The Fox Sometimes Guards The Henhouse of Federal Employee Rights

Though on paper Uncle Sam aspires to be a model boss, the reality of the federal workplace can differ sharply from the federal government’s more utopian ideals.

Though on paper Uncle Sam aspires to be a model boss, the reality of the federal workplace can differ sharply from the federal government’s more utopian ideals. I find that while many federal employees might be familiar with the rights enumerated in Title 5 of the United States Code, they don’t realize that the protections afforded them don’t stop there.

Federal employees also enjoy all traditional statutory and most common-law remedies available to other employees. For example, all classes under federal anti-discrimination laws are protected. However, the federal government has its own unique methods and procedures for enforcing such laws.

There is a self-policing system that begins with the segregation of federal employees as a class, under Title 7. From there, the process for enforcing anti-discrimination laws is covered by the “Federal Sector Equal Employment Opportunity” system. This is a system by which federal agencies are empowered to accept complaints, conduct investigations and ultimately decide whether discrimination has occurred in any specific instance in their workplaces. This finding is done through the issuance of a “Final Agency Decision.”

In practice, this can be a lot like allowing the fox to guard the henhouse.

Self-policing that falls short

In my 25 years of practicing law in this area I have yet to encounter a federal agency that has issued a Final Agency Decision against itself. So where can a federal employee go if he believes he has suffered discrimination at the hands of his federal employer?

Federal court.

Government regulations require a federal employee to first go through the administrative process, but then the worker is free to take his case to federal court. That’s when it pays to hire an experienced employment law attorney and file a discrimination lawsuit. Sometimes, there is just no other option.

Other federal employee protections

Federal employees do have some additional paths within the system to address workplace wrongs.

First, federal workers are often protected by a union. For example, blue-collar employees are members of AFGE local unions, which have their own protective systems and procedures. Typically, these involve the grievance and arbitration process, as outlined in the particular collective bargaining agreement that’s in place.

There are also remedies under Federal Civil Service. Cases are heard by the Merit Systems Protection Board, which has a strict set of guidelines that determine whether it has jurisdiction. For example, the MSPB will not hear an appeal of disciplinary actions that result in a suspension of 14 days or less, whereas a labor contract would almost surely allow the grievance of a 14-day suspension.

One significant benefit of being able to file an appeal with the MSPB, however, is the availability of due-process rights. These include adequate notice of the basis for a disciplinary action, a right to a hearing, a right to representation by an attorney and a right to engage in discovery.  These tools, generally, are not available in the union grievance process.

One other note about the MSPB: It can hear a discrimination component of a case. This is referred to as a “mixed-case” complaint. Generally, the board prefers not to hear discrimination components, perhaps feeling that the Equal Employment Opportunity Commission is better equipped to handle such matters. But in order to get an entire case before one forum, it might be wise to bring all potential remedies before the MSPB.

Taken together, these options represent alternative routes for the federal employee seeking to resolve a workplace wrong. Federal civilian workers may resort to one or the other procedure – civil service appeal or union grievance – but not both.

Federal employees have class

Finally, I want to talk a little more about a key federal employee protection with a funny name: Classification. Yes, there is a code and classification for everything in the federal government, including its workers, their jobs and what they earn.

In fact, federal civilian employees are entitled to be properly “classified” in all respects. Classification provides that “… each agency shall place each position under its jurisdiction in its appropriate class and grade in conformance with standards published by the Office of Personnel Management (OPM) or, if no published standards apply directly, consistently with published standards.”

The upshot is that a federal employee theoretically cannot be directed to perform the duties of a higher classification, which is established by OPM guidelines. If an employee feels he is doing a job above his classification, he can ask for a review or “desk audit.’’ If the audit finds the employee is performing work at a level above his grade, it’s possible the employee could be bumped up – and get a raise. This is a de-facto promotion based on what is called an “accretion of duties.”

Enjoy it. You’ve earned it.

Uncle Sam is a good employer, but it pays to know your rights

The bottom line is that Uncle Sam is a pretty good boss. And when he isn’t, federal workers who feel they have been wronged have plenty of rights and recourse to remedy the situation. That’s why it’s important for federal employees to know how the system works and, if they feel they’re being treated unfairly, to call an attorney well-versed in this unique area of law.

About the Author

Attorney Keith E. Kendall joined Scaringi Law in 2010 and has over 30 years of legal experience. He is based in Carlisle, Pennsylvania and focuses his practice in the areas of employment law, criminal defense and all areas of family law.