One of the elements that makes a career with the federal government so attractive is the myriad rights with which a federal employee is endowed. Most of these rights are codified in Title 5 of the United States Code.
As much as Uncle Sam seeks to be a model employer, the realities of the federal workplace and the actions of individual supervisors can fall short. That’s why it’s important for federal employees to know their workplace rights.
As an attorney with Scaringi & Scaringi P.C. focusing on civil litigation, employment law and unemployment compensation, I’ve come to know Title 5 well – and it’s a good idea for federal employees to be familiar with it, too. There are many specific workplace rules and regulatory language around the issues of whistle-blowing, union membership, discipline, conduct, dispute resolution, anti-discrimination, job classification, merit systems, promotions, performance and pay and benefits.
In my last article, we started looking at the human-resources arm of the federal government and the nine Merit System Principals that add up to a single edict that “the United States government is expected to be a model employer.”
Now we turn to the actions that the federal government is not supposed to do. The strong protections afforded federal employees are called the Prohibited Personnel Practices. Knowing and understanding these prohibitions is fundamental to safeguarding your rights as a federal employee.
Prohibited Personnel Practices: Powerful employee protections
The Prohibited Personnel Practices are 11 practices that the federal government is forbidden to take as an employer. In sum, these prohibitions spare federal workers from all manner of workplace indignities. Any action taken by a federal agency or supervisor that rubs up against these Prohibited Personnel Practices can be subject to scrutiny by the Office of Special Counsel.
So what are some of these protections?
For starters, federal employees are assured of all the basics: a 40-hour workweek and specific paid holidays, paid leave and overtime. Federal employees have the right to collectively bargain and unionize.
All aspects of federal employment and retention must be in accordance with the Merit System Principles and Office of Personnel Management guidelines, which we previously discussed.
The employee protections go well beyond hiring and firing. The manner in which a federal employee’s performance is graded has changed over time due to these rules.
At one time, the government had a five-point system in which supervisors graded employees on a scale of exceptional to unacceptable. When the government determined, not long ago, that firing an employee who had received five straight exceptional performance evaluations created a problem, the evaluation system was changed to assess an employee’s performance as acceptable or unacceptable. If an employee’s performance is judged sufficiently unacceptable, a performance-based removal action can ensue.
However, such action cannot be initiated until the employee is given an opportunity to demonstrate acceptable performance. But what constitutes acceptable performance can be widely interpreted, giving the employee the ability to legally challenge the finding.
Federal employee pay isn’t secret, but it is classified
When it comes to pay, it’s all classified. Not as in secret, but classified in that every federal position must be categorized according to Office of Personnel Management guidelines and other regulations.
Employees who believe their position is improperly classified – for example, the work being done reflects the duties of the next-highest pay grade – have the right to request a review under a process called a desk audit.
When an employee is punished, there are protections, too. These so-called adverse actions against an employee are covered by provisions that depend on the severity of the punishment. Adverse actions resulting in suspensions of 14 days or less are covered by one set of rules, while a different set of regulations covers disciplinary action including suspension for more than 14 days, removal and furlough.
The severity of punishment dictates how an employee can proceed: A suspension of 14 days or less cannot be appealed to the Merit Systems Protection Board, while a longer suspension triggers an employee’s right to challenge the penalty’s just cause before the board.
Self-policing federal anti-discrimination rules: The fox guarding the henhouse?
In addition, federal employees enjoy all traditional statutory and most common-law remedies available to private-sector workers. For example, federal anti-discrimination protections apply. However, the federal government has its own method for enforcing anti-discrimination laws.
It is a self-policing system that begins with the segregation of federal employees as a class, under Title 7. From there, the process for enforcement of the anti-discrimination laws is covered by the Federal Sector Equal Employment Opportunity policy.
The policy covers how federal agencies accept complaints, conduct investigations and ultimately decide for themselves whether discrimination has occurred. This is done through the issuance of a Final Agency Decision, or FAD.
In practice, however, this can be a lot like allowing the fox to guard the henhouse, something we will explore in more depth in my next article.
Because while the federal government aspires to be a model employer – and has plenty of rules on the books to further this goal – the reality of the federal workplace can be sharply different.
Indeed, federal employment rights remain a complex area of law. But after more than 25 years of representing federal employees, it’s a field I know how to navigate to deliver results for my clients. Keep in mind that every case is different and success depends on having an advocate who knows the system.
We have but scratched the surface of federal employee rights. In my next article, we will continue to explore federal employee protections, including what happens when this self-policing of federal anti-discrimination safeguards falls short.
