Date: April 5, 2020
TELG's Michael Vogelsang, Jr., spoke with the FedUpward podcast about different situations where you might need a lawyer and what your first steps should be.
"It is advantageous to have an attorney giving you advice at the beginning because there may be a step you miss or a nuance very specific to your case that could help it or, if overlooked, could be a problem down the road."
Michael L. Vogelsang, Jr.
When and Why You Might Need an Attorney
(Transcribed and lightly edited by The Employment Law Group)
Introduction Voiceover: The FedUpward podcast, a place for federal employees and friends of feds to find strategies and tactics to navigate everyday problems.
Love Rutledge (Host): Hi folks, this is Love Rutledge, host of the FedUpward podcast, and I’m here today with Mr. Michael Vogelsang, a principal at The Employment Law Group in Washington, D.C., where he frequently handles cases that involve whistleblower retaliation, employment discrimination, wrongful termination, and other workplace claims. He specializes in support to federal employees. He has a lot of experience in that area, and I invited him on the show so that he could talk about the reasons why you might need to retain someone with his expertise and give him an opportunity to talk about the kinds of services he offers.
Hi, Michael. Thanks for being here today.
Michael Vogelsang, Jr.: Good afternoon, thank you for having me, Love.
Rutledge: So first, I’ll start with what your law firm does in general and how you serve federal clients.
Vogelsang: Sure, so The Employment Law Group: We specialize in employment law, specifically representing employees. This includes private sector, but it also does include a lot of federal sector employees.
For federal sector employees, we assist our clients with the full gamut of issues that generally could arise. This could be responding to a notice of proposed action, initiating contact with your agency’s EEO or Equal Employment Opportunity Office, submitting a formal EEO complaint, representation in front of the Equal Employment Opportunity Commission (EEOC) or U.S. District Court, if you go that route.
We have also drafted and submitted whistleblower complaints to the Office of Special Counsel or OSC and done whistleblower or removal appeals to the Merit Systems Protection Board or MSPB. We even have experience in intelligence community whistleblower complaints, which is done differently from the MSPB or OSC process. It’s done under the Presidential Policy Directive, PPD-19.
So pretty much anything from the alpha to the omega of federal employment issues, we can and have handled.
Rutledge: Great, thank you so much for that overview, and I want to say, of course, nobody wants to be in a position where they’re calling someone like Michael, right? But when you need folks like this, you really need them, and his firm is one of many. So, I want to be clear that there are different attorneys and groups in the D.C. area and all over the country that do this kind of work, but again, Michael popped up when I did a search online as being someone with a lot of experience in this area. So, I’m not personally giving any legal advice. I want to be clear about that.
Moving on, Michael, can you tell us a little bit more about the whistleblower representation that you’ve done because I think that’s something that’s really interesting and certainly pertinent in recent months in terms of what’s been going on with congressional inquiries and then now in this uncertain time of COVID-19 and all the legal ramifications of decisions being made right now.
Can you tell us how your services are relevant and what kind of support you provide specifically in those kinds of cases?
Vogelsang: Yes, of course. One thing to keep in mind is that whistleblower reprisals or whistleblower claims have a multi-step process, and so, it can be confusing to make sure you lay the process up in the right sequence.
First, you do have to have a disclosure. You do have to disclose a violation of a law, rule, or regulation or gross waste or gross mismanagement or a danger to public safety. There is a limitation as to what categories qualify as whistleblowing. So, a firm like mine is able to provide services to craft those disclosures at the very beginning to help make sure it hits the right legal elements and hits the right buzz words, if you will, to qualify as a disclosure.
But before you even get to any kind of litigation – and the MSPB is where most litigation for whistleblowers occurs – you do have to go to the Office of Special Counsel first, so the OSC. They do have exclusive jurisdiction for 120 days to look at these complaints first. My firm also does draft those complaints and help represent employees in the OSC process before even getting to litigation in the MSPB.
So, it really is a three-step process, if you will: You have to disclose something, something has to happen to you that you feel retaliation; you then have to go to the OSC; and then you have to go after that to the MSPB where actual litigation – you’re talking depositions, motions, hearings – happens.
I know it gets a little bit into the weeds, but for our intelligence community employees, there is a separate process that is always housed within the intelligence community agency, and by IC, I’m referring to FBI, CIA, or other subcomponents of agencies that deal with national security. They have a whole separate cadre of policies they would have to follow under PPD-19, and we do have experience with that as well.
Rutledge: So, what I’m hearing you say is that before you even start the process, it’s wise to get the advice of counsel from someone like you who’s been through it so that you don’t have any missteps from the very beginning.
