Helping Federal Employees With Employment Law Matters

Are you the victim of workplace discrimination? Have you been subjected to harassment or a hostile work environment? Has your employer subjected you to retaliation for speaking up against wrongdoing? Do you have a medical condition or physical/mental impairment, but your employer has denied you appropriate accommodations to enable you to perform your job successfully? If so, Hoyer Law Group, PLLC, can help!

We represent employees of all kinds – employees of private companies and federal employees – regarding employment matters of all kinds. Fortunately/unfortunately, there are a plethora of laws governing this area of the law, so trying to understand the different nuances therein can sometimes get very confusing. These laws differ significantly when comparing employees of private companies to those of the federal government. Accordingly, depending on whom you work for, you should be careful of whom you entrust to help you through your employment matters. For example, there are very few law firms with the experience and expertise to represent the unique employment needs of federal employees. Hoyer Law Group, PLLC, is one of those select few law firms.

We are more than happy to conduct a consultation with you to discuss the strengths of your employment case. However, short of that, your rights as a federal employee can be summarized as follows:

The Federal Laws

The Civil Rights Act of 1964 marked a significant landmark in civil rights and labor law in the United States. The Title VII of the Civil Rights Act addresses employment discrimination and establishes the notion of Equal Employment Opportunity (EEO). Specifically, Title VII makes it illegal for employers to discriminate against employees or applicants for employment on the basis of race, color, religion, national origin or sex. Title VII also makes it illegal to retaliate against employees for reporting discrimination or for participating in another employee’s discrimination complaint. Subsequently, Title VII has been improved upon by the passage of supplemental legislation making it illegal to discriminate against employees or applicants for employment on the basis of age and disability. This supplemental legislation was enacted by the Age Discrimination in Employment Act of 1967 (ADEA), the Rehabilitation Act of 1973 (Rehab Act) and the Americans with Disabilities Act of 1990 (ADA). In more recent years, Congress and the courts expanded the scope of protected classes also to include pregnancy, sexual orientation, parental status, marital status and political affiliation. The Genetics Information Nondiscrimination Act of 2008 (GINA) also makes it illegal for employers to discriminate against employees or applicants for employment, based on their genetic information/genetic history.

What Does The EEOC Do For You As A Federal Employee?

The U.S. Employment Opportunity Commission (EEOC) enforces these federal acts prohibiting employment discrimination among federal employees. If you work for a federal agency and your employer discriminated against you, you have several options on how to proceed. Your first option is to file an EEO complaint with the agency for whom you work. In doing so, you would need to contact your EEO office within 45 days of the adverse employment action, which you allege was discriminatory. The adverse employment action could include any number of things, including but not limited to:

• Disciplinary action
• Formal counseling
• A letter of reprimand
• Suspension
• Unfavorable performance appraisal
• Termination
• Denied leave
• Denied Family and Medical Leave Act (FMLA)
• Denied request for detail/transfer/reassignment
• Denied training opportunities
• Denied promotion
• Nonselection/referral to a job vacancy
• Countless other actions you might consider adversely imposed based on a discriminatory motive

Once you engage the involvement of the EEO office, you will have an opportunity to participate in counseling with an EEO Counselor and a mediator in an alternative dispute resolution (ADR) who will assist you in attempting to resolve the matter at issue. If ADR is unsuccessful, you can then file a formal EEO complaint. If accepted, in part or in whole, for investigation, an investigator will be assigned to investigate your claim. Following a thorough investigation, the EEO will generate a report of the investigation, at which time you will have an opportunity to appear before an administrative judge at a hearing if you wish to proceed further. From that point forward, you can then appeal your case through the appropriate federal district court.

