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January 3 2019

IMMIGRATION UPDATE-DECEMBER 2018

admin Immigration

 

It’s been a while since I last spoke about immigration and despite the Republicans controlling both houses of Congress and the White House, no changes to immigration law were passed.  And now, that the Democrats have won the House, it’s a sure bet nothing will happen in the next few years.  However, that is not to say that there have not been significant changes in enforcement and the general tone of immigration policy.  (Not to mention the endless caravan media coverage and border wall debate.)

 

Over the past few years, enforcement efforts have been stepped up throughout the country and deportations have increased dramatically.  (Roughly 40% in 2017).  However, with the increase in “sanctuary cities and states”, these efforts are often being thwarted.  In fact, New Jersey’s new governor, Phil Murphy, is a strong proponent of sanctuary and has earmarked over $2 million for providing legal representation to undocumented people.

 

As I said almost two years ago, if you, a family member or employee has an immigration issue you have not addressed, the best advice is to meet with an experienced immigration attorney and get the process moving.  And this is even more important now than it was back then.    The reason for this is simple, if you start the process of getting documented, you stand a much better chance of succeeding than if you start the process after a deportation notice is issued. Likewise, if you have any criminal record, it is best if you get those records expunged now, rather than when answering questions about your status.  More on that in my next video.

December 28 2018

The Douglas Factor Defense for Federal Employees

admin Employment Law

 

 

Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. The Douglas factors are also referred to as mitigating factors. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed.

The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employee’s case. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments.

The following is a list of 12 Douglas factors that must be taken into consideration and explanations as to how they can apply to federal employee cases.

THE DOUGLAS FACTORS

(1) The nature and seriousness of the offense — and its relation to the employee’s duties, position, and responsibilities — including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was frequently repeated.

This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. This Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (repeat offense) and whether the actions at issue were intentional or a mistake. Generally, this factor tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty.

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.

This Douglas factor is not one of the more commonly cited Douglas factors. It is more often used to attempt to aggravate a disciplinary penalty. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high level supervisor such as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor.

(3) The employee’s past disciplinary record.

Use of a federal employee’s past disciplinary record is one of the more commonly cited Douglas factors. This factor is generally used for purposes of mitigation unless an employee

has a past similar disciplinary action. Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action.

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.

This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. past performance). For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employee’s outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. It is important to support this Douglas factor with significant documentary evidence (e.g., copies of performance records, letters of commendation, positive letters about performance by supervisors or members of the public, cash or performance awards, declarations or affidavits of supervisors).

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties.

Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty. This

Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time, after the underlying allegation has occurred. The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing. The argument in this type of case would be that the Agency has not truly lost confidence in the federal employee’s ability to perform their duties.

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses.

This Douglas factor comes into play when the Agency picks and chooses different penalties for similar level federal employees. Usually the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar.

(7) Consistency of the penalty with any applicable agency table of penalties.

Federal agencies may attempt to base a proposed or final penalty based on an agency’s table of penalties. A federal agency’s table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agency’s table of penalties. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table.

(8) The notoriety of the offense or its impact upon the reputation of the agency.

This Douglas factor generally involves how much the public has been advised of a federal employee’s alleged misconduct. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. Generally, this factor comes into play when an employee’s alleged misconduct has been reported by the media (press or television). We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employee’s misconduct, arguing that the employee’s actions have caused the federal agency’s reputation to somehow become tarnished. It is important to rebut these issues in a Douglas factor defense.

(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.

This Douglas factor is important and we use this argument in our representation of federal employees. In particular, the “lack of clarity” argument refers to the rules governing the underlying allegations at issue. Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer.

(10) The potential for the employee’s rehabilitation.

The potential for an employee’s rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employee’s disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employee’s penalty. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action.

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, or harassment; or bad faith, malice or provocation on the part of others involved in the matter.

This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by
the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues.

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we

would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. removal). The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB.

CONCLUSION

The Douglas factors are critical for federal employees facing a pending disciplinary action or for those at the MSPB on appeal. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB.

 

 

 

 

 

FLEOA
July 27 2018

DISCIPLINARY ACTIONS FOR FEDERAL LAW OFFICERS

admin Employment Law FLEOA

 

Many Federal Law Enforcement Officers are members of FLEOA and as such they are afforded legal assistance when and if they face a disciplinary action.  For the most part, as outside counsel to FLEOA my practice is focused on assisting employees who are involved in a discipline issues with their employer.  These “issues” can be anything from excessive absences to sexual harassment or worse. 

The process for asserting your rights is cumbersome and often confusing.  There are tight deadlines and procedures which must be adhered to precisely.  There are forms and special service requirements. Any misstep along the way and your claim or request will likely fail; for the easiest reason they have….You failed to follow the process as laid out in the rules you have agreed to for your job.  

To give you an idea of the complexity of this area of practice, this is the Guide to MSPB Law and Practice…..all 5000 pages of it!

On the bright side, there is a stated policy that favors rehabilitation over punishment, which means if your claim is properly presented you should be able to achieve an acceptable compromise. In addition, mediation is a frequent means of resolving issues which is much faster and cheaper than a trial or a hearing.

