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Federal Employment and Labor Law Blog

Was the removal fair, or was it retaliatory?

Many federal employees are motivated largely by their devotion to the public good. They show this devotion when they choose to work for their nation instead of working in more lucrative private sector jobs. Many also show it when they report agency abuses at their own risk.

They file their reports even though they know they may face whistleblower retaliation. Such retaliation may be illegal, but it is also regrettably all-too-common. Whistleblowers may be fired, taken off key projects or shunted into dead-end career tracks. Worse yet, agencies and employers often get away with these actions by framing them as legitimate discipline. But a recent federal court ruling may give employees more power to fight back.

How many federal employees win their cases with the MSPB?

You have certain rights as a federal employee that are supposed to ensure you don’t fall prey to unfair discipline. One of these is the right to respond to any proposed discipline before it’s implemented. If you make a compelling argument, you might be able to reduce or avoid the proposed action. If that doesn’t work, you can challenge the action before the Merit Systems Protection Board (MSPB).

But how often does the MSPB side with the employees in these disputes? Not very often. According to Government Executive, federal employees won only 3% of all the cases brought before the MSPB in the past three years. The MSPB denies that this is a problem, stating that the numbers overlook several important facts.

Separating your federal career from your old one

There’s a key difference to working inside the government versus working outside of it. Outside the government, businesses focus on profit. They chase after it with a naked, unabashed thirst, pausing only to make sure they pay heed to the rules and—sometimes—their customers’ long-term interests. But inside the government, you work for the people. Even if that means passing up some opportunities.

That’s a lesson that one Senior Advisor to the Secretary at the U.S. Department of Agriculture should have learned. But it appears she might not have. According to ProPublica, the Senior Advisor had been a lobbyist for CropLife America before she joined the government. Once she entered the public sphere, she signed an ethics statement in which she agreed for one year to avoid any business with CropLife or parties she knew CropLife represented. However, her emails suggest she may have crossed that line.

Why 200,000+ federal employees have limited due process rights

Normally, when federal employees are disciplined, they can take their case to the Merit Systems Protection Board (MSPB). The MSPB listens to an employee’s claim, weighs it against the agency’s argument and then offers a decision. It’s a step to make sure federal employees are treated fairly. But many employees have long been denied the chance to take their cases to the MSPB.

Over 200,000 employees in the Department of Defense may currently be denied this right in the interests of “national security.” This is the case even for employees whose positions are designated noncritical sensitive.

Were you clearly more qualified than the applicant who got hired?

There’s no lack of stories about “the job that got away.” Depending on the job, a company or agency might review dozens or hundreds of applications for a single position. But in the end, the job usually goes to just one person. That leaves everyone else to wonder why they didn’t get it.

This is still true for federal applications, even though they’re often different than private sector applications. The process is generally more structured. There are all kinds of rules to ensure that the best, most qualified candidate gets the job. Yet there are still some people who try to cheat those rules.

Could legal hemp put your security clearance at risk?

Just because something is legal doesn’t mean it’s a good idea. This is even more true when the legal product is almost the same as one that’s still illegal.

Government Executive recently pointed out that CBD oils are often loosely regulated—or completely unregulated. Manufacturers often fail to list their product’s THC levels. Buy the wrong product, and you might find yourself in possession of marijuana instead of hemp. This could be trouble for anyone, but it could be a disaster for federal employees who need to maintain their security clearances.

TIME magazines names federal employees its Guardians of the Year

As 2019 drew toward a close, TIME Magazine offered the American public a rare look at the public servants who keep the nation running. Typically tucked away in their offices and focused on their work, career federal employees bring a wide array of skills and expertise to their jobs. They may serve under multiple administrations, regardless of political affiliations, and they don’t often make the news.

That changed in 2019 when impeachment hearings drew several of these employees squarely into the national spotlight. As TIME noted, these people didn’t want the attention they were given, nor did they want to cause trouble. But like all federal employees, they had sworn to uphold the Constitution of the United States. For their efforts to honor their oaths, TIME Magazine named them its Guardians of the Year.

How your response to proposed discipline can help or hurt you

What’s the difference between being overburdened at work or being inefficient? Sometimes it’s just a matter of perception. You might believe you have too much work to complete in the time you’re given. Your supervisor may think you’re not working fast enough. Sometimes you can work things out. Sometimes your difference of opinion may lead to disciplinary action.

For decades, federal agencies have struggled to keep pace with their growing workloads. At the same time, federal employees may soon come under greater pressure to meet new standards or face possible discipline. In those cases—if someone issues you a proposed discipline—you need to know how to respond. Especially while agencies are under pressure to move more quickly on their disciplinary actions.

Whistleblowers must be careful with classified materials

Whistleblowers have been in the news a lot of late. Some have received ongoing national attention. Others have seen their cases resolved with almost no fanfare. Some of these whistleblower cases have highlighted the handling of classified materials.

One of these cases involved a would-be whistleblower in the Air Force. As FedSmith.com recently reported, the whistleblower was removed from his position after sending classified materials to several agencies, public officials and media outlets.

Has the Hatch Act lost its teeth?

Back in June, the Office of Special Counsel claimed that White House advisor Kellyanne Conway had violated the Hatch Act. They recommended she should be removed from her post. But six months later, Conway is still working for the White House. It seems unlikely she will face censure anytime soon.

Does this mean the Hatch Act has lost its teeth? Not quite. There are plenty of reasons federal employees should still heed the law.

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