Hardship Transfer

[friend]

Question. I have been told that a hardship transfer must be based on a condition that did not exist at the time of appointment. For instance, I've been told I can't move my family to Boston to get special medical care for my child, then accept an ALJ appointment in Dallas, but then immediately petition to be re-assigned to Boston because that's where my husband and sick child live?

I've heard several stories about HTs. Advise, please.

[hod]

Do not take a job with the idea that you will get a hardship transfer. Our region goes nuts when someone gets assigned and then tries to get reassigned because of a problem that was apparent at the time the applicant accepted the position. They can get real nasty about it. Has it ever happened? Sure-but the person had to go through a lot of trouble and pull some heavy hitters in to get the transfer through-I am not sure either region will recover from the issue. The main point is-if being in Boston is really important to you, and I am sure it is-do not think you will be able to ask and get back.

Now, if there is a temporary situation where you would need to be transferred for just a small time period (like a couple months) that is easier to do. But it is still not a sure thing! And probably very unlikely in the very beginning of your assignment. I think you can even ask to be taken out of consideration for a while if you need to do so. I wish you the best for you and your family.

I will temper this with the info that my experience has been limited to two regions. You might get a better deal. So I would ask someone higher up. But you are asking two different regions to get together and cooperate and that is not generally in their skill set.

[k]

From Article 20 of the Collective Bargaining Agreement:
II.
Hardship Reassignment
A.
A Judge may request a hardship reassignment to another hearing office by sending his or her written request to the Office of the Chief Administrative Law Judge.
B.
A hardship is defined as (1) an unpredictable personal or family crisis resulting from a documented event seriously affecting the health or safety of the Judge or his/her immediate family, and (2) which occurs after the Judge agrees to join OHA as an ALJ. For the purpose of this article, “immediate family” refers to spouse, children, stepchildren, and parents of the Judge or spouse.
C.
The Agency will give good faith consideration to any request for a hardship reassignment based upon factors including, but not limited to the following:
Need for additional ALJ(s) in a particular hearing office.

Maintaining balance between workload and resources in the gaining and losing hearing offices.

The effect on space and staffing in the gaining and losing hearing offices.

The reasons given for the hardship reassignment.

The recommendations of the affected Regional Chief ALJ(s) and Hearing Office Chief ALJ(s).

III. Hardship Detail

If the Agency determines that a hardship reassignment is not appropriate, the Agency will give good faith consideration to offering a hardship detail to address the needs of the Judge using the factors set forth above.

IV. Payment of Expenses

Nothing in this Article shall preclude the Agency from paying expenses related to a reassignment when it is made in the best interest of the government consistent with law.

From Article 18:

Section 3 - Sick Leave

Subsection 1
Subject to applicable regulations in 5 C.F.R. §630.401 et seq., a Judge must be granted sick leave when the Judge –


C. Provides:

Care for a family member who is incapacitated by a medical or mental condition or attends to a family member receiving medical, dental, or optical examination or treatment; or

Care for a family member with a serious health condition.

Subsection 2
A. A Judge will not be required to furnish a medical certificate from a healthcare practitioner to substantiate sick leave, unless the HOCALJ or judge designee has a good faith belief that sick leave is not justified or is otherwise required by law, rule, or regulation. In such cases, the Judge will first be advised in writing of the reasons for requiring a medical certificate to substantiate sick leave.

B. Judges will not be required to furnish a medical certificate on a continuing basis if the Judge suffers from a chronic condition, which does not necessarily require medical treatment although absence from work may be necessary and the Judge has furnished medical certification of the chronic condition within the last twelve (12) months.

C. Judges will not normally be required to reveal the nature of the illness as a condition for approval of the requested sick leave except in order to comply with regulation or in instances where a medical certificate is required.

D. A Judge may be required to furnish a medical certificate to substantiate a request for approval of sick leave when the HOCALJ or designee has reason to believe that sick leave is not justified. The Judge shall first be advised in a counseling interview, which shall be recorded in the SF-7B extension file, of the perceived problem and reasons why a medical certificate may be required for future use of sick leave. If the problem continues, the Judge will be advised in writing as to whether an acceptable medical certificate will be required for future use of sick leave. The sick leave usage of all Judges under sick leave restriction will be reviewed at least every six (6) months and a written decision to continue or lift the restrictions made. If the review shows significant improvement, the HOCALJ will lift the restriction.

