Your Rights as a Federal Worker

At 2.7 million workers, the Federal Government is the largest employer in the United States. Many, if not the majority of these employees, do not understand the rights that they have as Federal employees. The rights that govern a particular position will vary, but perhaps the single most important source of rights is the Civil Service Reform Act of 1978. The CSRA created the Merit Systems Protection Board as an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems. For most Federal workers suffering some form of adverse disciplinary action or a Reduction in Force, the Merit Systems Protection Board is where they need to turn to for protection.

Most of the cases brought to the Board are appeals of agency adverse actions--removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or less. The next largest number of cases involve appeals of OPM determinations in retirement matters. Other types of actions that may be appealed to the Board include: performance-based removals or reductions in grade, denials of within-grade salary increases, reduction-in-force actions, OPM suitability determinations, OPM employment practices (the development and use of examinations, qualification standards, tests and other measurement instruments), denials of restoration of reemployment rights, and certain terminations of probationary employees.

It is important to keep in mind that the Board may only hear "adverse actions," such as those described in the preceding paragraph. Whenever an agency takes an adverse action, the agency is supposed to spell out the appeal rights available to the employee. However, the process of appeal to the Board can be as trying as litigating your own Federal case. In fact, the Board follows a process that is very similar, but much abbreviated, to a Federal or State Court case. Unlike, Federal Court actions, a legal representative advocating for the employee, need not be a licensed attorney. Oftentimes, the representative is a union steward or other Federal employee. However, the worker has the right to hire an attorney and if he or she prevails, can be awarded attorneys' fees.

If you are a Federal employee, who has suffered some form of adverse action, it is critical to act quickly. Oftentimes, the employee who has been disciplined or fired is so stunned that they let critical deadlines pass. Accordingly, it might be wise to consult with an employment attorney, especially one who has practiced before the Board.

Can an employee manual or handbook give rise to a lawsuit by an employee?

Most businesses reach a point where they find it necessary to put their company policies and procedures in writing. While such manuals may relate strictly to business-related processes, employers also use the promulgation of an employee manual or handbook as an opportunity to set down employment-related policies such as overtime use, hours of operation etc. In so doing, many employers employ a cut and paste method of putting down a policy over an issue that is currently percolating in the workplace, such as a chronically tardy employee. In so doing, the employer runs the risk of giving rights to an employee that the employer did not foresee or intend.

In the case of Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984), the Washington State Supreme Court held that the employer's right to terminate an at will employee can be contractually modified and, thus, qualified by statements contained in employee policy manuals or handbooks issued by employers to their employees. Thus, even though, in Washington State, an employee works at will of the employee, which is to say he/she may be terminated for any lawful reason, the relationship may be modified by the issuance of a employee manual. In order to sue under such a provision the employee must prove these elements of the cause of action: (1) that a statement (or statements) in an employee manual or handbook or similar document amounts to a promise of specific treatment in specific situations, (2) that the employee justifiably relied on the promise, and (3) that the promise was breached.

These obligations necessarily arise when the employer makes promises of specific treatment in specific situations. And this obligation may arise even though the manual or handbook contains language to the effect that the employee works at will of the employer. The language or situations that can give rise to such an obligation are very fact-specific. Accordingly, even when the employer has a competent human resources manager or department, it behooves the employer to get the employee manual or handbook reviewed by an attorney. Such a review would not only foreclose future problems but also would provide the employer guidance on lawful policies. Themis Litigation Group regularly performs this service at a very modest cost to the employer. Prudence, in this instance, need not be expensive.

Demand Judge Sotomayor's Confirmation

Let me completely clear on this point, Judge Sonia Sotomayor is qualified to sit on the Supreme Court. But let's be even more direct, Judge Sotomayor is more qualified to be a Supreme Court Justice than any of the current chair-warmers, never mind the lot of mediocrities, Republican Senators who are far less wise than Sotomayor. Make no mistake, the opposition to Sotomayor by the white-male Republican southern rump, is based faintly on ideological predispisition, the real animating motive is the fact that they are choking on the thought of their cleaning lady taking hold of power that they thought was reserved for the Brahmin class to which they belong.

