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Federal Employee Representation
As experienced federal employee lawyers, the attorneys at The Employment Law Group® law firm have represented federal employees in a wide variety of claims.
What are the categories of federal employment?
There are five general categories of federal employment:
- Competitive Service: The system under which applicants must compete with other applicants in open competition under the merit system administered by the Office of Personnel Management (OPM). An employee with Competitive Status is eligible for noncompetitive assignment, such as a transfer or promotion, without having to compete with other applicants.
- Excepted Service: Employment in a federal position or with an agency or organization that is outside the federal Competitive Service, either by statute, Executive Order of the President, or action by OPM. Unlike an employee in Competitive Service, an Exceptive Service employee cannot move from one federal government agency to another without going through the OPM hiring process.
Excepted organizations include the:
- Federal Reserve System,
- Federal Aviation Administration (FAA),
- Central Intelligence Agency (CIA),
- Defense Intelligence Agency (DIA),
- U.S. Department of State,
- Federal Bureau of Investigation (FBI),
- General Accounting Office (GAO),
- International Agency for Development,
- National Security Agency (NSA),
- Nuclear Regulatory Commission,
- Postal Rates Commission,
- Tennessee Valley Authority,
- U.S. Mission to the United Nations,
- Department of Veterans Affairs,
- U.S. Supreme Court,
- Administrative Office of the U.S. Courts,
- U.S. Claims Court,
- U.S. Senate,
- U.S. House of Representatives, and
- Library of Congress.
- Senior Executive Service (SES): Non-presidential appointed, primarily managerial and supervisory positions. Senate confirmation is not required. SES positions correspond to flag officers (e.g., generals and admirals) in the military.
- Political Appointments: Appointed positions which have been excepted from the competitive service by reason of their confidential, policy-determining, policy-making, or policy-advocating character.
- Title 38 Employees: Medical professionals who work at federal agencies such as the Veterans Health Administration or National Institute of Health (NIH) are usually appointed under Title 38 of the United States Code Section 7401(1). As a Title 38 employee, your rights differ significantly from other federal employees.
Which federal employees have the right to appeal adverse actions to the Merit Systems Protection Board?
Certain federal employees have the right to appeal to the Merit Systems Protection Board (MSPB) in the case of a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less “for cause that will promote the efficiency of the service.”
These employees include:
- individuals in the competitive service who are not serving a probationary or trial period under an initial appointment or have completed one year of current continuous service under other than a temporary appointment limited to 1 year or less;
- preference employees eligible in the excepted service who have completed 1 year of current continuous service in the same or similar positions in an Executive agency or in the United States Postal Service or Postal Rate Commission; and
- individuals in the excepted service who are not serving a probationary or trial period under an initial appointment pending conversion to the competitive service or who have completed two years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to two years or less.
Under what circumstances does a probationary employee have appeals rights?
A probationary employee has the right to appeal under circumstances, with the assistance of a federal employee attorney if he or she desires:
- A probationary employee may appeal an adverse action motivated by partisan political reasons, marital status, or past or present military service.
- A probationary employee may have a right to appeal to the MSPB based on past service.
- A probationary employee may have appeals rights through an Individual Right of Action, prohibited personnel practice complaint, or under various civil rights laws.
For what reasons do agencies commonly discipline or remove employees?
An agency may discipline an employee “only for such cause as will promote the efficiency of the service.” Courts have stated that they will define “cause for a removal which would promote the efficiency of the service” by the nature of the particular service involved as well as by the competence of the employee. The agency has the burden of proof to establish that the employee's discipline will “promote the efficiency of the service.” There is no requirement that an employee must violate a specific written policy before the agency can discipline him or her. The agency must provide a rational basis for disciplining the employee and substantial evidence to support their purported rational basis. A federal employee lawyer can assist an employee in defending his or her case.
The below substantive offenses are common reasons agencies discipline federal service employees:
- Unapproved Absenteeism or Tardiness: Chronic absenteeism and tardiness account for the largest number of adverse actions in federal government. E.g., Davis v. Veterans Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986) (“An essential element of employment is to be on the job when one is expected to be there.”)
- Refusal to Accept Reassignment: The government has broad discretion to resassign employees to different locations and duties. E.g., Leefer v. Adm'r, Nat. Aeronautics & Space Admin., 543 F.2d 209 (D.C. Cir. 1976) (agency may assign employee to a dissimilar position in a new geographic location without characterizing the reassignment as a demotion).
Conflict of Interest: Federal employees must avoid situations that compromise, or even give the appearance of compromising, their duties as agents of the government. E.g., Smith v. Dep't of Interior, 6 M.S.P.R. 84, 87-88 (M.S.P.B. May 6, 1981). (“[R]emoval of federal employees who have engaged in outside activities or accepted any gratuities which might call into question their undivided loyalty to the Government regarding the performance of their duties promotes the efficiency of the service.”)
- Failure to Maintain a Condition of Employment: For example, a professional license, credentials or a security clearance (See the
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The Employment Law Group® law firm represents employees nationally who have blown the whistle on corporate fraud and abuse and who have been the victims of discrimination, harassment, or other violations of their civil rights. With offices in Washington, D.C., San Francisco, and Los Angeles, California, The Employment Law Group® law firm’s seasoned trial attorneys have earned a highly desirable record of favorable settlements and verdicts on behalf of its clients.