Alternatives For Federal Employees

Of course, depending on the specifics of your complaint, there are numerous alternatives to the EEO process. You may want to file a complaint with the Office of Special Counsel (OSC) if you allege a prohibited personnel practice or make a disclosure alleging agency wrongdoing. You may want to file a complaint with the Office of Inspector General (OIG) if you wish to report fraud, waste, abuse, misconduct, or gross mismanagement. You may want to file a complaint with the Office of Accountability and Whistleblower Protection (OAWP) if you wish to allege agency misconduct or retaliation for whistleblower disclosures. You may want to file a complaint with the Department of Labor under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 if you allege discrimination due to past, present or upcoming military service. You may want to file with the Merit Systems Protection Board (MSPB) for matters relating to termination or suspension of 14 days or longer. Lastly, you may want to file your claim in the state or federal district court having proper jurisdiction over your matter.

Appealing Adverse Employment Acts For Federal And State Government Employees

Appeal terminations, suspensions, and other adverse acts to the Merit System Protection Board

The Merit Systems Protection Board (“MSPB”) 5 USCS § 1201-1209 is an independent agency within the Executive Branch whose mission is to ensure the integrity of federal merit systems. The Board protects current, former, and prospective federal employees from prohibited personnel practices, also known as PPP. Through its appeal process, the Board ensures that agencies comply with federal regulations and maintain fair employment practices.

The Board operates like a tribunal, conducting hearings, examining evidence, and making decisions. Cases that have failed to resolve through internal agency processes or other federal agencies can be appealed to the Board, so long as they fall within its jurisdiction. The Board can provide federal employees a vital pathway to appeal unjust agency actions and decisions.

The MSPB’s Jurisdiction

The MSPB’s jurisdiction is rather extensive and covers most federal employees. However, the Board is limited because it can only hear appeals for specific adverse actions. Actions within the jurisdiction of the Board are specified in 5 USCS § 1204 as:

• Reduction in grade or removal for unacceptable performance;
• Removal, reduction of pay, demotion, or suspension for more than 14 days, or furlough for 30 days;
• Determination affecting the rights or interests of an individual under the Civil Service Retirement System or the Federal Employees’ Retirement System;
• Disqualification of an employee or applicant due to a suitability determination;
• Termination of employment during probation of the first year of a veterans readjustment appointment or a managerial probationary period when the employee alleged discrimination due to political affiliation or marital status;
• Failure to restore, improper restoration of, or failure to return following a leave of absence an employee of an agency in the executive branch after recovery from a compensable injury;
• Employment of another applicant when the appellant is entitled to employment consideration after a reduction in force action or recovery from a compensable injury;
• Failure to reinstate a former employee after service under the Foreign Assistance Act, after movement between executive agencies during an emergency, after detail or transfer to an international organization, or employment under the Taiwan Relations Act;
• Employment Practices administered by the Office of Personnel Management (“OPM”) to examine and evaluate the qualifications of applicants for appointment in the competitive service; and
• Reduction-in-force actions affecting a career or career candidate appointee in the Foreign Service.

The Board does not typically handle discrimination cases unless they directly relate to the actions mentioned above. Instead, most discrimination cases must go through the Equal Employment Opportunity Commission (“EEOC”), the OPM, collective bargaining agreements (union grievances), or the Office of Special Counsel (“OSC”) before the cases can be appealed to the Board.

Additionally, there are several exceptions to the Board’s jurisdiction concerning the Whistleblower Protection Act, Presidential and Executive Office Accountability Act, Uniformed Services Employment and Reemployment Rights Act, and Veterans Employment Opportunities Act. These exemptions require employees protected by these Acts to exhaust all administrative pathways under the applicable Act. If these pathways fail to resolve the matter, the matter can then be appealed to the MSPB.

The MSPB’s Appeal Process

When an agency takes an appealable action against an employee, it must provide them with the following:

• A notice of the time limits for appealing to the Board;
• The address of the appropriate Board regional or field office for filing the appeal;
• A copy or access to a copy of the Board’s regulations;
• A copy of the Board’s appeal form;
• Notice of any rights concerning the agency grievance procedure or a negotiated grievance procedure; and
• Notice of any right to file a complaint with the EEOC.

