Can a Federal Employee Lawyer Help to Save Your Career?

What workplace rights do federal employees have?

In general, federal employees are entitled to the same basic rights as other American workers, which include:

• Non-Discrimination: All employees should be free from discrimination or harassment based on factors such as race, color, religion, sex, national origin, disability, age, or genetic information.
• Retaliation Protection: Employees should be able to file a complaint or participate in an investigation or lawsuit related to discrimination (or other workplace injustices) without being retaliated against.
• Equal Pay: Federal law mandates that employees receive equal pay for performing the same work, regardless of gender or other protected categories.
• Reasonable Accommodations: Employees with medical conditions or religious beliefs that conflict with workplace policy have a right to reasonable accommodations, provided they don’t impose undue hardship on the employer.

In some respects, federal employees have more rights than private-sector employees. For example, private-sector employees often have at-will jobs. Because federal employees are generally not at-will — with some exceptions — they have the right to challenge certain personnel actions, such as removal.

Employees of the federal government also may benefit from fact that the U.S. president is their boss and can offer protections that might not be approved by Congress for all workers: President Obama’s decision to ban discrimination against federal employees on the basis of gender identity is a good example.

Certain laws have been written specifically to protect government workers and may offer clearer rights than are available to some private sector employees. The Whistleblower Protection Act is a good example.

Private-sector employees don’t have a blanket assumption of whistleblower protection. Those that do are the exception to the rule. For federal employees, it’s the categories who don’t have whistleblower protections that are exceptions. Federal employees in the Intelligence Community (IC), for example, don’t have whistleblowing complaint rights outside of their employment agency.

Issues connected with military service may necessitate a different process than other federal employees go through.

As experienced federal employee lawyers, the attorneys at The Employment Law Group® law firm know which protections apply in various situations — and which legal strategies have the strongest chance of success.

EEOC Attorneys for Federal Employees

Just like most legal claims, deadlines are extremely important. In most jurisdictions, employees have either 180 or 300 days to file a Charge of Discrimination with the EEOC. Federal government employees need to be aware that their deadlines can often be much shorter — even merely a few weeks after the adverse employment action occurred. For example, claims of discrimination must be initiated with the employing agency’s EEO office within 45 days of the discriminatory action.

Common reasons used by agencies for discipline or removal?

Agencies may discipline an employee “only for such cause as will promote the efficiency of the service.” The agency has the burden of proof to show that its action meets this standard. There is no requirement that an employee must have violated a specific written policy, but the agency must provide a rational basis for discipline — and preponderant evidence to support its position.

Common reasons for discipline or removal include:

• Unapproved Absenteeism or Tardiness: Chronic absenteeism and tardiness account for the largest number of adverse actions in federal government.
• Refusal to Accept Reassignment: The government has broad discretion to reassign employees to different locations and duties.
• Conflict of Interest: Federal employees must avoid situations that compromise, or even give the appearance of compromising, their duties as agents of the government.
• Failure to Maintain a Condition of Employment:  For example, your job may require a security clearance or a certain professional license.

Which federal employees can appeal adverse actions to the MSPB?

The Merit Systems Protection Board (MSPB) hears appeals in the case of a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less “for cause that will promote the efficiency of the service.” The MSPB also hears appeals of removals and demotions due to alleged poor performance.

Federal employees with a right to be heard include:

• Competitive service employees who are not serving a probationary period under an initial appointment, or have completed one year of current continuous service other than under a temporary appointment of one year or less;
• Preference eligible (i.e., former military service) employees in the excepted service who have completed one year of current continuous service in the same or similar positions in an executive agency, or in the U.S. Postal Service or Postal Rate Commission; and
• Excepted service employees who are not serving a probationary period under an initial appointment pending conversion to the competitive service, or who have completed two years of current continuous service in the same or similar positions in an executive agency other than under a temporary appointment of two years or less.

Yes, a bit confusing. Our whistleblower attorneys can help determine whether it applies to you.

Categories of federal employment — and how do they affect rights?

There are five general categories of federal employment, with various other special categories based on position or agency:

Competitive Service

Competitive service positions are government jobs covered by the Civil Service Reform Act. Applicants for the competitive service must compete with other applicants under the merit system administered by the Office of Personnel Management (OPM). An employee with competitive status may be transferred or promoted without having to compete with other applicants, however.

Excepted Service

Excepted service positions are any federal or civil service positions that fall outside of the competitive service or the Senior Executive Service either by statute, Executive Order, or OPM action. Excepted service allows certain agencies to hire when it’s unfeasible to use traditional competitive hiring procedures.

Examples of excepted organizations within the federal workforce include the U.S. Department of State, the Central Intelligence Agency, and the Federal Aviation Administration. Unlike an employee in the competitive service, an excepted-service employee cannot move between agencies without going through the OPM hiring process.

Senior Executive Service (SES)

These are non-presidential appointed positions, primarily managerial and supervisory jobs. Senate confirmation is not required. SES positions correspond to flag officers in the military (e.g., generals and admirals).

The MSPB has a separate set of rules and procedures specific to SES positions that are more limited than those for competitive service employees.

Political Appointments

Political appointees are any employees who have been appointed by the President, Vice President, or an agency head. As such, political appointees work at the pleasure of the President and do not have the same appeal rights that other federal employees have.

Certain appointed positions have been excepted from the competitive service by reason of their confidential, policy-determining, policy-making, or policy-advocating character.

Title 38 Employees

Title 38 of the United States Code is used to appoint medical professionals at federal agencies such as the Veterans Health Administration or National Institute of Health.

The rights of Title 38 employees differ significantly from other federal employees. For example, Title 38 employees cannot appeal adverse actions to the MSPB. They do, however, still have whistleblowing and EEO protections.

Our firm represents many Title 38 employees.

Intelligence Community Employees

The U.S. Intelligence Community (IC) is comprised of 18 organizations, including the CIA, NSA, FBI, and more. IC employees have more limited rights than some other federal employees.

Employees of the IC do not have whistleblower protections outside of their employing agencies. Each employing agency has their own internal whistleblowing procedures. Similarly, they do not have the same MSPB appeal rights as other competitive service employees would.

The only exception are IC employees who are preference eligible veterans. They are able to appeal adverse actions.

Postal Services Employees

Employee rights for people who work in the U.S. Postal Service are affected by their position and duties. Non-supervisory employees would not have the right to appeal adverse actions to the MSPB. However, as with IC employees, preference eligible employees do retain some of the additional appeal rights. Also, supervisory employees do have appeal rights, depending on their specific duties.

I’m a probationary employee. Do I have the right to appeal an adverse employment action?

It depends on the action and the reason behind it.

A probationary employee may appeal certain actions based on:

• Past service.
• Improper motivation, including political partisanship, marital status, and past or present military service.
• An individual right of action, prohibited personnel practice complaint, or the provisions of various civil rights laws.

There are many factors to consider when thinking of what rights you have as a federal employee and what avenues are available for you. The nuances and exceptions can be a lot to keep track of. We always recommend reaching out to an attorney , so that we can help guide you through the process of obtaining justice.