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FEDweek
Wednesday, May 14, 2008
Print Version
1. Agencies Called Lagging on Personnel Policies
Federal agencies have made "insufficient and ineffective" use of special hiring authorities that already exist and need to consider making greater use of other personnel flexibilities such as recruitment and retention incentive payments and alternative work schedules, child care assistance and transit subsidies, GAO has told a Senate hearing. The hearing focused on improving the government's hiring system at a time when agencies are facing an exodus of retirees and shortages of employees in some critical occupations. An MSPB witness said that agencies face several challenges in recruiting and selecting employees, including the length and complexity of the hiring process, the government's ability to market its jobs to attract high-quality applicants, the ability of government assessment tools to distinguish the most qualified candidates, and the capacity of human resources staffs and supervisors to carry out hiring programs. An OPM witness said that by September that agency will issue a new government-wide standard for hiring and that it is working on issues such as streamlining vacancy announcements, and renewed the agency's pitch for legislation to allow retirees to come back to work without an offset between their salaries and annuities in certain situations.
2. Professional Liability Insurance--Choice of Several Different Payment
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Most federal employees cannot afford the prohibitive cost of defending themselves against potential threats to their career -- proposed discipline, complaints, grievances, investigations, civil lawsuits and criminal prosecution.
That is why thousands of federal employees have turned to CareerGuard Professional Liability Insurance, which pays the cost of experienced attorneys to defend a policyholder against any of these actions.
Coverage is not limited to managers or law enforcement officers.
All full-time federal employees may enroll in this valuable coverage.
Check with your agency to see if you are eligible for 50% premium reimbursement.
Also, Payment may be made by several different options:
* Direct Deposit (payroll allotment - $11 per pay period)
* Direct Bill (quarterly, semi-annual, or annual)
* Credit Card
Contact Mass Benefits at 1-800-221-3083 or at http://www.career-guard.com/
to find out how their coverage and payment options may be more suited for you.
3. Employees Win Three-Fourths of A-76 Studies
The in-house side won 73 percent of A-76 studies in fiscal 2007, according to an OMB report, continuing a pattern of winning the large majority of cost competitions with private sector bidders. However, a win by the in-house side often comes at the cost of a reorganization that pares down the workforce. The report said that 15 agencies completed 132 competitions involving about 4,200 positions last fiscal year, about 1.5 percent of positions identified as suitable for competition. The number of positions studied was down by about a third, OMB said, largely due to restrictions placed on the program by Congress which the Bush administration has repeatedly opposed but never vetoed. OMB estimated the net savings of the Circular A-76 program at $7 billion over the last five years. Employee unions challenge those estimates as failing to take into account all the in-house costs associated with contracting studies; they also say agencies fail to document projected savings or account for declines in the quality of work. Over the five years, OMB said, agencies have conducted 1,375 competitions involving nearly 51,000 jobs, nearly 40,000 of them studied under standard competition rules and the rest under truncated rules.
4. Indicated Average Raise Above 19 Percent
If the government were to follow through on the pay formula set by underlying law—which has never been done in nearly two decades of the law's operation—federal employees would receive an average raise of 19.24 percent in January 2009, according to the Congressional Research Service. The 1991 pay law created a formula of across-the-board raises plus locality pay designed to largely close the indicated pay gap with the private sector. Including both types of adjustments, the indicated raises range from 31.03 percent in the Washington-Baltimore locality to 12.19 percent in the "rest of the U.S." catchall locality for GS employees outside the metropolitan pay zones. The 2.9 percent total raise recommended by President Bush reflects only the indicated across-the-board component of the raise, it noted; employee organizations and some in Congress are working to boost the total raise to 3.9 percent, of which 1 percentage point likely would be carved out and divided up as locality pay.
5. 3.9 Percent Raise Prospects Advance
A House Armed Services subcommittee has recommended a 3.9 percent January 2009 military raise, sending the figure on to the full committee, which is expected to approve the number this week. That would parallel the figure approved earlier by the counterpart Senate committee and create a strong presumption that that will be the number for military personnel. In all but a few recent years the federal employee raise, which is determined later, has been set at the number for uniformed personnel, although Congress has not formally endorsed pay parity in this budget cycle. A budget resolution that could include such language has been hung up in a conference for more than a month.
