Resignation Before Termination – Federal Employee Concerns

By John V. Berry, Esq., www.berrylegal.com

We often receive questions from new clients about whether or not it makes sense to resignPERSONNEL ACTION instead of being removed / terminated by a federal agency. Generally, the answer to that question is no. There is usually no advantage to resigning prior to termination from a federal employment position once a proposed action has been issued with a settlement agreement being

BACKGROUND

The most typical situation where this issue arises occurs when a pending federal agency investigation has resulted in a proposed removal action. The federal employee is then given the notice of the proposed removal and the opportunity to respond. Thereafter, the employee is approached, usually by Human Resources, and informed of the option to resign before termination. The offer can sound tempting and the employee may think that by doing so that it leaves their employment record clear. That is not generally the case, however. A different situation may arise if the employee has been investigated but has not yet been served with a proposed removal action.

ISSUES WITH RESIGNING PRIOR TO REMOVAL

If a federal employee resigns after a proposed removal is issued, a number of issues can arise. For instance, the first issue is that the employee may receive their final personnel form, SF-50 and see that the federal agency has listed “removal in lieu of termination” or words to that effect as the basis of the action. The Office of Personnel Management (OPM) has an entire manual documenting the specific codes and descriptions to place on different types of resignations for federal employees. Such a notation essentially flags a federal employee as having left the federal service while a removal action was pending. Essentially, another future federal agency would see this as little different than if the SF-50 was coded to show that the employee was removed / terminated from the federal service.

Furthermore, the question of whether a federal employee resigned in lieu of removal / termination will be asked if the individual later applies for federal employment (OF-306) (Question 12) or a security clearance (SF-86 / e-QIP) (Section 13A.5). These forms require honest (and sworn) answers to the questions at issue.

The key to leaving federal employment with as clear a record as possible is to engage in settlement negotiations with the federal agency involved. Typically, in order for a federal agency to consider this, an individual likely needs an attorney to represent them. Otherwise, we have found that federal agencies do not tend to bother agreeing to formalize a settlement agreement. In many cases, federal agencies will not assign their own attorney to enter settlement negotiations until a federal employee has their own counsel.

Conversely, if an agency has not yet proposed a disciplinary action like removal, and an investigation is ongoing, resignation without an agreement may be a potential option for a federal employee but must be considered carefully.  Before doing so, it is very important to consult with an attorney experienced in federal employment law.

TYPES OF RESIGNATION SETTLEMENTS


Typically, one of the provisions that is helpful in negotiating resignation settlements in these types of cases involves getting a federal agency to agree to a clause where they agree to rescind the proposed removal action. Other settlement clauses can include confidentiality agreements, other types of clear record agreements, along with other provisions to protect a federal employee. A federal employee cannot and should not rely on verbal promises by federal agency Human Resources that they will handle a resignation in a certain way. A verbal promise tends to be worth very little and leaves little recourse to the federal employee involved. It is very important to get the terms of a resignation agreement in writing.

CONCLUSION

When a federal employee is facing a proposed adverse action (i.e. proposed removal) issues it is important to obtain legal advice and potential representation. Our law firm represents federal employees in this process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at http://facebook.com/BerryBerryPllc

Security Clearance Levels for Federal Employees

By John V. Berry, Esq., www.berrylegal.com

As lawyers practicing in the area of security clearance law, we often receive questions from federal employees about the different types of security clearances that exist and their differences. This article briefly touches upon many of the different types of security clearances and increased classification levels for federal employees. There are several variations and types of security clearances, and some are not truly considered security clearances, but they range from Public Trust positions to Yankee White clearances on the spectrum. The following is a listing of clearances/classifications ranging from least scrutiny to most scrutiny.

clearance-levels Continue reading

Federal Employees and the Hatch Act

By John V. Berry, Esq., www.berrylegal.com

Our law firm represents and defends federal employees who have been alleged to have committed Hatch Act violations, require Hatch Act guidance or legal defense or have been subjected to illegal political discrimination in the federal workplace. Continue reading

Office of Compliance Complaints for Congressional Employees

Image

By John V. Berry, Esq., www.berrylegal.comOOCRequestforCounselingForm.jpg-0001

We represent and advise congressional employees in the filing of Congressional Office of Compliance (OOC) complaints against congressional agencies / employers under the Congressional Accountability Act of 1995 (CAA). A number of issues can arise when an OOC complaint is contemplated that should be considered by a congressional employee before proceeding. This article is a short summary of the OOC complaint process.

Which Employees are Covered by the CAA?

The CAA roughly covers approximately 30,000 employees of Congress. The following congreOOCRequestforCounselingForm.jpg-0002ssional employees are generally covered by the CAA:

U.S. Senate employees (D.C. and state office staff)
U.S. House of Representatives employees (D.C. and state office staff)
U.S. Capitol Police employees
Architect of the Capitol employees
Attending Physician employees
Congressional Budget Office employees
Office of Compliance employees
Office of Congressional Accessibility Services employees

In addition, the CAA partially covers Library of Congress and Government Accountability Office employees.

What Rights Does the OOC Enforce?

