Are federal workers just faceless bureaucrats?

“Federal employees support our troops stateside and abroad, fight crime and terrorism and protect our borders. They combat forest fires, inspect our roads and bridges and ensure our aviation system is the safest in the world. They guard and enhance our national parks and lands, guarantee seniors receive their Social Security benefits and process and deliver mail to every address in every type of weather.”

The answer to the question posed in the title of this post is an emphatic “No!”

Kori Keller, in an opinion published on The Hill, laments President Trump’s executive order that put a hiring freeze on federal workers. We’ve covered this in our handy infographic on the hiring freeze, but Keller makes a few interesting points, such as that federal workers represent only 1.9 percent of the national workforce. And, contrary to Trump’s rhetoric about “draining the swamp,” these 1.9 percent of federal workers aren’t just in D.C. – they’re all over the country performing vital functions.

Think mail carriers and forest rangers and firefighters. It’s not “just” those who work in office settings (which, by the way, is also the setting of millions of Americans working in the private sector).

As we wrote on our infographic post (see link above), there could be many unintended consequences to federal employees, even those who still have jobs, which brings us to the next point in this post.

At-will employment in the federal sector?

If this executive order was the first step in the Trump administration’s efforts to “drain the swamp,” you’ll now find in the National Review a call to make all federal employees fire-able. “There shouldn’t be a permanent bureaucracy that can thwart the will of a president,” Grant Starrett argues. “Congress should pass a law to make all federal employees serve at will – just like Americans in the private sector.”

In his article, Starrett makes lots of references to faceless “bureaucrats,” as though they weren’t those who Keller defends. It’s one opinion against another, but when it comes to treating people with dignity, and not assuming they’re part of a swamp, Keller’s opinion and others like it should win out every time.

Read more:

No such thing as nepotism in the Trump administration

Politico reports that the Justice Department has “blessed” the appointment of President Trump’s son-in-law Jared Kushner to a position as senior adviser in the White House, saying, in effect, that federal anti-nepotism law does not apply.

It seems to apply just about everywhere else – just not the White House.

What is nepotism, anyway?

Merriam Webster defines nepotism as favoritism based on kinship. In nepotism, a person in a position of power appoints or hires a family member wholly or in part because of those family ties.

In this case, Trump seeks to appoint Kushner to a senior adviser role, in which, among other things, Kushner would apparently work to resolve the Israeli-Palestinian conflict.

Is the President a public official?

Of course he is. Even the anti-nepotism law says so. In general, this law places hiring restrictions on public officials. And, yes, “public officials” includes the President and Congressional members.

Under 5 U.S. Code § 3110: “A public official may not appoint or employ […] in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.”

The language seems relatively clear, but like many laws (perhaps most), this one is subject to interpretation. It so happens that, in this case, the Justice Dept. interpreted the law in favor of the Trump administration. Its 14-page opinion argues that the law does not apply to the White House itself, as Politico reports, citing a 1978 law that gives the President wide latitude in appointing White House officials.

What does this mean for everyone else?

It now appears that Trump is free to appoint his son-in-law to a role in the White House, where the 36-year-old Kushner will presumably go from real estate developer to broker of peace among nations. Kushner’s “unwavering loyalty” to his father-in-law (as per Kushner’s Wikipedia page) will undoubtedly be a great asset to the new President.

But that doesn’t mean nepotism isn’t at issue here, at least where the law is concerned.

After all, it’s highly unlikely that Mom or Pop, as public officials in any other agency in any other place in the U.S., could so readily hire Son or Daughter to serve as a government employee in a similar manner. Doing so would likely violate anti-nepotism law.

Lawmakers work to eliminate federal employees’ due process rights

Jeff Spross’s opinion piece in The Week headlines with a bang (much like most pieces on President Trump) by asserting Trump’s “foolish demonization of public workers,” and this first line: “The so-called ‘greatest jobs president that God ever created’ began his presidency by refusing to hire people.” Spross refers to an executive order that put a freeze on hiring of federal employees, signed on Jan. 23, Trump’s first full day on the job.