There is simply no way to argue that Judge Sotomayor is unqualified to be Supreme Court Justice. Her experience, for SC Justice, far exceeds that of the currnet bench.

Sonia Sotomayor has been a judge of the United States Court of Appeals for the Second Circuit since 1998. Before joining the appeals court, she served as a United States District Court judge for the Southern District of New York. In May 2009, President Obama nominated Judge Sotomayor to replace Justice David H. Souter, who retired from the Supreme Court in June.

In making his first pick for the high court, President Obama emphasized Judge Sotomayor's "extraordinary journey" from modest beginnings to the Ivy League and to the pinnacle of the judicial system. She would be the first Hispanic justice in the court's history, and only its third woman. Casting her as the embodiment of the American dream, the president touched off a confirmation battle that he hopes to wage over biography more than ideology.

On the district court bench, Judge Sotomayor earned a reputation as a sharp, outspoken and fearless jurist, someone who does not let powerful interests bully, rush or cow her into a decision. An analysis of her decisions on the appellate court showed a largely mainstream jurist, who generally stuck closely to the facts in the case and favored narrow rulings over sweeping statements. Her most celebrated case was her ruling in 1995 in which she barred team owners from unilaterally doing away with the free agent and salary arbitration systems, a finding that cleared the way for the end of the strike that had cancelled the 1994 World Series.

Never mind, that the good lady was a prosecutor, practiced commercial law with a white-shoe firm and then went on to become a trial judge and an appellate Court Judge. It would be hard to find someone with this breath of experience, let along a Puerto Rican Woman from the Bronx to fit the bill. As each hypocritical white male Republican drones on about her "wise Latina" remark, pretend you are seeing this in 1955, which is where most of her opponents continue to inhabit. As Bobby Dylan said, the times they are changin'and they will continue to change. Clarence Thomas was a place-holder, Judge Sotomayor is the future. Get used to it.

Why Litigation is not Always the Answer

As a trial lawyer and employment law attorney, I see a lot potential clients with a variety of grievances. Most often, clients see a lawsuit as a means to addressing a problem. I often counsel clients that litigation is not the proper course. There are a number of reasons why litigation should not be pursued. The most obvious reason is that the client does not have a cause of action; which is to say that he or she has no grounds for proceeding with a lawsuit. But there are also practical reasons why litigation may not be called for, even when there are grounds for a suit. In his classic book, "A Civil Action," author, Jonathon Harr describes the grueling ordeal of an environmental law suit that exploded into a nightmare. Litigation extracts an emotional toll and stress that is nothing short of punishing, both for the plaintiff and the defendant. The monetary costs of even the most mundane lawsuit are exacting. And the end result of much litigation, even if one prevails, often leaves one spent and frustrated. It is perhaps one of the ironies of law practice, that most lawyers rarely receive a sincere thank you for their services.

Most important, though, is the fact that alternatives exist. Oftentimes, both sides can reach an agreement without recourse to a lawsuit. Alternative dispute resolution has become a common method for resolving festering disputes. In one case, a client was being sexually harassed by her immediate supervisor. The client clearly had a good case and was quite ready to sue. However, the company's attorney agreed that the supervisor had engaged in unlawful conduct. After a series of meetings with all concerned, including possible witnesses, the case was resolved to the client's satisfaction. She kept her job, the supervisor was dismissed and she was compensated for her emotional distress. Conversely, an employer may which to terminate a relationship with an employee because relations have soured to the point of loss of productivity. Mediation, in such an instance, often leads to an agreement whereby the employee leaves on terms that will not hinder his future employment and income potential. In fact, I have heard it said, that litigation is an indication that somebody screwed up. Most valid cases settle and many more would settle if the parties participate, in good faith, in some form of dispute resolution.