WHAT CAN BACK PAY AND DAMAGES INCLUDE?

You will be surprised to see what can be included and it all depends on how you draft the grievance.

An overly simple answer is provided by the Back Pay Act which permits agencies, arbitrators and others to grant back pay to an employee for salary, allowances and differentials an employee lost because of an unwarranted personnel action. The salary payments would include any premium pay, special rate pay, overtime, bonuses or awards the employee was entitled to, but denied because of the unwarranted action. Employees can also be paid for any career ladder promotions missed or step increases.

The employee can also have the annual and sick leave he/she would have earned except for the defective personnel action and if it exceeds the maximum amount that may be carried over from year to year and lump sum payment granted for the difference.

The employee is also entitled to interest on the retroactive salary, allowances and differences.  OPM allowances include those for relocation, retention, uniforms, overseas work, cost-of-living, hazardous duty, etc.

All of the above are normally payable to an employee who files a grievance merely alleging that the contract, past practice or some binding regulation was violated resulting in an improper personnel action.

But if the employee also alleges a civil rights violation in the grievance, the agency, arbitrator, MSPB, EEOC or a court can also award damages up to a total of $300,000.00—and here is what they can include:

• Any cost or loss the employee suffered because of the improper personnel action, such as moving expenses, job search expenses, medical expenses, psychiatric expenses, physical therapy expenses, credit and financial expenses, tax for early withdrawal of retirement funds, foreclosure settlement costs, bankruptcy costs, increased health insurance costs, credit card and loan interest, additional commuting costs, animal kennel costs, and just about any other tangible loss caused by the unwarranted personnel action.
• Compensation for emotional harm such as emotional pain, suffering, inconvenience, sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, a nervous breakdown, mental anguish, and loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, substantial weight changes, or loss of health.

If you want to read about how all this works, check out the recent MSPB decision titled, Kimberly Hollingsworth v. Department of Commerce, 2012 MSPB 12, February 1, 2012. If you cannot find it on theMSPB search page, just google the terms Kimberly, Hollingsworth, MSBP, and damages.