If someone is contemplating initiating the process before they file any paperwork, should they find a professional like you to help them craft it? It sounds like that’s what you were just discussing.
Vogelsang: I would recommend it. I don’t want to come off self-interested. It’s not required. There’s no statute or rule or law that requires that, but in my experience with discussing matters with the OSC and MSPB, they’re always looking for a particular thing.
It’s always worth knowing that the investigator from the OSC who will look at your complaint first is an attorney. The Merit Systems Protection Board judge who will be reviewing your case was once an attorney. So, you are going to have to represent your claims, or the employee will have to represent their claims to someone who either is or was an attorney. Having an attorney help outline what did you say, when did you say it, why was what you said a violation of law or danger to public safety, and what happened thereafter will help craft the who, what, when, where, and why that the OSC and the MSPB looks for.
I will say I have taken cases that were initiated by an employee in the MSPB, and I will say some of our first steps from an attorney perspective is, “Let’s recraft where we started to make it fit the elements and go from there.” So, yes, it is advantageous to have an attorney giving you advice at the beginning because there may be a step you miss or a nuance very specific to your case that could help it or, if overlooked, could be a problem down the road.
Rutledge: Just like everything else in the federal government, it’s all about process and timelines, right? So, getting it right from the beginning is super important.
Can you tell me how the type of federal employment an individual falls under – like accepted service or a political or an SES – may or may not impact the kinds of processes that they would go through either on whistleblower protections or EEO complaints or discrimination and bias cases? What bearing does the type of employee you are have on these types of cases?
Vogelsang: That’s a great question. The type of employee is very important to whistleblowing and discrimination cases. My joke is usually, “for every rule, there is an exception, and for every exception, there are three corollaries to that exception.” And federal government employee status is no different when it comes to how to navigate the rules. It would probably take much longer than a 20-minute podcast to go through all the exceptions, but I can give you some high-level exceptions that come up.
One of the big ones is accepted service as opposed to competitive service. There are some rules for complaints or appeals, if you will, to the Merit Systems Protection Board of adverse action if you’re in the accepted service. The primary hurdle is that you must be in your position for at least two years. That is the traditional requirement.
Political appointees are a very, very mixed bag. It’s hard to get into because it depends upon what the position is.
Senior executive service: They do have similar rights to competitive service employees, but the elements are different. For your traditional competitive service employee, if you’re talking about removal for example, you’re talking about efficiency of the service and/or performance. Were the proper steps taken? For SES, the elements are a little bit more stringent, and the management has more oversight.
Other areas that come up a lot is if we have any Veteran Affairs employees, especially nurses and doctors. They tend to fall under what’s called Title 38, which is a separate pay scale. If you’re a doctor or a nurse for the VA or sometimes NIH, those employees don’t have direct appeal rights to the MSPB, for example, of removal action, so they would have to go through the discrimination process through the EEO or the whistleblower process with the OSC. There would not be direct appeal rights as a Title 38 employee.
Probationary employees: If you’re within the first one to two years of your employment in a competitive service realm, you also don’t have direct appeal rights to the MSPB, and your rights are limited to marital status, political affiliation, and suitability issues. So, it does really change where you are, but I will say, the traditional competitive service employee has 45 days to initiate contact for a EEO case or, if it’s whistleblowing, there actually isn’t a statute of limitations to go to the OSC.
And so that’s a high-level view of some of the specific nuances. There are always many, and it’s for that reason that hiring an attorney can be helpful to navigate how your employment status impacts which route you can go and even which routes are cut off.
Rutledge: Perfect. Is there anything in particular that folks who are in federal law enforcement should think about?
Vogelsang: For federal law enforcement – especially if you have a security clearance – you always have to understand that anything you say, any complaint you raise, if it is any indication toward your suitability or your fitness for duty, it is still within the agency’s right to look into suitability or fitness for duty irrespective of the fact that you’re blowing the whistle or making an EEO complaint.
It is very important to be careful as to what type of information you disclose, especially about yourself, because you do not want to put your security clearance or your fitness for duty in question. So, that is one thing to keep in mind.
Rutledge: That’s great advice. Thank you for that, Michael. Another question I have for you, given all the crazy and unusual things that are going on right now across the federal government in the medical community and law enforcement and all kinds of agencies and departments associated with COVID-19 response: Do you have any advice for folks who are making some really tough decisions right now and might be facing some unusual circumstances in terms of how to document anything that’s coming up or what kind of questions they should be asking so that they protect themselves?