If an action falls within the jurisdiction of the MSPB and an employee wishes to pursue an appeal, they can begin the lengthy filing process. Appeals must be filed in writing with the Board’s regional field office serving the area where the appealable action occurred. Appeals to the MSPB must:

• Be filed within 30 calendar dates of the effective date of the action or 30 days after receipt of the agency’s decision;
• Include the name, address, and phone number of the appellant and agency:
• Contain a description of the action the agency took and its effective date;
• Contain a request for hearing if the appellant wants one;
• Contain a statement of the reasons why the appellant believes the action is wrong;
• Contain a statement of the action the appellant would like ordered;
• Include the name, address, and telephone number of the appellant’s representative, if they have one;
• Contain a copy of the notice of proposed action, the agency being appealed, and any notice of personnel action when applicable;
• Contain a statement indicating whether the appellant or anyone acting on their behalf has filed a grievance or formal complaint with the agency regarding the matter; and
• Include the signature of the appellant and their representative (if they have one).

After the Board receives an appeal, the case is assigned to an administrative judge. Once it’s established that the matter falls within the Board’s jurisdiction, appellants have the right to a hearing. Appellants can proceed with a hearing or choose to have the appeal decided based on the written record alone.

After an appeal is filed, the agency must prove that it was justified in taking action unless it’s established:

1. that there was a harmful error in the agency’s procedures;
2. that the agency decision was based on a prohibited personnel practice; or
3. that the decision was not in accordance with the law.

On the other hand, the appellant has the burden of proving that the action is both within the Board’s jurisdiction and that it was taken as a result of PPP.

Judges can dismiss appeals if they deem the matter to not be within the Board’s jurisdiction or if it’s not filed within the deadline and good cause for the untimely filing is not shown. Both parties can voluntarily settle appeals that are not dismissed. The judge can affirm, reverse, or mitigate the agency’s action for appeals not resolved by the parties.

How can we help?

Here at Hoyer Law Group, PLLC, our experienced federal employment attorneys can determine if you were the victim of an appealable action, assist you in filing an appeal, and represent you before the Board. If you need assistance filing an appeal to the MSPB or need guidance regarding any other employment matter, call (800)-651-2502 or contact us online.

Appeals to state administrative review boards and tribunals

In addition to federal agencies, many states have their own employment-related agencies. Employment boards vary wildly between states, with some offering extensive employee protections similar to the federal EEOC. In contrast, others offer no employee protections and simply seek to foster economic development.

For example, the California Department of Fair Employment and Housing has the mission to ensure equal employment practices, safe working conditions, and compliance with state wage and medical leave legislation. In addition to employment, the Department also ensures fair housing practices and prevents discrimination at businesses under California’s Unruh Civil Rights Act. The New York State Department of Labor has a more traditional role that focuses on maintaining wage, salary, and leave standards while also hearing claims for employment discrimination.

Just because a state has an employment commission does not necessarily mean that it offers protections for employees or pathways to report prohibited employment practices. For example, the Florida Department of Economic Opportunity handles issues of unemployment benefits but does not hear discrimination, retaliation, or wrongful termination cases.

Other state employment boards exclusively handle discrimination, termination, and retaliation complaints from state or local government employees. The California State Personnel Board is one such state employment board tasked with overseeing state employees’ merit-based recruitment and employment practices. The Board also hears appeals from employees for adverse actions from state agencies and investigates alleged violations of civil service law.

It is important to consult with an attorney to understand what rights, if any, are awarded to you by a state employment board. If an employment board indeed protects you, then we can assist in the filing process, which varies based on the nature of the claim, the Board to which the claim is being submitted, and the agency which issued the adverse action. At Hoyer Law Group, PLLC, our experienced employment attorneys can assist you in understanding if you can appeal to a state review board, walk you through the appeals process, and, if necessary, represent you as you pursue your case.

Whistleblowing to the OSC and Office of Inspector General

Both the OSC and Office of the Inspector General (“OIG”) seek to prohibit wrongdoing, abuses of authority, and misconduct within federal government agencies and programs. These agencies provide some of the best pathways for employees to report legal violations within an agency and seek reconciliatory damages.

