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New MSPB hearing regulations go into effect

U.S. Merit Systems Protection Board (MSPB) has completed a substantial revision to its adjudicatory regulations for federal employee's hearings. The revision process began in early 2011 and the final rule was published on October 12, 2012. The effective date of the rule is November 13, 2012.

These rules and procedures are being revised "to improve and update the MSPB's adjudicatory processes." This is the first change to these regulations in 30 years, and while the published rules occupied 27 pages in the Federal Register, they generated 105 pages of comments during the rulemaking process.

The new rules will apply to all employees in all federal agencies, but the MSPB expects the transition to proceed smoothly. The process is complex, which as the MSPB, notes, "The complexity of notices is a product of the complexity of the law governing Federal employees."

One significant change will affect whistleblowers, as now the MSPB will limit the types of appeals in retaliation cases. Under the relevant statute, an employee has three options.

Regulations require agencies must "fully notify" employees of their rights when claiming that they have been subject to a reprisal for whistleblowing, which will allow them to make "an informed choice among the available 3 options."

This is necessary because depending on option chosen, you may lose significant rights. Given these changes, if you may be involved in a MSPB hearing, you should speak with an attorney experienced in handling MSPB actions.

Source: U.S. Merit Systems Protection Board, "MSPB Revises Its Adjudicatory Regulations," October 12, 2012

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