Vogelsang: Well, one thing I will state – a plug for OPM, if you will – OPM has, I think, a pamphlet almost every other week about the government’s position on COVID-19 and how it impacts your workplace. So, if you do go to OPM’s website, they have a page dedicated to COVID-19 that talks about how to address certain things.
One thing I would advise to keep in mind is that technically, as we sit today, especially in the D.C. area, the government is technically open. It is open, and it is running, and so, if you have a telework agreement, then you can work telework with your supervisor’s approval. If you don’t, then you are expected to work.
And when you’re working or teleworking from home, a lot of the policies that OPM is putting out has to do with being able to record the work that you’re doing. If you’re taking care of a child, for example, make sure that you don’t bill the government for that time. If you are symptomatic, then you need to take leave or sick leave for that time. This is not administrative leave or weather leave or sort of emergency leave unless your particular agency evacuates you or tells you we are officially closed. Then, the type of administrative or weather leave rights trigger. But again, if you’re telework-able and you can work, then you wouldn’t be able to take that administrative or emergency pay.
So, it’s very important to keep in mind when you’re working: can you work and if you yourself or your agency was evacuated versus you just being at high-risk or high-exposure to COVID-19. So, my recommendation is to read what OPM has put out because they have at least a handful of Q&A’s on this but keep track of when you’re working. Make sure that there is evidence that you are working because what you don’t want to have happen is supervisors coming in and looking at your work product and saying, “you didn’t work enough time,” or “you had children at home, we’re going to end up docking your leave, we’re going to end up making you take leave or leave without pay.”
Documenting the work that you are doing is probably the best prophylactic for that.
Rutledge: That is super good advice for everybody right now, whether you’re a federal government or even contractor supporting the government, that that documentation is critical. That when we get to the backside of this, hopefully sooner rather than later, we all have what we need to keep our leave intact to the maximum extent possible. Any other suggested questions you think we should be asking our supervisors if, for example, telework policies aren’t clear or there’s confusion in the office about who needs to come in and who doesn’t.
Vogelsang: I would suggest open communication with your supervisors. At the end of the day, your supervisor’s going to be the one who would likely initiate any action if there were one to be initiated. If you have an email or a memo from your supervisor saying yes, you can telework, or no, you can’t, then that also will help you when you come back in following the instructions of your supervisor. At the end of the day, if you follow the direction of your supervisor, that is what is foundationally the most important.
But yes, I would say if you’re unclear about if you can telework, always ask your supervisor. If you have your direct HR contact, do so. I know one thing I was reading that comes up is the approved location for telework. You have to have an approved location in your telework agreement in order to do your telework. You’re not supposed to just pick up and go somewhere else and telework from there. I was going to say, “if you’re going to Starbucks,” but Starbucks is closed now, but if you’re going to some other remote location to telework, and it’s not approved, that can be a problem. So, if you are at all teleworking and something happens, let’s say your kids are home and you can’t work or your spouse actually is tested positive for COVID-19 and you want to separate to give yourself and your children some space, then you would want to work with your supervisor. “Can I have an ad-hoc alternative work location approved because I need to change my current location?”
And so, one thing to keep in mind is that the telework agreement that you already have in place or should’ve had in place before going to telework is going to rule the proprieties of what you’re doing during this time period. The corollary to it is your supervisor does have discretion, and that’s one thing that is a theme, if you will, in OPM’s Q&As: With this ever shifting fluid nature, agencies have discretion. Your supervisor does have discretion. You get your supervisor on board; I would say the chances of anything negative in the future are greatly diminished.
Rutledge: So many things to think about, so many things I certainly would have never thought about had you not brought them up. Michael, thank you so much for all this advice. Great food for thought for federal employees who are working uncertain times.
Michael, if folks want to get in touch with you or they have an issue that they want to discuss with an attorney, how can they find you?
Vogelsang: Our webpage is the easiest place. We are employmentlawgroup.com. We also have an 800 number or 888 number, which is 888-826-5260, and again, we are The Employment Law Group. We are here in downtown D.C. – Farragut Square to be specific – and we do have either phone lines or online chat available 24/7 for potential clients.
Rutledge: Fantastic. Michael, again, thank you so much for your time today, and I appreciate everything that you do for federal employees.
Vogelsang: Thank you very much.
Rutledge: Thanks for listening to this episode of the FedUpward podcast. You can find me on Instagram @fedupwardpodcast, on Twitter @fedupward, or via email at [email protected] If you found this podcast helpful, please recommend it to a friend.
Until next time, don’t get fed up, get FedUpward.