Regardless of what your issue might be, it is imperative that you have competent and experienced representation.  As outside counsel to FLEOA I have handled cases in a wide variety and types of cases.  If you have a matter that you need help with, please call me, Fernando Alonso Esq., and I will be happy to review your matter at no cost to you and see if we can get you the result you deserve.

January 28 2018

EMPLOYMENT LAW OVERVIEW

admin Employment Law Equal Employment Opportunity laws, FLEOA

Perhaps no area of law is more dynamic an challenging than employment law.  Not just because is covers so many areas that effect us in our everyday life, but because it is on the forefront of virtually every change that society faces and eventually incorporates into our legal systems.

From Equal Employment Opportunity laws (EEO) to wrongful termination and grievance procedure, the laws that govern employers and how they interact with their employees is constantly changing and invoking many different concepts and statutes.

Some of your rights are as basic as those contained in the Constitution while others are only recently recognized; especially with respect to gender so much in the news these days.  What will follow will be a series of videos wherein I will discuss various areas of employment law and outline what you should be aware of and consider if you believe that you have been treated unfairly.

As outside counsel to the Federal Law Enforcement Officers Association (FLEOA) I deal with many issues facing those charged with protecting us and our nation, but even they need help sometimes when dealing with the federal agency they work for.  You too might need some help and the procedures you need to follow are not always clear.  In fact, your case could be lost before you even get started if you don’t adhere to some specific requirements of your employer.

If you think you might need some help,  call me, Fernando Alonso, at 201-478-6353.

 
October 20 2017

DACA Dreamers What’s Next?

admin Immigration DACA, immigration, NJ Immigration

 

As predicted President Trump and the Republican Party have already shown signs of softening their stance with respect to who to handle the DACA  “Dreamers”.  Some 800,000 childhood arrivals are subject to deportation, even though many of them have known no other country but the US as their home.  This prospect has generated such an uproar that President Trump has stated that he is willing to work towards a solution.

Most recently, he proposed allowing those here under DACA to stay provided Congress approved funding for the border wall.  This is far from a done deal, but it clearly shows that both parties realize that the U.S. is not going to deport 800,000 children brought here years ago by their parents who are now part of this country’s society.

I urge you to contact my office so that we may examine your situation closely and explore the possibilities.

Please keep in mind that since the President announced and end to DACA, this has been an area of law filled with scammers feeding on the fears of those affected by this sudden change in U.S. policy.

So please contact the Alonso Law Office so that we can discuss your particular situation.

October 11 2017

DEFERRED ACTION FOR CHILDHOOD ARRIVALS

admin Immigration DACA

The Deferred Action for Childhood Arrivals program, commonly referred to as DACA was initiated by President Obama in 2012 by Executive Order because neither he, nor any prior President, was able to get any legislative solution passed by the Congress.
It has gained such overwhelming attention recently because President Trump announced this past summer that he was rescinding that Executive Order with one of his own. (Citing that it was an improper bypassing of the Congress, to in effect enact legislation that the Legislature has consistently refused to pass). This will have an adverse effect on roughly 800,000 people who entered the country as children, accompanying their undocumented parents. They will no longer be able to rely on this Deferred Action program to stay in the U.S.

Regardless of which side of this issue you fall on, it has generated such heated debate and passionate response, that President Trump soon thereafter appeared to change course and announced that he hoped a resolution could be reached to allow those already here in the U.S. under DACA to stay.

So naturally the question you might have is, “What does this mean for me or my family members?”

Simply stated, we’re not sure yet, as this is a quickly evolving issue, but one which we in the immigration law community are following closely. The U.S. Citizenship and Immigration Services (USCIS) has produced the following chart to answer your questions as of October 2017.

DACA essentially ended on October 5, 2017. As you can see, there are dire consequences for you if you missed these deadlines. But there may still be hope if the law is changed, as expected, or if you qualify under one of the many other categories and exceptions.

February 14 2017

KNOW BEFORE YOU GO

admin Immigration immigration travel

 

Planning on traveling abroad?

If you are living in the United States and are not a U.S. citizen and are planning on traveling abroad, you should make sure that you will be allowed back into the United States when you want to return. With the recent tightening of immigration laws and further changes to come, it is vitally important that you are certain there is nothing that could prevent you from being allowed back in. Old arrests, convictions and even financial difficulties might serve as the basis for immigration officials to deny your re-entry to the U.S. Depending on how long you have resided in the U.S. and your legal status you might be at more or less risk. Another factor would be what country you are a citizen of and what country you are planning on visiting, as well as why. In addition, the length of your trip might have consequences for your re-entry.

This is why you should consult with an attorney who is well versed in such matters who will know what questions to ask you. The answers to these questions and how any issues are resolved before you travel could mean the difference between your safe return to the U.S. or being stuck wherever you are. It is infinitely easier to fix a problem before you have left than to overcome an objection by immigration officials while you are being denied re-entry.

If you and/or your family are planning on traveling outside of the U.S. and are not U.S. citizens, please do yourself a favor and contact my office to discuss your plans and any problems that might arise.

Call the Alonso Law Office at 201-478-6353

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Alonso Law Office News

  • IMMIGRATION UPDATE-DECEMBER 2018
  • The Douglas Factor Defense for Federal Employees
  • DISCIPLINARY ACTIONS FOR FEDERAL LAW OFFICERS
  • EMPLOYMENT LAW OVERVIEW
  • DACA Dreamers What’s Next?