Protections are in place to help better ensure superiors judge the work of federal employees based on performance. Schedule F, created by President Trump, put these protections at risk. As discussed in previous posts, this executive order established a new classification system for tens of thousands of federal employees. It was set to move these workers from exempt to non-exempt — meaning transferred workers would suffer a loss of these protections and the ability to appeal disciplinary actions through the Merit Systems Protection Board (MSPB).
Although rescinded by President Biden, the executive order continues to cause problems within the federal employment sector.
A recent case provides an example. The Housing and Urban Development Department (HUD) hired Lois Starkey in 2017 as a manufactured housing specialist. She came to the position with extensive job experience. Shortly after the hire, an industry trade organization began filing complaints due to the new hire’s political affiliations. The agency ultimately terminated her from her position despite the fact that her superiors had given her exemplary performance appraisals.
Ms. Starkey fought back and took the case to the MSPB where an administrative judge ruled in her favor. Upon review, the judge found the General Deputy Assistant Secretary for Housing’s decision to terminate Ms. Starkey was wrongful because it was the result of outside pressure and politically motivated. The agency appealed the initial decision. The MSPB denied the petition and affirmed the initial decision granting the appellant various legal remedies including reinstatement and backpay.
Unfortunately, this type of case is not uncommon. Schedule F, a statutory loophole that essentially allowed for the conversion of federal jobs to political appointments put worker protections and job security at risk. This case highlights that workers continue to feel its impact years after it was rescinded. Two things to note from this case include the following.
#1: MSPB is reviewing these cases
Although well established for tenured federal employees, there are instances when even probationary workers can get similar protections. This can include cases connected to political affiliation, as was true in this example.
#2: A battle is likely
What happens when executive orders conflict with established law? Generally, established law wins. But, as noted during a recent interview between Don Kettle, former dean of the School of Public Policy and professor emeritus at the University of Maryland, proponents of Schedule F are likely prepared to battle this stance if a change in administration leads to a renewal of this executive order.
Bonus: Application to similar cases
This example provides an opportunity to highlight a common theme to these types of cases: federal employment laws are not easy to navigate. At their core they are difficult but add in the fact that they are constantly evolving, and it can be frustrating for even the most experienced of federal employees to fight to ensure their rights are protected.
Thankfully, those who are in this situation do not have to go through the process alone. You can seek legal counsel to review the situation and advocate for your interests.