The first months of the Trump Administration have wreaked havoc on the federal workforce. Many dedicated employees have been terminated, laid off, offered “buy out” packages and the status of the “survivors” is uncertain. I worked for the federal government years ago when federal employees thought that they were secure in their job. Much has changed !!! Fairly recently, Pres. Trump issued Executive Orders that ended collective bargaining rights for employees of 17 government agencies that he claims has “sufficient national security roles” to qualify under a law allowing the suspension of union rights at such agencies. That law is the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 7103(b)(1) which allows the President to exclude agencies with "primary functions" involving "intelligence, counterintelligence, investigative, or national security work" from collective bargaining protections. AFGE and other major federal unions have challenged Trump’s Executive Order in federal district courts and these cases are on appeal. It has been reported that the Administration has “quietly” canceled the collective bargaining agreements with other agencies including the EPA, Dept of Agriculture, the Coast Guard, Citizenship and Immigration Services and FEMA. More to come … So, where does this leave federal employees in terms of being able to protect their jobs?

Employee Investigations and Proposed Disciplinary Actions

Federal employees facing proposed disciplinary actions have the right to a written notice detailing the specific reasons for the proposed action and the proposed penalty (e.g., suspension, demotion, or removal). Employees have the right to respond to the proposed action, both orally and in writing, and to be represented by an attorney, union official or another designated person. The response should address the charges, present evidence in defense, and include mitigating factors. After a response is submitted, the Deciding Official reviews the employee’s response and supporting evidence. If the Agency moves forward with the disciplinary action, the employee has the right to appeal the decision to the Merit Systems Protection Board (MSPB) if the disciplinary action is an “adverse action” (a removal, suspension of 14 or more days, a reduction in pay or grade (demotion) or a furlough of 30 days or less). If the disciplinary action is a suspension of less than 14 days or a lesser action, the employee can file a union grievance if the collective bargaining agreement with their union has not been cancelled and remains in effect. The employee can also file an informal complaint with their Agency’s internal EEO Office if s/he believes the disciplinary action was for a discriminatory reason.

MSPB

Federal employees who are terminated, suspended for 14 days or more or who suffer certain other adverse actions such as a demotion or furlough have the right to appeal these actions to the Merit Systems Protection Board (MSPB) or to a federal court. MSPB and federal court proceedings are quite complex and time sensitive and it is strongly advised that you be represented by an experienced and skillful wrongful termination lawyer who can protect your interests as a government employee. A termination especially can have huge consequences for your career.

Like trials before a federal court, a hearing before an Administrative Law Judge (ALJ) of the MSPB is preceded by pre-hearing discovery including depositions. At the hearing, the employee has the right to present evidence and witnesses, and cross-examine the government’s witnesses, to try to convince the ALJ (and ultimately the MSPB) to overturn the government’s decision to remove, suspend or take other adverse action against the employee. These hearings like federal court trials are formal in nature and the Federal Rules of Evidence apply. Appellants who are dissatisfied with an initial decision of the MSPB may seek review with the U.S. Ct. of Appeals for the Federal Circuit in Wahington, D.C. or with the three members of the MSPB in D.C., who issue a final decision.

Do not go it alone, retain an experienced lawyer to handle your MSPB appeal. Deborah has represented numerous federal workers before the MSPB. Schedule an appointment with Deborah to discuss your case.