But Trump isn’t the only one “demonizing” public workers.

GOP lawmakers, emboldened by the new administration, and by the political reality of controlling both the House and the Senate, are jumping on board as well. Lawmakers are currently working to weaken or eliminate the due process rights of federal employees.

The Holman Rule, revived from the dead

As per the Washington Post, one such example is the Holman Rule, which House Republicans revived from the dead. It allows lawmakers to go so far as to “single out” an individual federal employee, targeting the employee’s pay.

How might this work?

A government scientist studying climate change, for example, who insists on tweeting to the public, against the Trump administration’s orders, may theoretically find his or her pay cut to just $1, effectively ending employment, much like Milton in the movie Office Space.

“[O]pponents and supporters agree that the work of 2.1 million civil servants, designed to be insulated from politics, is now vulnerable to the whims of elected officials,” as Jenna Portnoy and Lisa Rein report for the Post.

A sad state of affairs indeed.

Contact Alan Lescht and Associates today if you believe your due process rights have been violated.

Avoiding nepotism in government employment

Nepotism is common in the private sector – especially among small, family-run businesses. But in government jobs, it’s a conflict of interest that could derail your career.

Nepotism in any form is prohibited among federal employees, and for good reason. The government has an obligation to maintain competitive, open and merit-based personnel practices. Nepotism unfairly shuts out qualified applicants and creates hurdles that shouldn’t exist. As a type of corruption, it’s not only unethical but also illegal, and it can be a criminal offense.

The sometimes blurry boundaries of nepotism

What exactly is nepotism? In the context of the government, it’s any favorable treatment toward relatives that compromises fairness, integrity and neutrality.

Nepotism commonly arises in the employment process. However, it isn’t limited to hiring. It can also come up in contracting, reviewing, inspecting and other dealings with third parties.

While nepotism is more frequent in entry-level government positions, it sometimes extends to higher-level officers. For example, the former director of a government contracting division was recently indicted on fraud charges involving nepotism. She allegedly pressured a contracting company to hire her husband, brother, sister-in-law and father – all for comfortable salaries.

Navigating gray areas

Nepotism isn’t always obvious, and it isn’t always done with bad intentions. Government employees might cross into a gray area when they express interest in a vacant position on behalf of a relative they believe is well-qualified. Moreover, just because a highly credentialed applicant has a relative working in the same agency shouldn’t mean that person is ineligible.

The Merit Systems Protection Board (MSPB) has provided general guidance on how to navigate these sticky situations. The MSPB urges employees to always err on the side of honesty and transparency. Employees should disclose potential conflicts to the appropriate ethics office and recuse themselves when needed.

Yet these standards aren’t always clear-cut. For example, there is no consistent guidance on when an optional disclosure form should be used to identify whether job applicants have relatives in the same agency. And even those who follow the MSPB’s guidelines could come under fire later. As attorney Alan Lescht noted in a recent article, employees might submit full disclosures and maintain total transparency, yet these could still get overlooked in the shuffle of bureaucracy.

Steering clear of impropriety with big changes ahead

Ongoing training and more detailed guidance are essential for helping federal employees steer clear of impropriety. As the change in our nation’s presidential administration approaches – bringing massive staff turnovers and thousands of new appointment opportunities – the need for straightforward, easy-to-follow procedures will intensify.

The bottom line: Transparency shouldn’t be difficult to attain for employees, officers, managers and other government personnel.

How a Trump victory could affect federal employees: Fewer rights, less job security and potentially 20,000-plus layoffs

Presidential candidate Donald Trump is well known for his “Your fired!” catchphrase from the reality TV show The Apprentice. He would live up to that slogan by making it easier to fire federal employees if he gets elected in November.

New Jersey Governor Chris Christie, who heads Trump’s White House transition team, told the press that Trump believes the process for firing civil servants takes too long and involves too many hurdles. Trump’s administration cited concerns that Obama would convert political appointees to civil servants, granting them greater job security and equal pay rights.