Subsection 3
A Judge may only leave the work site for medical treatment at an appropriate health unit when he or she has received the prior approval of the Agency, except in the case of an emergency. A Judge who returns to duty within a reasonable time shall not be charged leave. Should the health unit personnel or the Agency determine that the Judge needs to be sent home, and the Agency releases that Judge, sick leave shall be charged beginning at the time the Judge told the Agency that he or she was unable to continue working.

Subsection 4

An approved absence which would otherwise be chargeable to sick leave may be chargeable to annual leave or leave without pay at the request of the Judge provided that the HOCALJ approves the request.

Subsection 5 - Use of Sick Leave for Family Care and Bereavement Purposes

A. The Family Friendly Leave Act (FFLA) permits the use of sick leave for the following purposes:

To provide care for a family member as a result of physical or mental illness; injury; pregnancy; childbirth; or medical, dental, or optical examination or treatment; or

To make arrangements necessitated by the death of a family member or attend the funeral of a family member.

B. The definition of “family member” means spouse, and parents thereof; children, including adopted children, and spouses thereof; parents; brothers and sisters, and spouses thereof; and any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

C. Full-time employees may use up to forty (40) hours of sick leave each year for the above reasons. Full-time employees who maintain a balance of eighty

(80) hours of sick leave may use an additional sixty-four (64) hours of sick leave per year. This brings the total amount of sick leave available for family care and bereavement purposes under Subsection 5(A)(1) and (2) to a maximum of one hundred and four (104) hours per year for employees who satisfy this requirement.

Subsection 6 - Use of Sick Leave for Family Care Involving a Serious Health Condition

A. Consistent with government-wide rules and regulations a Judge may use a total of up to twelve (12) administrative workweeks of sick leave each year to care for a family member with a serious health condition.
1. Non-Tacking Provision. Judges are not permitted to use one-hundred and four

(104)
hours of sick leave for general family care or bereavement purposes plus 12 weeks of sick leave to care for a family member with a serious health condition each year. If an employee previously has used any portion of the one-hundred and four
(104)
hours of sick leave for general family care or bereavement purposes in a year, that amount must be subtracted from the 12-week entitlement.
Full-time Judges may use a total of up to forty (40) hours of sick leave for family care purposes. In order to use more than forty (40) hours of sick leave per year to care for a family member with a serious health condition, full-time Judges must maintain a balance of eighty (80) hours of sick leave at all times.

The definition of “family member” means spouse, and parents thereof; children, including adopted children, and spouses thereof; parents; brothers and sisters, and spouses thereof; and any individual related by blood or affinity whose close association with the Judge is the equivalent of a family relationship.

The term "serious health condition" is defined in Title 5 of the Code of Federal Regulations, Part 630.1202.

Subsection 7 - Use of Sick Leave for Adoption Purposes

A. Sick leave may be used for absences related to adopting a child. Uses include appointments with adoption agencies, social workers and attorneys, court proceedings, required travel, and any other activities necessary to allow the adoption to proceed to include periods during which an adoptive parent is ordered or required by the adoption agency or court to be absent from work to care for the adopted child. Judges shall furnish employer written notice three months in advance of the need to take sick leave for purposes relating to the adoption of a child. A Judge may also be required to file evidence in support of a request to take sick leave for adoption-related purposes. Such evidence may include copies of orders issued by the Court or statements from an adoption agency. When required by the exigencies of the situation, the Judge may be advanced a maximum of thirty (30) days of sick leave for purposes relating to the adoption of a child as set forth in the Federal Employee Family Friendly Leave Act.

B. The SSA-71, or other Agency approved form, should be annotated in the remarks section indicating "Adoption."

C. This entitlement to use sick leave for purposes related to the adoption of a child is in addition to any entitlement to unpaid leave for the placement of a child with a Judge for adoption under the Family and Medical Leave Act of 1993.

