, delays the processing of the claims and the payments to injured workers. keep in mind too, that the acceptance of a claim does not mean the injured worker will get all the benefits s/he may claim.

If you need legal counsel, contact Denver OWCP Attorney Gregory A. Hall athttp://federalworkerscompattorney.com/

Gregory A. Hall
OWCP Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Continue reading »]]> It can.  If you are terminated for cause, you may lose your entitlement to OWCP wage loss compensation.  In the first instance, the OWCP will examine why you were terminated and if you can show, through medical evidence, that you were not capable of earning wages despite being terminated, you may be able to continue receiving wage loss compensation from the OWCP.  Removal for medical inability to perform your job should not, by itself, negatively affect your entitlement to OWCP wage loss compensation.  However, if the only reason you are not working is because you were terminated, and you were terminated for cause, then you are probably not entitled to OWCP wage loss compensation.  In contrast, if you can establish that you were terminated because of your work-related medical condition, then you might be able to establish entitlement to OWCP wage loss compensation.

In determining your entitlement to wage loss compensation, the OWCP will consider whether you were working at the time of termination and what type of employment you held at the time of termination; e.g., a regular full duty position or a modified light duty position.  It matters too if the OWCP has issued a loss of wage earning capacity determination, whether the employing agency had light duty available to you, and whether the position you held had been found suitable by the OWCP.

If at the time of termination you are on leave without pay and receiving OWCP compensation wage loss and the reason for termination is related to your disabling medical condition, then you should be able to establish continued entitlement to wage loss compensation.  See Regina C. Burke, 43 ECAB 399 (1992); Thomas E. Keplinger, 46 ECAB 699 (1995).  Typical reasons that fall into this category are: absenteeism, failure to provide medical updates, failure to follow leave procedures.

If you resign your position, then your wage loss benefits can be terminated if the OWCP finds that you abandoned a suitable job. In addition, OWCP wage loss compensation is not available to claimants convicted of certain types of crimes, such as government fraud.  Hence, if you were convicted of certain crime or if the employing agency removed you for theft or fraud, you may not be eligible for wage loss benefits.

If you need legal counsel, contact Denver OWCP Attorney Gregory A. Hall at http://federalworkerscompattorney.com/

Gregory A. Hall
OWCP Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Continue reading »]]> Remedies For Employment Discrimination

Whenever discrimination is found, the goal of the law is to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred. The types of relief will depend upon the discriminatory action and the effect it had on the victim. For example, if someone is not selected for a job or a promotion because of discrimination, the remedy may include placement in the job and/or back pay and benefits the person would have received. The employer also will be required to stop any discriminatory practices and take steps to prevent discrimination in the future. A victim of discrimination also may be able to recover attorney’s fees, expert witness fees, and court costs.

Remedies May Include Compensatory & Punitive Damages

Compensatory and punitive damages may be awarded in cases involving intentional discrimination based on a person’s race, color, national origin, sex (including pregnancy), religion, disability, or genetic information. Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and compensate them for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life). Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.

Limits On Compensatory & Punitive Damages

There are limits on the amount of compensatory and punitive damages a person can recover. These limits vary depending on the size of the employer:

• For employers with 15-100 employees, the limit is $50,000.
• For employers with 101-200 employees, the limit is $100,000.
• For employers with 201-500 employees, the limit is $200,000.
• For employers with more than 500 employees, the limit is $300,000.

Age Or Sex Discrimination & Liquidated Damages

In cases involving intentional age discrimination, or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, victims cannot recover either compensatory or punitive damages, but may be entitled to “liquidated damages.” Liquidated damages may be awarded to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded the victim.

If you need legal counsel, contact Denver Civil Rights Attorney Gregory A. Hall at  http://denvercivilrightslawyer.com to set up an appointment to discuss your case. 

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com