The OSC

The OSC handles disclosures of wrongdoing within the federal government’s executive branch from current, former, and prospective employees. The OSC’s Disclosure Unit only reviews six different types of disclosures, which are:

• Violation(s) of a law, rule, or regulation by an agency;
• Gross mismanagement;
• A gross waste of funds;
• An abuse of authority;
• A substantial and specific danger; and
• Censorship related to research, analysis, or technical information.

The Office only hears cases for government employees of the executive branch. It does not have jurisdiction over disclosures filed by postal service, judicial, congressional, or state employees working under federal grants, government contractors, or members of the armed forces.

After an eligible employee files a disclosure, the OSC interviews the employee and considers all material information provided in the filing. It then determines whether there is a substantial likelihood that the information discloses wrongdoing before it can refer the matter to the head of the agency for investigation. The OSC might find that all, none, or part of a disclosure meets the substantial likelihood threshold and may only refer part of a disclosure for investigation. Before referring the information, the OSC provides the whistleblower the opportunity to review the information being referred. Notably, OSC does not decide who in the agency conducts the investigation.

After OSC refers allegations for investigation, the agency is required to complete its investigation and report back to OSC within 60 days. In its report, the agency must describe the basis for the investigation, how it was conducted, a summary of the information gathered, list any apparent violation, and include a description of any action that can be taken.

If the whistleblower cannot provide sufficient evidence to support their assertion, OSC is unable to refer the disclosure to the agency for investigation. If OSC does not refer the allegations, it must notify the whistleblower and provide them with all other offices (if any) in which they can file a disclosure.

The OSC provides one of the best pathways for federal employees to voice concerns of misconduct by agency management while simultaneously protecting employees from prohibited personnel practices administered as reprisal for whistleblowing.

The OIG

The OIG exists in several federal agencies and seeks to improve the efficiency and effectiveness of federal programs and operations. In addition to the federal OIG, several states have their own offices modeled after the federal agency. These state offices aim similarly to ensure the efficiency and effectiveness of programs and operations administered by state government agencies.

The OIG’s primary mission is to detect and deter fraud, waste, and abuse in department programs and misconduct by department personnel. The OIG has jurisdiction over many federal agencies, programs, and non-government entities that receive federal funds.

In addition to its own audits and investigations, the Office also hears disclosures from whistleblowers and complaints from current, former, and prospective employees. Some of OIG’s primary functions are:

• Investigating alleged violations of criminal and civil laws, regulations, and ethical standards arising from the conduct of department employees;
• Conducting, reporting on, and following up on financial audits of departmental organizations, programs, contracts, grants, and other agreements;
• Conducting, reporting on, and following up on performance audits and inspections of programs and operations within or financed by the department; and
• Reporting to the Attorney General and Congress on problems and deficiencies in the administration of department and department-financed operations and progress made in implementing recommended corrective actions.

The OIG also encourages whistleblowers to come forward and report fraud and misuse or abuse of government funds. OIG’s fraud focus areas include but are not limited to:

• Grant Fraud;
• Contract Fraud;
• Determining Fraud Risk;
• State False Claims Act Reviews; and
• Whistleblower Protections.

Accepted disclosures to OIG vary by agency and on the extent of the fraud. For example, the Office of the Inspector General for the Department of Health and Human Services will not accept a disclosure for Social Security fraud. It will instead refer the whistleblower to the Office of the Inspector General for the Social Security Administration.

Internal Grievances

Administrative Grievances

Several federal government agencies have internal procedures for non-bargaining unit employee grievances, also referred to as administrative grievance procedures. These procedures are governed by agency regulations and are typically only applicable to employees not covered by a collective bargaining agreement or negotiated grievance process (union grievances). These procedures outline what pathways employees can take to raise matters of concern or dissatisfaction to agency management for consideration and seek to resolve the matter at the lowest possible level.

Generally, most administrative grievances are governed by an internal office or Board. However, federal regulation concerning these grievances is limited, so agencies have relative liberty in both creating and implementing these procedures. As a result, these processes differ wildly on an agency-by-agency basis.