Section 4 - Family and Medical Leave Act (FMLA)

Subsection 1

A. Consistent with government-wide rules and regulations a Judge may use up to a total of twelve

(12) administrative workweeks of unpaid leave during any twelve-month (12-month) period for one or more of the following reasons:

The birth of a son or daughter of the Judge and the care of such son or daughter;

The placement of a son or daughter with the Judge for adoption or foster care;

The care of a spouse, son, daughter, or parent of the Judge, if such spouse, son, daughter, or parent has a serious health condition; or

A serious health condition of the Judge makes the Judge unable to perform any one or more of the essential functions of his or her position.

B. The term “serious health condition” is defined in Title 5 of the Code of Federal Regulations, Part 630.1202.

C. The entitlement to leave based on the birth or placement of a son or daughter shall expire at the end of the twelve-month (12-month) period beginning on the date of such birth or placement.

D. Leave shall not be taken by a Judge intermittently or on a reduced leave schedule unless the Judge and the employer agree otherwise.

E. In any case in which the necessity for leave is foreseeable based on an expected birth or placement, the Judge shall provide the employer with written notice three (3) months before the date the leave is to begin, of the Judge's intention to take leave, except that if the date of the birth or placement requires leave to begin in less than three (3) months, the Judge shall provide such advance written notice as is practicable.

F. Except as provided in Subsection 3 of this section, leave under the FMLA shall be leave without pay.

Subsection 2
Any Judge who takes FMLA leave pursuant to this article for the intended purpose of the leave shall be entitled upon return from such leave to be restored by the employing Agency to the position held by the Judge when the leave commenced.

Subsection 3
A Judge may elect to substitute for family and medical leave any of the Judge's accumulated annual leave, sick leave, or credit hours for any part of the twelve-week (12-week) period of unpaid leave, except that nothing in this article shall require an employer to provide paid sick leave in any situation in which the employer would not normally provide any such paid leave.

Subsection 4

A. Leave requests for additional time will be considered on an individual basis, and in accordance with the procedures and conditions set forth in this agreement and applicable regulations.

B. Terms in Section 4 of this article are defined consistent with the provisions of 5 C.F.R. §630.1202.

Section 5 - Advanced Annual/Sick Leave

Subsection 1

A. A Judge may request advanced annual leave if he or she is eligible to earn annual leave.

B. A Judge may be granted advanced annual leave up to the amount that can be earned by the end of the appointment or the leave year, whichever is sooner.

C. A Judge must repay any leave advanced and not earned at the time of separation, except that no repayment is necessary if the separation is because of the Judge’s death or disability retirement, or if a medical certificate is presented that states that the Judge is unable to return to duty.

Subsection 2
A. Judges may be granted advanced sick leave when:

They are eligible to earn sick leave;

Their request does not exceed thirty (30) workdays;

There is no reason to believe they shall not return after having used the leave and they have enough money in their retirement account to reimburse the Agency for the advance should they not return;

An acceptable medical certificate supports the request for advanced sick leave; and

An advance of sick leave would not otherwise be prohibited by law or
regulation.


B. There is no limit on the number of times a Judge may request and be granted advanced sick leave, as long as the advanced sick leave balance does not exceed two-hundred and forty

(240) hours.

C. Each request for advanced sick leave shall be considered by the Agency on its individual merits and in accordance with the criteria described in paragraphs A and B of this subsection. Any denial of the Judge’s request for advanced sick leave shall be in writing with the reason set forth and shall be provided to the Judge at the time of the denial.

Subsection 3
Denial of advanced sick leave shall not be used as an act of adverse action, discipline or reprisal for protected activity.

Section 6 - Leave Without Pay (LWOP)

Subsection 1
A. Judges have a right to LWOP in the following circumstances:

When a disabled veteran requests LWOP for medical treatment,

When requested by a reservist or National Guard member for military duties in accordance with appropriate military orders. Judges may request such leave after their military leave has been exhausted (38 U.S.C. §4316(d)),

When requested by a Judge who has suffered an incapacitating job-related injury or illness and is waiting adjudication of a claim for employee compensation by the Office of Workers’ Compensation Program, or

When a Judge makes a request under the Family and Medical Leave Act and meets the criteria for that program.

B. With the exception of circumstances listed in (A) above, LWOP is not a right that accrues to a Judge. However, nothing precludes a Judge from requesting LWOP for any purpose.

C. Requests for LWOP will be given good faith consideration. If a Judge has exhausted sick leave and benefits under FMLA, then the Judge may request and the Agency will consider approval of LWOP.

