One advantage federal employees have compared to private sector employees is that if they are subject to an adverse action, a specific set of due process rights apply.
Due process for federal employees requires that they receive 30 days advance notice of an adverse action, access to review the evidence against them; and have the right to appeal. If an agency suspects an employee of a crime, 7 days written advance notice is required, and the employee can respond.
The Merit Systems Protection Board (MSPB) recently issued a report to clarify the procedures to fire a federal employee. According to MSPB Chairwoman Susan Tsui Grundmann, the report’s goal is to clear up any misconceptions about due process rights for federal employees.
“Due process is available for the whistleblower, the employee who belongs to the ‘wrong’ political party, the reservist whose periods of military service are inconvenient to the boss, the scapegoat, and the person who has been misjudged based on faulty information,” wrote Grundmann in the report.
In an interview, she stated that constitutional due process does not require that employees who engage in misconduct or perform poorly be allowed continued federal employment. Nor does it prohibit an agency official from taking action within the confines of the law.
However, not all federal employees have the same level of due process rights. According to the American Federation of Government Employees (AFGE), “The Department of Defense (DoD) has free rein to fire 200,000 employees for any or no reason. And these employees can get no relief — even if they are whistleblowers being terminated for exposing waste, fraud, and abuse. If this sounds horrible, it is. That’s why AFGE is urging Congress to pass a bill that has just been introduced in the House to protect federal employees’ rights.”
Delaware Congresswoman Eleanor Holmes Norton reintroduced the bill, H.R. 5560. The purpose of the bill is to give workers in “noncritical sensitive positions” who do not work on classified matters the right to an independent review of agency decisions to remove workers.
According to Norton, these due process rights were stripped away in 2013 by the U.S. Court of Appeals for the Federal Circuit in Kaplan v. Conyers and MSPB.
In 2009, the Department of Defense (DoD) fired accounting technician Rhonda Conyers and demoted commissary worker Devon Northover. This happened after DoD determined that they were ineligible to serve in sensitive positions due to their financial status as a result of their delinquent debts.
The AFGE represented them before the MSPB, and AFGE won. MSPB overrode the DoD’s decision. The DoD appealed the MSPB’s decision to the United States Court of Appeals for the Federal Circuit, which ruled MSPB could not determine the eligibility determination of the DoD.
This could have a serious effect on some employees. According to a press release from Norton’s office, “The decision would affect at least 200,000 DoD employees who are designated as noncritical sensitive. Even more seriously, most federal employees could potentially lose the same right to an independent review of an agency’s decision because of a rule by the Office of Personnel Management (OPM) and the Office of the Director of National Intelligence (ODNI), which went into effect in July 2015, that permits agency heads to designate most jobs in the federal government as noncritical sensitive.”
The press release also states, “Stripping employees whose work does not involve classified matters of the right of review of an agency decision that removes them from their jobs opens entirely new avenues for unreviewable, arbitrary action or retaliation by an agency head and, in addition, makes a mockery of whistleblower protections enacted in the 112th Congress.”
“This 2013 court decision, in Kaplan v. Conyers, must be overturned to ensure all federal employees have the right to a third-party review of agency actions that could cost them their jobs,” said AFGE National Secretary-Treasurer Everett Kelley. “Thankfully, Rep. Norton has the right solution. I urge lawmakers to move swiftly to enact this important legislation, and stop this egregious violation of law and basic employee protections.”
Article authored by and containing the opinions of Starr Wright USA. This article is offered solely for informational purposes. Starr Wright USA is a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. For more information, visit wrightusa.com. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc.