Your Rights as a Federal Worker

At 2.7 million workers, the Federal Government is the largest employer in the United States. Many, if not the majority of these employees, do not understand the rights that they have as Federal employees. The rights that govern a particular position will vary, but perhaps the single most important source of rights is the Civil Service Reform Act of 1978. The CSRA created the Merit Systems Protection Board as an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems. For most Federal workers suffering some form of adverse disciplinary action or a Reduction in Force, the Merit Systems Protection Board is where they need to turn to for protection.

Most of the cases brought to the Board are appeals of agency adverse actions--removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or less. The next largest number of cases involve appeals of OPM determinations in retirement matters. Other types of actions that may be appealed to the Board include: performance-based removals or reductions in grade, denials of within-grade salary increases, reduction-in-force actions, OPM suitability determinations, OPM employment practices (the development and use of examinations, qualification standards, tests and other measurement instruments), denials of restoration of reemployment rights, and certain terminations of probationary employees.

It is important to keep in mind that the Board may only hear "adverse actions," such as those described in the preceding paragraph. Whenever an agency takes an adverse action, the agency is supposed to spell out the appeal rights available to the employee. However, the process of appeal to the Board can be as trying as litigating your own Federal case. In fact, the Board follows a process that is very similar, but much abbreviated, to a Federal or State Court case. Unlike, Federal Court actions, a legal representative advocating for the employee, need not be a licensed attorney. Oftentimes, the representative is a union steward or other Federal employee. However, the worker has the right to hire an attorney and if he or she prevails, can be awarded attorneys' fees.

If you are a Federal employee, who has suffered some form of adverse action, it is critical to act quickly. Oftentimes, the employee who has been disciplined or fired is so stunned that they let critical deadlines pass. Accordingly, it might be wise to consult with an employment attorney, especially one who has practiced before the Board.

Can an employee manual or handbook give rise to a lawsuit by an employee?

Most businesses reach a point where they find it necessary to put their company policies and procedures in writing. While such manuals may relate strictly to business-related processes, employers also use the promulgation of an employee manual or handbook as an opportunity to set down employment-related policies such as overtime use, hours of operation etc. In so doing, many employers employ a cut and paste method of putting down a policy over an issue that is currently percolating in the workplace, such as a chronically tardy employee. In so doing, the employer runs the risk of giving rights to an employee that the employer did not foresee or intend.

In the case of Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984), the Washington State Supreme Court held that the employer's right to terminate an at will employee can be contractually modified and, thus, qualified by statements contained in employee policy manuals or handbooks issued by employers to their employees. Thus, even though, in Washington State, an employee works at will of the employee, which is to say he/she may be terminated for any lawful reason, the relationship may be modified by the issuance of a employee manual. In order to sue under such a provision the employee must prove these elements of the cause of action: (1) that a statement (or statements) in an employee manual or handbook or similar document amounts to a promise of specific treatment in specific situations, (2) that the employee justifiably relied on the promise, and (3) that the promise was breached.

These obligations necessarily arise when the employer makes promises of specific treatment in specific situations. And this obligation may arise even though the manual or handbook contains language to the effect that the employee works at will of the employer. The language or situations that can give rise to such an obligation are very fact-specific. Accordingly, even when the employer has a competent human resources manager or department, it behooves the employer to get the employee manual or handbook reviewed by an attorney. Such a review would not only foreclose future problems but also would provide the employer guidance on lawful policies. Themis Litigation Group regularly performs this service at a very modest cost to the employer. Prudence, in this instance, need not be expensive.