D. LWOP may be requested in the same manner for the same purpose as annual leave and sick leave. Denials of written requests for LWOP will be provided to the Judge on the SSA-71.

E. Upon return to duty after a period of approved LWOP, OHA has decided that it will restore the Judge to an Administrative Law Judge position that the Judge held prior to the leave.

[oldjag]

Hardship transfers are made, even for new judges. The key is that the hardship MUST have happened AFTER the appointment as an ALJ. That is just the first hurdle.

If you know of a problem when you are offered a city your choices are limited. This was so abused in the past that the powers that be are reluctant to grant hardship transfers unless the hardship really arose after selection and it is a significant or life threatening circumstance.

Too many of us had to live apart from families for months until the spouse could move. None of us want to see the hardship transfer used as an excuse just to get back home.

[barkley]

Also remember that it will be two years before you can get on the normal transfer list. While alot of folks do leave their families behind, really think about how you will feel about seeing your family once or twice a month for two years and how your spouse and children will manage without you.

I hope some ALJs who have done it will post.

[Legal Beagle]

So . . . does that mean we need to join the Union?

[brett5]

Friend,

I just sent you an IM.

Thanks.

[oldjag]

Mar 4, 2009 9:11:26 GMT -5 barkley said:

Also remember that it will be two years before you can get on the normal transfer list. While a lot of folks do leave their families behind, really think about how you will feel about seeing your family once or twice a month for two years and how your spouse and children will manage without you.

I hope some ALJs who have done it will post.

I lived apart for over 18 months until my wife could join me. Fortunately I was within a reasonable drive. It was difficult with a 5 year old and an eight year old at the time. The alternative is to wait until you are offered at post in your home town, or within commuting. I know of judges who waited a few years before they got hired as they couldn't leave. Must be a bear if you live in DC as the agency just does not hire from the register for that office or Baltimore as there are always a lot of transfer requests.

The bottom line is pay your money and take your choice. There is no guarantee that you will get a transfer after two years--or ever.

[counsel]

My advice is to start talking a geographic separation over with your spouse now. We really did not discuss it fully until the offer arrived and that did not give us much time to sort out the details and coordinate the move. A physical separation has worked for us, but definitely takes planning and very good communication.

[aljsouth]

Mar 4, 2009 10:00:54 GMT -5 Legal Beagle said:

So . . . does that mean we need to join the Union?

The rules apply to the bargaining unit, all nonmangement ALJ's. You should join the union, but it is not required to ask for a hardship or get on the regular transfer list.

[Legal Beagle]

Thanks ALJsouth. Hopefully I will be seeing you in person soon!

[decadealj]

IMHO the hardship transfer process has really been abused in the past and is now a classic case of the "crying wolf" syndrome. Please do not subject your family to grief by relying on a hardship transfer. There is an ALJ in Albany, NY who patiently waited for 25 years for a position to open and many others waited 10-20 years. I am afraid the process has led to some of the worst charges of favoritism and "insider" status conspiracy theories. We don't need any more folks not willing to go where they said they would go.

[aljsouth]

Mar 5, 2009 15:47:11 GMT -5 decadealj said:

IMHO the hardship transfer process has really been abused in the past and is now a classic case of the "crying wolf" syndrome. Please do not subject your family to grief by relying on a hardship transfer. There is an ALJ in Albany, NY who patiently waited for 25 years for a position to open and many others waited 10-20 years. I am afraid the process has led to some of the worst charges of favoritism and "insider" status conspiracy theories. We don't need any more folks not willing to go where they said they would go.

It is an open belief among ALJ's that the agency makes deals with judges promising a hardship transfer if the judge will agree to being made a HOCALJ in an unpopular spot for a time. I have seen HOCALJ's and one deputy chief transfered to a site which no one gets on a regular transfer list.

[judicature]

Just to be clear, the HOCALJ is a management position and historically the agency pays for the move. The ALJ accepting a HOCALJ position also gets a one-time bump in pay grade (although there is no bump if the ALJ has already hit the salary cap).

Transfers for line ALJs are at their own expense.

Generally speaking, counting on a HOCALJ position to be open up is one of the longest of shots. There is no term limit, and local candidates in the office may have an advantage because the agency does not have to pay for their move to make them HOCALJ.