The OOC provides relief for congressional employees seeking relief for covered illegal actions taken by congressional employers which violate the CAA, involving, among other claims: (1) age discrimination; (2) disability discrimination; (3) Equal Employment Opportunity violations (race, color, religious, sex or national origin discrimination); (4) the Fair Labor Standards Act (FLSA); (5) family medical leave; (6) occupational safety and health; (7) uniformed services protections (USERRA); (8) Veteran’s Employment Opportunity Act (VEOA); (9) genetic discrimination and (10) labor law (collective bargaining) violations.

Considerations Before Filing a OOC Complaint

The first step prior to filing an OOC complaint is for a congressional employee to consider seeking legal counsel for advice and/or representation in the OOC process. Congressional employers are well represented in the OOC process, and a congressional employee should consult with their own attorney before starting the OOC process. This is highly recommended and can make a difference in providing needed details in an OOC request for counseling / complaint and also help to resolve a complaint as early as possible in the process.  It is also important to keep an eye on the timing of a complaint.  Generally, the counseling process must be initiated no later than 180 days after the violation.

Stages of OOC Complaint

There are 3 principal stages to an OOC complaint: (1) counseling; (2) mediation; and (3) administrative hearing or civil action.

Counseling

The first step of the OOC process involves filing a request for counseling with the OOC. A sample of such a request is attached to this article. OOC Counseling Form. Once the request is received, a counselor from the OOC will speak to the congressional employee and their counselor about the issues in the case. OOC counseling is considered confidential and the congressional employer is not notified that the employee has filed the claim unless the employee decides to pursue the claim following the counseling period. During the OOC counseling stage, the assigned OOC counselor will discuss the OOC complaint process, attempt to answer questions and to clarify the claims. The OOC counseling process normally lasts 30 days.

Mediation

If the congressional employee goes forward, the next step, following counseling at the OOC, is mediation. Mediation is confidential and conducted before a neutral mediator hired by the OOC to hear both sides of the employment dispute and to assist the parties in possible settlement of their cases. Typically, the employee, through counsel, will present their view of the case and what they are seeking as a remedy and then the employer’s counsel will discuss their view of the case. Often, the sides are separated into caucuses in order for the mediator to help facilitate settlement. It is often the case that the parties can come to a settlement during the mediation phase. Mediation can take more than one session to complete if the parties are making progress.

Administrative Hearing or Civil Action

If mediation does not resolve a case, the next step is to consider taking the case forward to litigation. At this stage, the employee has a choice between going through the OOC hearing process or, alternatively, taking a case to U.S. District Court. We typically advise congressional employees to take their employment disputes through the OOC hearing process. During the OOC hearing process, the OOC will appoint a hearing examiner to preside over the case.  Both processes involve litigation, but the OOC hearing process tends to be quicker. The OOC hearing process is intended to provide a hearing within 60 days of the filing of a complaint. Obviously, this requires speed in moving through the discovery and depositions process, but typically the process is much quicker than going into U.S. District Court. The court process can take significantly longer. That being said, each individual case requires an analysis to determine the best approach because filing in court may be the better option depending on the facts of a case.

Appeals

Following an adverse decision at the OOC or in U.S. District Court there are available options for filing an appeal. If an employee is appealing a decision from the OOC administrative hearing process the first appeal would go to the OOC Board of Directors. If an employee is appealing an adverse decision from U.S. District Court the first appeal would go to the U.S. Court of Appeals.

Conclusion

When a congressional employee is considering the filing of an OOC complaint it is important to obtain legal counsel early in the process. Our law firm advises and represents congressional employees before the OOC. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The firm’s Facebook page is located at www.facebook.com/BerryBerryPllc.

Filing an OSC Complaint

OSC Form 11Filing an Office of Special Counsel Complaint

By John V. Berry, Esq., www.berrylegal.com

We represent and advise federal employees in the filing of Office of Special Counsel (OSC) complaints against their federal agencies and federal supervisors involved in such complaints. A number of issues can arise when an OSC complaint is contemplated that should be considered by a federal employee before proceeding. This article is a short summary of the OSC complaint process. Continue reading

Desk Audits for Federal Employees

By John V. Berry, Esq., www.berrylegal.comDesk Audit Chart

We represent and advise federal employees when they request desk audits regarding their current positions. As one might imagine, a number of issues can arise when a desk audit is contemplated. A desk audit is simply a procedure where the duties and position of a federal employee are evaluated to determine whether or not the employee’s position should be upgraded in terms of grade, pay level, title or classification series. A desk audit is also referred to as a classification appeal. Continue reading

Responding to Proposed Discipline for Federal Employees

Sample Proposed Disciplinary Action

By John V. Berry, Esq., www.berrylegal.com 

We often represent and defend federal employees in proposed disciplinary actions. When a federal employee is facing proposed discipline it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation. This article outlines some key points for federal employees as they respond to proposed disciplinary actions. We have also drafted a Sample Proposed Action, a hypothetical proposed removal, so that federal employees can better understand how a disciplinary action starts. Continue reading

Federal Employee Law Blog Begins

 

By John V. Berry, Esq., www.berrylegal.com

Berry & Berry, PLLC, attorneys specializing in federal employment law matters before the Merit Systems Protection Board, the Equal Employment Opportunity Commission, the Defense Office of Hearings and Appeals, the Office of Special Counsel, and many other federal administrative agencies are proud to announce their new blog, which provides information on various areas of interest to federal employees.