6. Wait and See Attitude on ‘Roth' Feature
The TSPs executive director, Gregory Long, said at a recent House hearing that the TSP continues to have a wait and see attitude toward another potential change to the program, introducing a "Roth" feature, as was proposed in recently introduced legislation (HR-5797). In a Roth arrangement, money goes in after tax but comes out along with its earnings tax-free, a reversal of the TSP's design. "While Roth accounts may be viewed as beneficial by a number of participants, the scope, impact and costs to participants for this project would be huge. As of now, I am not convinced that this feature would have broad appeal, and it is not clear how participants would react to the educational efforts needed for complex tax planning issues," Long said in his prepared remarks. He said the TSP is monitoring what private sector retirement savings plans are doing, will survey TSP participants, and will revisit the issue in mid-2009.
7. Concerns Raised Over Employees Sent to War Zones
The House Armed Services Committee has expressed concerns about how federal employees who are injured or become ill in combat zones, particularly in Afghanistan and Iraq, are treated medically after returning home. The report says that about 10,000 federal employees have served in those countries in the last seven years to support security, political, and economic development—a number separate from the many thousands of employees who have been mobilized into active military duty and sent there. A report said that civilians face challenges in receiving proper medical treatment for their wounds, approval for admission to military treatment facilities and help with the process of filing workers' compensation claims once they return. While returning DoD employees are eligible to continue receiving care at military facilities, there is a "lack of understanding" by those facilities regarding that policy. In addition, non-DoD employees are not eligible and they may not get the specialized care for combat-type injuries since civilian facilities lack the expertise that military facilities have in those areas, committee members said.
8. New Summary of Pay Limits
OPM recently released a summary of pay limitations applying to federal employees. For a closer look, go to http://www.fedweek.com/content/hfi/index.php in the hot free info section of our website.
9. Committee Clears Several Bills
The House Oversight and Government Reform Committee has approved: HR-5683, which restores raises denied in some past years to GAO employees under the merit pay system there, sets new requirements for minimum raises in the future under that system and raises the pay cap for the agency's highest-level employees; and HR-3774, which requires OPM to establish an SES resource office to make recommendations to improve the diversity of the senior executive ranks and that requires agencies to report regularly on their steps to improve diversity.
10. Expert's View: Short-term Disability Insurance
The federal government does not offer its employees short-term disability insurance, writes benefits expert Reg Jones. "If you are unfortunate enough to have a short-term disability, you'll have to fall back on the bits and pieces of legislation that currently exist," he writes. You'll find his column at http://www.fedweek.com/content/ev/index.php
11. Federal Legal Corner: Establishing a Discrimination Case
The United States Court of Appeals for the District of Columbia recently held that the question of whether a plaintiff in a discrimination suit made out a prima facie case under McDonnell Douglas v. Green, 411 U.S. 793 (1973), "is almost always irrelevant" when the district court considers an employer's motion for summary judgment or decides a case at trial. See Brady v. Office of Sergeant at Arms, Case No. 06-5362 (March 28, 2008). Typically, under McDonnell Douglas, which sets forth the burden of proof for Title VII cases, a plaintiff must establish a prima facie (at first glance) case by showing that he/she was treated worse than someone not in his/her protected class before the burden shifts to the employer to set forth its reason for the challenged action. The D.C. Circuit, however, called the prima case "a largely unnecessary sideshow" that wastes litigant and judicial resources.
In this case, the district court granted summary judgment to the Office of Sergeant at Arms (House of Representatives) on grounds that the plaintiff could not show that a similarly situated employee outside his racial group was treated differently, and, therefore, had not made out a prima facie case of race discrimination. The plaintiff, a supervisor, was demoted after employees alleged that he sexually harassed them. The plaintiff, however, like many plaintiffs, was unable to find another supervisor, not of his race, who had faced similar charges to whom he could compare himself. The D.C. Circuit disregarded this issue, holding that the lack of a similarly situated comparator was unimportant and that the lower court's focus on the prima facie case was misplaced.
The court reasoned that by the time the lower court considers an employer's motion for summary judgment, the employer will have asserted a legitimate, non-discriminatory reason for the challenged decision. The court held "[t]hat's important because once the employer asserts a legitimate, non-discriminatory reason, the question whether the employee actually made out a prima facie case is ‘no longer relevant' and thus ‘disappear[s]' and ‘drops out of the picture.'" The court cited to Supreme Court cases that comport with this holding, including St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); and U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (where the Supreme Court held that "Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.").
The D.C Circuit concluded its decision by stating:
"Lest there be any lingering uncertainty, we state the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not-and should not-decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?"
Unfortunately for the plaintiff in this case, the D.C Circuit upheld the lower court's decision on summary judgment and determined that the plaintiff did not produce sufficient evidence for a reasonable jury to find that the agency's stated reason was not the actual reason and that the employer intentionally discriminated against him.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees' legal rights. To order your copy, go to http://www.fedweek.com/pub/index.php. This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we've reduced the price to only $29.95 plus s&h.
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