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Federal Employees News Digest : Nov. 26, 2012
November 26, 2012 Vol. 62, No. 20 3 visit us on the Internet at www.FederalDaily.com hire an attorney, and they have been working for the government for a long time, they often get the idea---on their own---that the agency attorney is working for them. That's not the case---at all. That attorney is working as hard as they can to win the case for the agency, and make sure you lose. Anything else that you would recommend for feds pursuing discrimination claims? Smith: Make sure that when you get into a situation requiring an attorney, you get one specializing in federal employment law---fed- eral employment law is very, very different than employment law generally. How well does the system in place work to address the discrimination problem in the federal workplace? Smith: I would say it works as well as can be hoped for. When you look at the statistics---and there are a lot available, and you can see these online, about these decisions---you'll see that the EEOC and MSPB find for the agency, like, 90 percent of the time or more. And those statistics can be right. At the same time, you should remember that when, say, a district attorney gets plea-bargained guilty pleas, very quickly, those end up being counted as 'convic- tions.' Similarly, the statistics on how often the employee loses the case end up being inflated. Doing research on MSPB cases, you'll see that many are one-pagers stating that the complain- ant didn't do so until past the deadline or lost on some other technicality---and those become part of the 90-plus percent. So, you should keep that in mind. You can win. The system is very much set on deadlines. It's always 'this is the time period to do this or that'---and not being aware or adhering to this can be catastrophic to your case. These are often otherwise good cases. Are any elements of the system improv- ing, in terms of helping the employee's pros- pects of prevailing---whether the Equal Employment Opportunity Commission or the Merit Systems Protection Board? Smith: We have seen a number of changes in case law and elsewhere in favor of the employ- ees---mostly in the MSPB. Access to knowledge matters on this. We know to check Westlaw and many different legal databases, and the journals on these changes and improvements. Many times, when we go up against an agency, the agency lawyer doesn't know about the very latest, and that the law has changed. And if you're on your own as a 'pro se' litigant, you're not going to know about these cases, generally. As long as you know about these changes and can apply them properly, you can help yourself here. You'll need a specialized attorney. Do you and other firms take cases on contingency---or do you have to pay out of pocket? Smith: We have taken a few cases on con- tingency, but the usual discrimination case is done on retainer and we are paid by the hour for services on that. My understanding is that a lot of other different federal employee law firms are paid by the hour---that's the usual. Some firms require more money up front than others. You can call around and get an idea of how much will be required, up front. I've seen firms that---like ours---break up the payments so you only have to pay a couple thousand dollars up front. I've heard of oth- ers looking for $10,000 up front. If your case goes all the way to a hearing, it can cost in the $20,000 to $30,000 range---that's pretty typical. But remember many cases end up settling well ahead of a hearing. And we only would pursue a case to a hearing that we can win. What advice do you give someone who thinks they are suffering discrimination, pre- paring for a possible case? Smith: My advice begins with this: Document, document, document. And I mean everything that's happening that could be dis- crimination. This means if you have a conver- sation that adds to the evidence that you are being discriminated against, you need to write a memo on that to yourself, the day it happens, describing that conversation. This serves as excellent evidence that it happened. You can offer it later on down the road, it shows that this is not just you saying this now with pos- sibly changed facts, because you documented it back then. Make sure you write it, put your name on it, and date it. Those are the three steps. And note any witnesses present or who know about it. And keep emails---if emails are sent back and forth that involve the case, keep a copy of those emails. Because if the agency comes back and says, 'You're fired,' they can deny you access to email. We can ask for those, but I have had cases before where---and read into this as you wish---the agency said, 'We have destroyed the email archive of that employee's email,' or the like. That can cause a real problem. These are the main things to do. Also, if you are a member of a union, you can definitely talk to your union representative about it---but make sure to talk to a lawyer too. Why? That's because sometimes if you file a union grievance first you cannot then take your case to the EEOC. You need to know this, and be careful about this. Senate clears whistleblower reforms After a 13-year odyssey through Congress, the Whistleblower Protection Enhancement Act this month finally headed to the president's desk after the Senate passed the bill Nov. 13 by unanimous consent. The House had unani- mously approved the bill in September. The version of the bill sent to the president, S. 763, was the most recent attempt to pass the WPEA, numerous iterations of which had been introduced in the House and Senate for more than a decade. "After a 13-year roller coaster campaign, Congress unanimously has given whistleblow- ers who defend the public a fighting chance to defend themselves," said Tom Devine, legal director at the Government Accountability Project, a whistleblower advocacy group. "This is a major victory for taxpayers and public ser- vants, but a major defeat for special interests and bureaucrats. Free speech rights for government employees never have been stronger." Devine noted that other versions of the reform legislation had been killed in previous sessions---in 2004, 2006, 2008 and 2010---by anonymous lawmakers through a procedural maneuver known as a "secret hold." While Devine gave credit for the passage of the bipartisan bill to a long list of sponsors from both parties, he especially praised retiring Sen. Dan Akaka (D-Hawaii) for his longstanding campaign to pass the legislation, noting that the senator "has run and won a marathon victory for whistleblowers and taxpayers." But Devine said that even with passage of the bill, government whistleblower rights "are still second class" compared to protections afforded to private-sector whistleblowers, and that more work remains to be done. He pointed to two major parts of the legislation that were cut from the final version: "jury trials to enforce newly-enacted protections, and extension of free speech rights to national security workers making disclosures within agency channels." Augmenting protections President Obama last month issued a presi- dential policy directive that extends whistle- blower protections to intelligence community employees, as well as other employees who are eligible for access to classified information. The move came after the House removed national security whistleblower provisions from the WPEA legislation. continued from page 1 Don’t miss our discussion of weekly news topics. Discuss these stories and more with your fellow federal workers at www.FederalSoup.com. continued on page 4
Nov. 19, 2012
Dec. 3, 2012