Understanding Your Legal Rights as a Federal Employee
The legal rights of Federal employees are constitutionally based and codified in federal law. Statutory employment rights first developed in the Civil Rights Act of 1964. The Equal Employment Opportunity Commission ("EEOC") and the Merit Systems Protection Board ("MSPB") extend those rights to federal employees, including the right to be free from discrimination based on race, color, national origin, gender, pregnancy, religious status, age, and handicap. These laws also prohibit retaliation against individuals who request special accommodations based on religious requirements or disability.
Importantly , Federal employees have no right to bargain for wages or benefits, so their pay and benefits are dictated by rule, and Federal employees cannot file for workers’ compensation after suffering an injury at work or on the job. The Federal Employees Compensation Act outlines the remedy for Federal employee injuries, but it is a complicated process that requires assistance from a workers’ compensation attorney.
Finally, many citizens assume Federal employees work with habeas corpus rights. However, that is not the case. Federal employees must raise these rights under Part 752 of the United States Code.
Typical Legal Challenges for Federal Employees
Common legal issues that federal employees may encounter include workplace disputes, discrimination claims, and issues related to job security. Workplace disputes can arise over a variety of issues, such as pay, promotions, performance evaluations, or work assignments. These disputes may involve disagreements with supervisors or co-workers, or they may be based on an employee’s overall treatment within the agency.
Discrimination claims can also be a concern for federal employees. Such allegations may be based on an employee’s race, gender, age, religion, national origin, disability, sexual orientation, or retaliatory claims. However, these types of claims often refer to the allegations that are made in the EEO process. For example, it may be that an employee engages in protected activity in the EEO process and upon appeal it is taken as a retaliation claim.
In both workplace disputes and discrimination claims cases, federal employees must follow the appropriate administrative procedures set forth by the agencies before turning to a court of law. This involves contacting their agency’s Equal Employment Opportunity office and perhaps filing an administrative complaint. If they are subsequently dissatisfied, then a Federal Circuit court can take up their case if the employee meets the strict requirements for shifting from agency proceedings to court proceedings.
As mentioned, a federal employee must follow the administrative procedures set forth by their agency when filing a complaint with the U.S. Office of Special Counsel, Merit Systems Protection Board, or Equal Employment Opportunity Commission. An experienced attorney who is familiar with the administrative procedures involved can provide guidance for the various steps that must be undertaken before proceeding to court.
Accessing Legal Aid as a Federal Employee
As a federal employee, you have several options for legal assistance. For those who are represented by a union, that organization will generally be the first point of call. A union representative is likely well-versed in most employment-related legal matters, and he or she can assess whether a particular situation merits further action on your part. Sometimes, union representatives can even assist with a grievance by filing it on your behalf.
For certain types of employment-related issues, there are also legal aid organizations available to assist federal employees. A legal aid organization might be able to provide legal assistance on employment discrimination matters, or at the very least, point you in the right direction.
If you don’t have a union or legal aid organization available to you, employment attorneys are your next option for legal assistance. You’ll want to look for a reputable attorney who has experience specifically with cases involving federal employees. When you meet with an employment lawyer or firm, there will likely be a consultation fee. If your case falls within the firm’s wheelhouse, he or she will begin to give you a better idea of the process and whether you have a viable case within 30 minutes or less.
The Federal Employee Legal Aid Program Explained
The Federal Employee Legal Assistance Program (FELA) functions as an invaluable resource for health professionals employed in federally-funded health facilities as well as their family members. Taking the guesswork out of resolving a variety of pressing legal issues, this program provides a broad range of legal services on a low-fee or free basis.
In addition to legal advice and consultation, covered services include provision of representation at early stages of civil or administrative actions; assistance with drafting of letters, other documents or pleadings; referral to other sources of assistance, mediation and assistance with debt collection matters. Consultation concerning death cases also is available.
Significantly, the Federal Employee Legal Assistance Program also provides covered services concerning security clearance matters. This includes legal consultation, referral and representation concerning: security clearance applications and processing, requests for reconsideration and personnel actions.
It should be noted, however, that FELA does not cover representation in matters or issues arising from Department of Health and Human Services employment. (This includes such matters as the merit system protections, disciplinary actions, terminations and reductions in force.)
