Congressman Todd Rokita’s (R-IN) Promote Accountability and Government Efficiency Act caused alarm among federal employees and the unions that represent them. And while the concerns are valid, current federal employees should note that this legislation does not target them. The legislation, should it pass, will only apply to any future federal employees hired on the day the act goes into effect, or any time thereafter.
From a legal standpoint, the biggest takeaways are the swiftness of any adverse employment actions (i.e. suspensions, removal from service) and the trimmed down appeals process for discrimination, retaliation and whistleblower protection claims.
Let’s look at each issue:
No protections for adverse employment actions
This one cuts to the bone for federal employees. In the past, an employee who faced suspension (for specified days) or removal from service received notification in writing, and an opportunity to respond, before such action could be taken, and the employee had the opportunity to appeal the action.
This will not be the case for future federal employees, should this act become law. Because they are being hired “at-will,” new employees will not have this level of due process to protect them. If an agency head decides to fire an employee based on his or her own discretion, it will take effect immediately and leaves the employee without the means to appeal to a federal agency. However, they can appeal to federal district court, but the legislation sets a limit of $50,000 for damages, including court costs and attorney fees.
Having the ability to appeal adverse employment actions to the Merit Systems Protection Board (MSPB), the Equal Employment Opportunity Commission (EEOC) or the Office of Special Counsel has been a right enjoyed by hundreds of thousands of federal employees past and present. It allows them to make an agency head prove that their suspension or termination is just in the eyes of the law, and not just a snap decision based on a set of arbitrary values. Without this option, future federal employees will effectively be left out in the cold.
Trimmed down appeals process for discrimination and retaliation claims
Future federal employees will remain protected under all current anti-discrimination and anti-retaliation laws, such as the Civil Rights Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Whistleblower Protection Enhancement Act, etc. However, filing and appealing a claim will be different under Rokita’s proposed Promote Accountability and Government Efficiency Act.
Federal employees filing discrimination claims, retaliation claims or for whistleblower protection will have to choose which agency – MSPB or Office of Special Counsel – to file the claim. If the MSPB or Office of Special Counsel dismisses the claim, the employee cannot then turn to another agency without penalty. Any employee who files multiple appeals to the MSPB or Office of Special Counsel will see the maximum financial remedy limited to $1,000, including damages, court costs and attorney’s fees.
By including this penalty, the Promote Accountability and Government Efficiency Act is basically telling any future federal employees that they only get one chance to win a judgment from the MSPB or Office of Special Counsel. If they fail – and history suggests that these types of claims aren’t normally won on the first try – they have to take their cases directly to federal district court or else risk losing out on the financial settlement they were hoping for. While it streamlines the appeals process, it will also add to the caseloads in federal district courts, which could lead to lengthy delays for appeals to be heard.
Taken together, these two aspects of the Promote Accountability and Government Efficiency Act create an unwelcoming environment for people contemplating federal service. By limiting legal rights that have been in place for decades, future federal employees may have little-to-no recourse to fight adverse actions.
About the Author
Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at firstname.lastname@example.org. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.