Navigating the EEO process for congressional employees

The Capitol

Federal government employees have to follow a specific procedure to file an EEO complaint of discrimination or retaliation.  The EEO process for employees within the legislative branch of government is unique from the process for other government employees.

Where do I file my EEO complaint?   

The Office of Compliance (OOC) is charged with processing EEO complaints for most legislative employees, including those employed by:

  • S. House of Representatives
  • S. Senate
  • S. Capitol Police
  • Congressional Budget Office
  • Office of the Architect of the Capitol
  • Office of the Attending Physician
  • Office of Compliance and
  • Office of Congressional Accessibility Services.[1]

What do I do first?

You must file a request for counseling with OOC within 180 days of the act of discrimination, retaliation, or harassment.  Identifying your claims is critical because only claims specifically listed in the request for counseling may proceed through the EEO process.

The counseling period lasts for 30 days.

What happens after counseling?

After the counseling period, you have 15 days to file a request for mediation with the OOC.   Mediation is a mandatory settlement conference between you and your employer.  During mediation, a mediator will attempt to resolve the complaint.

What do I do if my case doesn’t settle at mediation?  

If you do not reach a settlement at mediation, you may file a lawsuit in federal district court.  You must file a lawsuit no earlier than 30-days after the end of mediation, but no later than 90-days after mediation concludes.  Alternatively, you may file a request for a hearing before a hearing officer at the OOC.

Should I request a hearing or file a lawsuit?

This is an important decision that depends on a variety of factors including the facts of your case, the defense arguments raised at mediation, and general case strategy.  Making this decision requires the expertise of a lawyer who has argued before both hearing officers at the OOC and federal district court judges.

The legislative branch process is very technical and separate from how EEO complaints are processed in the executive branch.  Contact Alan Lescht and Associates today if you are a legislative employee who has been subjected to discrimination, harassment, or retaliation.

 

[1] Library of Congress (LOC) employees follow a different process.

Employees have rights when facing proposed discipline

Federal employees have rights when they receive a notice of proposed discipline, such as proposed removal, proposed demotion, or proposed suspension of more than 14 days.

Except in certain circumstances, most federal employees are entitled to certain protections before they can be removed, demoted, or suspended for more than 14 days. Most federal workers have the following rights when they are facing one of these disciplinary actions:  (1) the right to written notice; (2) the right to review the evidence; (3) the right to representation; and (4) the right to respond.  5 U.S.C. § 7513; 5 C.F.R. § 752.404.

The right to written notice of proposed discipline

Before removing, demoting, or suspending an employee for more than 14 days, the agency must give the employee a written notice of the proposed discipline.  The notice of proposed discipline must describe the allegations against the employee (i.e., what type of misconduct or performance issue the employee is accused of) and what penalty the agency proposes to impose.

The right to review the evidence

The employee has the right to review any documents and any other evidence the agency relied upon in proposing the disciplinary action.  This evidence is frequently called “the documents relied upon” or “the record.”  Sometimes the proposing official or HR will automatically give the employee the documents relied upon.  However, the employee should ask for the documents and ask the agency to confirm that he/she received all of the documents relied upon.

The right to representation

The notice of proposed discipline should also state that the employee has the right to representation.  This means that the employee may enlist or retain a representative to aid him/her in responding to the notice of proposed discipline.  The representative may be a union representative, a private attorney, or any other person.  The employee should notify the agency that he/she has a representative connected to the proposed discipline.

The right to respond to the notice of proposed discipline

employee discipline

An employee has the right to respond in writing and orally to a notice of proposed removal, demotion, or suspension for more than 14 days.  The agency must give the employee a “reasonable” amount of time (i.e., not less than 7 days) to respond.  The notice of proposed discipline should state when the employee’s response is due.  An employee may ask the deciding official for an extension of time to submit his/her response.  The employee may submit his/her own evidence, including but not limited to statements or declarations from witnesses, with the written or oral response.

Contact Alan Lescht and Associates, P.C., today if you are a federal employee who received a notice of proposed removal, proposed demotion, or proposed suspension for more than 14 days.  We offer strategic and results-driven legal services to federal government employees around the world.

Whistleblower protections under the Follow the Rules Act

On June 14, 2017, President Trump signed into law the Follow the Rules Act, an important extension of the Whistleblower Protection Act (WPA).

Background of the Follow the Rules Act

The WPA protects federal government employees from retaliation for complaining about the government’s dishonest or illegal activities. In 2016, the U.S. Court of Appeals for the Federal Circuit made a decision interpreting the WPA in Rainey v. Merit Systems Protection Board. The court held that the WPA protects employees who refuse to obey orders that would require violation of statutes. However, the WPA does not protect employees who refuse to obey orders that would require violation of rules or regulations.

Additional whistleblower protections

The Follow the Rules Act overturns the Rainey decision and gives employees more protections. Agency can’t take personnel actions against employees who refuse orders that would require violations of laws, rules, or regulations.

In introducing the bill last year, Congressman Sean Duffy (R-WI) gave the following example:

Congress directed the President to promulgate rules and regulations regarding sanctions against North Korea. Without the Follow the Rules Act, employees who refused to follow orders to violate North Korea sanctions would have no whistleblower protections.

Representative Gerry Connolly (D-VA) said, “[W]e need to do all we can to ensure that federal employees are allowed to perform their jobs free from political pressure to violate laws, rules, and regulations.”

If your employer took an adverse personnel action against you for complaining about illegal or improper activity, contact Alan Lescht and Associates today. We offer results-driven legal services to federal employees around the world.