These procedures usually do not apply to all employees within an agency and exclude executives and upper-level management. For example, the TSA’s Office of Professional Responsibility (“OPR”) serves most agency employees (excluding executives). It provides one of the only pathways for “screener” employees to voice concerns about agency procedures, actions, etc. The OPR also contains a review board, which hears appeals for OPR rulings and can either uphold the decision or issue corrective action.

The number of steps required to get through the grievance process varies on both the agency and the type of grievance being filed. Nevertheless, most demand a written complaint or disclosure be filed. These written grievances must meet the agency procedure’s stringent information and formatting requirements. A meeting with a grievance representative usually follows, where the representative presents the basis of the grievance and the employee presents additional information or documentation supporting their claim.

These grievances typically have strict deadlines and short statute of limitations, sometimes as short as seven days after the agency action. Therefore, getting legal counsel involved as early as possible is essential. Here at Hoyer Law Group, PLLC, our experienced employment attorneys can help simplify these complicated procedures, assist you in filing your grievance, and represent you throughout the process.

Union Grievances

Federal and state government employees covered by a negotiated grievance process, also known as “union grievances,” are not covered by agency administrative grievance processes. Therefore, unions provide some of the best, if not the only, pathway for employees to voice concerns or discontent without the need to consult an external agency or Board.

Similar to administrative procedures, these processes vary wildly between agencies. Unions are usually much better at explaining the grievance process to their members and notifying employees of their rights to file. Once a union grievance is filed, a union representative is usually assigned to represent an employee before the agency. The rest of the process is governed by the collective bargaining agreement the union has with the agency. In most cases, it is in the best interest of the union and agency to informally resolve the grievance through alternative dispute resolution (“ADR”). However, cases not resolved through ADR may proceed to an external review board or commission such as the MSPB or EEOC. Others may proceed to costly litigation, which may or may not be covered by the union.

For various reasons, unions may fail to effectively represent their members. Whatever the reason, union representation may prove inadequate, and employees may find it necessary to retain legal counsel. A lawyer representing you through the grievance process can ensure that the union acts in your best interest and that your claim is quickly and efficiently resolved.

EEO and EEOC Cases

The EEOC is possibly the first agency that employees think of when considering how they can appeal adverse actions or an agency decision. The Commission seeks to protect federal, state, and private-sector employees from several forms of employment discrimination. The EEOC hears claims from employees alleging the following types of discrimination:

• Age;
• Disability;
• Harassment;
• Pregnancy;
• Race/National Origin;
• Religion;
• Gender;
• Sexual Orientation;
• Sexual Harassment; and
• Genetic information.

The Commission not only hears cases regarding the types mentioned above of discrimination but also hears appeals for adverse actions that may have been issued due to discrimination. In addition to hearing cases brought by employees, the Commission is responsible for ensuring that government agencies and private companies comply with federal regulations concerning employment discrimination.

EEOC Authority

The EEOC has the authority to investigate employee claims of discrimination against employers subject to federal employment laws and regulations. The EEOC draws authority from several federal laws and its own sub-regulatory guidance on how laws and regulations should be applied to specific workplace situations.

Title VII of the Civil Rights Act of 1964

The Civil Rights Act of 1964 was created to eliminate discrimination based on race, color, religion, national origin, or sex. The law applies to direct employment discrimination and prohibits retaliation against an employee for reporting discrimination. The Act also requires that employers reasonably accommodate employees’ sincerely held religious practices unless they can prove that doing so would impose an undue hardship on the operation of their business.

Title VII was later amended by the Pregnancy Discrimination Act, which made it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy. Similarly, it is unlawful to retaliate against a person because they reported pregnancy discrimination.

The Equal Pay Act of 1963

The Equal Pay Act of 1963 ensures that employers pay their employees equally and fairly regardless of gender. The law makes it illegal for employers to compensate men and women differently if they perform equal work in the same workplace. The law also protects employees who report violations of the Act or assist in investigating violations from retaliation or reprisal by employers.

The Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967, or “ADEA,” protects employees who are 40 or older from discrimination based on their age. The law makes it illegal to discriminate against employees due to their age and provides more senior employees with employment security and protection. In addition, the Act also includes retaliation protections for employees similar to other employment discrimination legislation.

Title I of the Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990, or “ADA,” seeks to prevent discrimination against the disabled and provides several protections for disabled employees in the workforce. The law makes it illegal to discriminate against a qualified person with a disability, whether a job applicant or an employee, unless the employer can prove that doing so would impose an undue hardship on the operation of the business. The act also requires employers to “reasonably accommodate” the physical or mental limitations of a disabled employee. The Act protects employees who have reported discrimination or have assisted in investigating a discrimination claim.

Other Federal Statutes

In addition to the above acts, several other federal laws and statutes provide employees further protection from workplace discrimination. The comprehensive federal legislation surrounding employment discrimination provides the EEOC with substantial authority to investigate and resolve claims. This authority, in turn, results in considerable federal protections for employees who experience and report workplace discrimination to the Commission.

The EEOC Complaint Process

The procedure for filing a complaint of discrimination against a federal government agency differs from those for filing a claim against a private or public employer. Many states and local jurisdictions have employment discrimination laws, and their agencies enforce them. Therefore the complaint process for non-federal employees depends on local or state legislation, which may provide a better pathway for reporting employment discrimination than the EEOC.

The Federal EEO Complaint Process

The EEO complaint process for federal employees is relatively standardized across all agencies. Each agency is responsible for informing its employees how to contact the agency’s EEO office, where an employee can begin the complaint process.

The first step is meeting with an EEO Counselor at the agency. In most cases, you must contact the counselor within 45 days from the day the last discrimination occurred. The counselor will typically allow the employee to participate in either EEO counseling or an ADR program. If the employee does not settle through counseling or ADR, they may file a formal complaint against the agency with the EEO office, which must be filed within 15 days from the notice received from the EEO counselor.

Once a formal complaint is filed, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (i.e., the complaint missed a deadline). If the agency decides not to dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day of the filing to complete the investigation. Once the investigation has concluded, the agency will issue a notice giving the employee the option to either request a hearing before an EEOC Administrative Judge or ask the agency to decide whether discrimination occurred.

If the employee requests the agency issue a decision and no discrimination is found, or the employee disagrees with any part of the decision, it can be appealed to the EEOC or challenged in federal court.

Suppose the employee elects to have a hearing before an administrative judge. In that case, they must request a hearing within 30 days after the day the agency informs the employee of their hearing rights. At the hearing, the employee or their representative will have the opportunity to present their case. The judge will then decide and order relief if they find that discrimination occurred. Once the Administrative judge issues a decision, the agency will issue a final order, in which it will either agree or disagree with the decision. The agency has 40 days to issue this order, and it will contain an employee’s appeal rights, rights to bring an action in federal court, and the deadlines to file both.

Employees can appeal an agency’s final order to the EEOC. The employee must file the appeal no later than 30 days after receiving the final order. After an appeal is filed, EEOC appellate attorneys will review the entirety of the case file and may uphold, overturn, or partially overturn the decision. Similarly, the agency may follow the same process if it disagrees with the EEOC decision. If an employee or agency disagrees with the EEOC’s decision on an appeal, they can request for reconsideration of the decision. A request for reconsideration is only granted if it can be proven that the decision was based on a mistake about the facts of the case or misapplication of the law. If an employee exhausts the entirety of the administrative complaint process, they may then file a civil action in federal court.

How can we help?

Appeals and grievance processes for government employees can be complicated, confusing, and tedious. On top of this, most agencies don’t adequately explain these procedures to their employees and fail to inform them of when an appealable action is taken. Therefore, having a dedicated, experienced employment attorney handle your case can be vital in deciding the outcome of your case. Here at Hoyer Law Group, PLLC , our experienced employment attorneys can answer any questions regarding these procedures, assist you through the filing process, and represent you before the governing body. If you believe you have experienced an appealable action or simply want guidance through the appeal process, Contact us online to discuss your case or call Hoyer Law Group, PLLC at 844-277-1217.