Legal Assistance Program personnel are not permitted to represent federal employees as plaintiffs or defendants or in hearings and trials. FELA also does not provide coverage for legal work in custody and divorce matters, certain class actions and criminal matters, where these issues are handled by U.S. Attorneys, the Department of Justice or other agencies.
Selecting a Lawyer for Federal Employee Cases
Your choice of attorneys is critical. You should require the attorney to have experience in all the areas of federal litigation, including EEOC, MSPB, FERS disability, discrimination and whistleblower protection. You should require the attorney have compassion for your situation. The attorney will have to make arguments at court and at your agency defending you. If they are simply going to lobby for the judges favor, and not protect your rights, you will be wasting your money. Also, you should require that the attorney take at least one case through to trial in one or more of these venues such as the EEOC, MSPB, and Federal district court. Statistically, the attorney must have a high rate of success and winning cases at court . Having handled thousands of cases, and working with many other lawyers, I know that this is not the case for most. Cases are lost at MSBPs, EEOCs and OPM for the following reasons: A lack of preparation or an excuse never tolerated by a Judge or jury. But, again, it happens all too often. It is important you understand the attorney will have some discretion on whether you can win or not. The attorney will tell you something like this "the law does not support this" or "the board ruled that way before". This type of conversation should alert you that the lawyer does not know the case law, and cannot argue a sympathetic argument. The attorney is saying he or she can’t do it, and the case is lost. Don’t accept an attorney who won’t fight for you and make any argument available to win the case.
Federally Employed Victories: Success Stories in the Courtroom
Federal employees face many challenges in the course of their careers. For some, these challenges are compounded, and they find themselves facing formal and informal investigations, disciplinary actions, security clearance denials, or other legal obstacles. The federal government has in place a robust network of Federal Employment Lawyers and a system of legal assistance that frequently enables employees to navigate these obstacles and preserve their employment and career.
One example comes from a former colleague who was employed in the D.C. area. The employee reported to work one day and found her office significantly restructured, with her position "demoted" and reassigned to a new supervisor. In short, there was no work for her. U.S. Department of Agriculture (USDA) federal employees are "career" employees, meaning they have permanent appointments, often spanning decades. My colleague began to build her case for reinstatement under the procedures that allow such federal employees to challenge significant changes in their employment. After contacting an attorney about the situation, my colleague decided to immediately appeal and explain her actions to her supervisor, rather than wait for the agency to formally notify her about pending action. The case was eventually referred up the ranks to the Assistant Secretary for Civil Rights for an appeal hearing before an Administrative Judge (AJ). In a rare, but absolute win for the employee, the AJ found that the decision was "flawed" and ordered the agency to reinstate her to her former position, with back pay and benefits. My colleague stayed at the agency for an additional 25 years.
Another example is in a case that reached the Merit Systems Protection Board (MSPB). An Air Force employee was the target of an investigation for mishandling sensitive information. Because the employee had been on lengthy authorized medical leave, the agency planned to change his job to a non-sensitive position. The employee met with an attorney who helped him prepare his defense. After the attorney communicated with the Air Force and explained the situation, the case was resolved. The agency agreed to allow the employee to return to work in his original position.
Emerging Trends in Federal Employee Legal Aid
It is no secret that the federal workforce is getting younger. The generations now entering the part of their working life when they are most likely to seek legal counsel are not the same generations who survived the Great Depression and even World War II. Their views on what services a union should provide are quite different from their predecessors. They expect more from their union than slow-moving entities because, in this world increasingly dominated by the Internet, "slow" means "outdated." They are also more willing and able to pay for what they need, including legal services.
A significant trend that will no doubt influence union provision of legal services is the use of social networking media. For many in today’s working environment, the first place they turn to with a question is not their union representative. More and more , they are looking online, in some cases through Facebook and other popular social networking platforms. As communications technologies evolve, unions providing legal services must be prepared to meet their members where they are, not make them come to it.
Best of all, as Federal employees in the lower salary bands become more mobilized, they may begin to seek a less "officious," consulting model for legal assistance. Many who already use the union legal assistance program do so because their issue does not roil them enough to merit a full-blown grievance. But that does not mean they don’t want to get it off their chests and make sure the matter is dealt with fairly. A consultation model of legal assistance which proposes a more collegial relationship between the member and the attorney may be exactly what is called for.