Employment rights for civil servants: Rooted not just in the law, but also in the Constitution

Government employees have due process rights when it comes to losing their jobs. These rights – which are rooted in the Fifth Amendment to the U.S. Constitution – include a requirement for just cause and an opportunity to challenge the firing.

The Civil Service Reform Act of 1978 (CSRA) further outlines the procedures for firing, disciplining and demoting federal employees. Passed several years after the Watergate Scandal, this law established the Office of Personnel Management and the Merit Systems Protection Board. Both agencies play important roles in protecting the rights of federal employees.

Big changes for federal employees if Trump gains the White House

It’s unclear how, exactly, Trump would change existing federal employment procedures. However, Trump’s previously announced policies would impact government employees in key ways:

Although the details of these proposals have yet to be outlined, one thing is clear: A Trump victory in the November election would have a major impact on federal employees at all levels.

Feds issue ‘first-ever’ social media policy for security clearance determinations

As the Washington Post reports, the Director of National Intelligence has issued a directive that Facebook, Twitter, and other social media platforms will now figure in the government’s investigation of federal employees and would-be employees who are applying (and re-applying) for security clearances.

The Post calls it a “first-ever” policy.

The ‘whole-person’ approach includes looking into social media accounts.

The Post quotes Beth Cobert of the Office of Personnel Management:

“Agencies make security clearance decisions using a ‘whole person’ approach to assessing who is an acceptable security risk. One component of that approach in the 21st century is social media.”

Investigators will look only at info that is ‘readily available.’

Apparently, a key aspect of this new policy is that the government won’t look into everything posted online, nor will it take everything it finds into account in its security clearance determination – though the Post report lacks details as to how this will be policed.

Indeed, some lawmakers are skeptical.

“How will this work?” asked Rep. Gerry Connolly. “How do we flag the serious from the trivia?”

“Alan gave me the information I needed to save my federal career.” – Former client

If you have an issue with your security clearance, consider contacting Alan Lescht & Associates, P.C. Based in Washington, D.C., we regularly represent federal employees facing trouble with security clearances – whether at-risk or suspended/revoked. For more information on our practice, visit this page about security clearances, or call 202-463-6036.

You’ve received a Notice of Proposed Removal. What do you do next?

By sending a Notice of Proposed Removal, your agency is informing you that it intends to terminate your employment. As a federal employee, you have rights. You have the right to show your agency why your removal is unreasonable or unwarranted under the circumstances. It is critical to act quickly.

What are the timelines after a Notice of Proposed Removal?

Unless an employee is believed to have committed a crime, federal agencies must provide a minimum of 30 days notice to any employee who is being removed. Furthermore, the employee must have a reasonable time frame (at least seven days) to respond to the notice. Employees also have the right to an attorney. An attorney will be critical in presenting the strongest possible case in your support.

If an agency removes me, what do I do next?

Federal employees can appeal a removal. Most appeals go through the Merit Systems Protection Board (MSPB). Depending on the circumstances, employees can appeal through the EEO or through a collectively-bargained grievance procedure. An appeal to the MSPB will involve discovery, in which you will have the opportunity to request documentation surrounding your removal and refine arguments in support of your position. Depending on the facts, these arguments could include:

  • The agency made a harmful error in applying its procedures
  • You were fired due to discrimination or on the basis of retaliation for whistleblowing
  • The penalty was excessive, disproportionate or otherwise unreasonable.

You will then have the opportunity to present your case in a hearing before an administrative judge. After getting a Notice of Proposed Removal, your choice of lawyer is a critical decision. With decades of experience in the field of federal employment law, the lawyers of Alan Lescht & Associates have successfully represented federal employees facing all types of actions, including removal. Our firm is ready to begin exploring all potential defenses to your removal. Call 202-463-6036 to schedule a consultation.

Retaliation among most common EEO claims of federal employees

Federal employees facing discrimination, harassment or retaliation in the workplace have the right to bring an Equal Employment Opportunity (EEO) complaint. These complaints can be powerful tools to hold employers accountable and to ensure that federal workplaces are as free as possible of illegal discrimination, harassment or retaliation.

