What Can’t The Federal Government Do To Its Employees?

By on August 28, 2014 in Current Events with 31 Comments

In prior stories, we’ve looked at the many rights enjoyed by federal civilian employees and how the government aspires to be a “model employer.’’

A large part of this aspiration is embodied in a set of obscure, prohibited actions known as “Prohibited Personnel Practices.” This is where the federal government puts its money where its mouth is, by painstakingly spelling out what its managers may not do when it comes to their employees.

Since a large part of my practice at Scaringi & Scaringi P.C. focuses on employment law, I’ve come to know very well Title 5 of the United States Code, which deals with the rights of federal workers. As a federal employee, you must understand these rights and act when you believe those rights have been trampled upon.

Let’s take a closer look at these 13 managerial no-nos. If any appear to fit your situation, you might have a potential cause of action.

Managers are not allowed to:

1. Discriminate against you

This provision reinforces the zero-tolerance policy of the federal government for any form of discrimination in employment, including on the bases of race, color, sex, national origin, age, pay, disability, marital status and/or political affiliation.

2. Solicit or consider irrelevant, unconfirmed and/or hearsay information about you when making an employment-related decision (also known as taking a “personnel action”)

The goal here is to avoid the use of information not within the personal knowledge of the supervisor when making a decision regarding you and your job performance. This effectively rules out information that is not readily confirmable as it pertains to a decision on a promotion, disciplinary action or any and all “personnel actions” in between.

3. Influence your political activity

Managers are not allowed to try to force you to take part in any political activity or take action against you for refusing to take part in any political activity. Bottom line: Your personal politics should be none of your manager’s business, and the federal workplace is no place for campaigning of any kind.

4. Deceive or willfully obstruct you or your career

Essentially this means your manager should never play dirty when it comes to your right to compete for employment or promotion.

5. Influence you to withdraw from competition for any position or job

Your manager can never lean on you to bow out of a bid for advancement for the purpose of improving or injuring the prospects of anyone else.

6. Play favorites

Similar to No. 5, your manager can’t pick a favorite for a particular job or try to take action against the employment prospects of someone he doesn’t like.

7. Engage in nepotism

This bans relatives from directly overseeing relatives in the same agency. It also bans a relative from overseeing a relative’s boss.

8. Retaliate against a whistleblower

Period. Full stop. It just should never happen in a federal workplace.

9. Retaliate against you for asserting/exercising your employee rights

This includes any employee exercising rights of appeal, grievance, complaint filing, testifying, cooperating and/or refusing to obey an illegal order.

10. Discriminate against you for personal reasons

Managers shall not discriminate against any employee or applicant for employment on the basis of any non-employment-related criterion, other than conviction of a state or federal crime.

11. Violate veterans’ preference

If you served in the military, you deserve every legal advantage. This prohibition means to make sure you receive it.

12. Violate the merit system principles

Performance counts, and if your manager disregards the merit system and its principles, there’s a problem – and a potential cause of action.

13. Make their own rules

Managers can enforce or use only policies, forms or agreements that have official approval.

Enforcing these prohibitions

It falls to the head of each federal agency to implement these comprehensive protections and ensure that all workers know the rights and remedies that are available. These prohibited practices are generally enforced by the Office of Special Counsel, a federal watchdog agency. For example, if a federal employee is unjustly passed over for promotion, he or she may file a complaint with the Office of Special Counsel.

The prohibitions also can be enforced as a defense of a personnel action appealed to the Merit Systems Protection Board (MSPB). For example, if a disciplinary action is taken to retaliate against a whistleblower, the MSPB can dismiss the action. In addition, a complaint can be filed with the Office of Special Counsel.

The websites of the Office of Special Counsel (osc.gov) and the Merit Systems Protection Board (mspb.gov) are good sources of information about the Prohibited Personnel Practices and potential remedies for their violation.

Should you ever feel there is a problem, it’s also important to talk to an attorney well-versed in the intricacies of federal employee rights.

After all, it’s your job, your career ─ and they’re your rights.

© 2016 Keith E. Kendall, Esq.. All rights reserved. This article may not be reproduced without express written consent from Keith E. Kendall, Esq..

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About the Author

Keith E. Kendall, Esquire is an attorney with Scaringi & Scaringi, P.C. and focuses his practice in the areas of Employment Law, Criminal Law, Family Law (Divorce, Support, Custody, Relocation and Protection from Abuse), Disability Law, Workers’ Compensation, Administrative Law and Civil and Commercial Litigation. To learn more about how he can help you, call him toll-free at 877-LAW-2555 or email him.

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