Each year, the Equal Employment Opportunity Commission (EEOC) compiles data on EEO complaints. The most recent report, titled Annual Report on the Federal Work Force sheds light on the most common types of complaints federal employees make.

Retaliation is the biggest issue in EEO complaints

In fiscal year 2014, the most recent year this data was compiled, federal employees filed 15,013 EEO complaints, with many complaints involving multiple allegations. In 2014, federal employees filed 7,018 retaliation complaints. Under federal law, employers cannot take any adverse action against an employee who engages in a protected activity.

Harassment was a common allegation as well. In 2014, federal employees made 6,102 harassment complaints. These complaints do not relate to sexual harassment, but rather other allegations of illegal workplace harassment. Discrimination was frequently alleged as well, with age discrimination being the most common type of claim. In 2014, 4,697 federal employees filed age discrimination complaints. The second most common type of complaint was discrimination on the basis of race, with 3,838 complaints. Disability discrimination was a close third, with 3,817 complaints.

Any federal employee facing retaliation, discrimination or harassment at work should take careful steps to protect themselves. A skilled lawyer will be critical in presenting a powerful case based in the facts and law. Contact Alan Lescht and Associates today if you are a federal employee who has been discriminated or retaliated against.

What Do I Do If The Office Of Inspector General Wants To Interview Me?

The Office of Inspector General (OIG) is a federal agency that investigates fraud, waste and other alleged misconduct, including job nonperformance, by government employees. If you are under investigaiton by the OIG, or are requested to appear at an OIG interview, it is important to know what is at stake. If the OIG believes you are involved in criminal activity, you could be subject to workplace discipline as well as criminal prosecution by the Justice Department for prosecution.

You have the right to an attorney when meeting with representatives of the OIG. It is critical to exercise this right at the earliest opportunity. At Alan Lescht & Associates, P.C., our law firm has a record of vigorously defending the rights of federal employees facing all types of allegations. We understand the unique nature of federal laws protecting employees, and will use this knowledge to protect you.

How Does An OIG Interview Work?

The OIG cannot force you to answer questions; however, your supervisor can discipline you for refusing to do so. Employees can only refuse to answer questions if their answers could be used against them in criminal proceedings. The lawyer you select can make a dramatic impact in the way this matter is resolved.

If you are under investigation, an attorney can help you comply with the investigation while presenting your case in the best light. Should the OIG recommend employment discipline, we can represent you in a hearing before the Merit Systems Protection Board (MSPB).

Contact Alan Lescht and Associates, P.C.

From our office in Washington D.C., we represent federal employees throughout Maryland, Virginia and beyond. Our lawyers and staff will do everything possible within the law to protect your rights and your employment. Contact Alan Lescht and Associates today if you are under investigation by the OIG.

Can a federal employee appeal a forced retirement to the MSPB?

We frequently consult with longtime federal employees who are towards the end of their careers and find themselves dealing with a new and unpleasant supervisor who makes their work life hell.  By the time they get to us the situation at work is bad.  Either the supervisor has issued discipline, rated them unacceptably, or placed them on a PIP.  We are frequently asked if they can claim that they were forced to quit and then pursue a claim against the agency at MSPB.

No MSPB rights unless retirement resulted from intolerable working conditions

MSPB rules hold that in order to state a claim for involuntary retirement, also called a forced removal or constructive discharge, the employee must establish that the retirement was the result of intolerable working conditions.

However, MSPB applies this rule narrowly.  It requires that the employee must show that the agency’s efforts to force the employee out were the result of improper acts by the agency and a forced removal will not be found where an employee retires “because he does not like agency decisions such as a new assignment, a transfer, or other measures that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant … that he feels he has no realistic option but to leave.”  Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013).

There are many avenues available to address problems faced by longtime federal employees.  Don’t go it alone or rely on advice you find from the internet.  Contact Alan Lescht and Associates today if you face these issues and we will put our many years of experience to work for you.