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What is Due Process in Federal Civil Service Employment?

May 14, 2015 Comments off

What is Due Process in Federal Civil Service Employment? (PDF)
Source: U.S. Merit Systems Protection Board

In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit this U.S. Merit Systems Protection Board (MSPB) report, What is Due Process in Federal Civil Service Employment? This report explains the interactions between the U.S. Constitution and adverse personnel actions in a merit-based civil service.

In the Civil Service Reform Act of 1978 (CSRA), Congress sought to ensure that agencies could remove poor performers and employees who engage in misconduct, while protecting the civil service from the harmful effects of management acting for improper reasons such as discrimination or retaliation for whistleblowing. Recently, Congress has expressed an increased interest in amending the CSRA, including those provisions that apply to adverse actions.

To assist Congress in these endeavors, this report explains the current civil service laws for adverse actions and the history behind their formation. It also explains why the Constitution requires that any system to remove a public employee for cause must include: (1) an opportunity – before removal – for the individual to know the charges and present a defense; and (2) the ability to appeal a removal decision before an impartial adjudicator. The report discusses why the circumstances of the case can determine whether the individual has been given the process that is “due” and how this enables the employing agency to act even more swiftly when there is reason to believe that a serious crime has been committed. The report also contains an appendix that clarifies any confusion about how the current civil service operates.

The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs

January 6, 2015 Comments off

The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs (PDF)
Source: Merit Systems Protection Board

In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit this U.S. Merit Systems Protection Board report, The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs. The purpose of our study was to examine how external factors such as a proliferation of hiring authorities and the decentralization of the Federal hiring process affect the implementation of fair and open competition for filling jobs in the Federal Government.

Since the Pendleton Act of 1883, it has been a basic precept that entry into the federal civil service should be based on merit after fair and open competition. Congress codified this ideal as part of the first merit principle in 1978 via the Civil Service Reform Act. However, the complexities of Federal civil service laws, regulations, and practices make it difficult to define what constitutes “fair and open competition.”

While what is “fair” or “open” often depends on one’s perception, there are some factors that threaten the principle of fair and open competition. These include: a proliferation of hiring authorities that restrict the size and composition of the applicant pool; overuse of restrictive hiring authorities and practices; the possibility that some managers may deliberately misuse hiring flexibilities to select favored candidates; and some human resources’ staff placing customer service to individual supervisors over service to the agency and its obligations to protect merit and avoid prohibited personnel practices. To protect fairness and openness in the Government’s recruitment activities, agencies should create a culture that values fair and open competition and examine hiring practices to identify and eliminate barriers to fair and open competition.

Additionally, since 2000, the use of restrictive hiring authorities has increased, while traditional competitive examining has decreased. This may be a warning that there may be some difficulty with the competitive examining authority. We recommend the Office of Personnel Management closely monitor how agencies are using restrictive hiring authorities. It also may be helpful for Congress to reexamine the role of competitive examining in Federal hiring and consider changes to make it simpler, more transparent and more widely used.

Veterans’ Employment Redress Laws in the Federal Civil Service

December 26, 2014 Comments off

Veterans’ Employment Redress Laws in the Federal Civil Service (PDF)
Source: U.S. Merit Systems Protection Board

This report describes the statutes and pertinent case decisions for two laws designed to protect the employment rights of veterans in the civil service: (1) the Veterans Employment Opportunities Act of 1998 (VEOA) (codified at 5 U.S.C. § 3330a); and (2) the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301-4335).

VEOA provides a redress procedure for preference eligibles and certain veterans who believe that an agency has not treated them in accord with Federal employment laws and regulations designed to reward particular types of military service. USERRA provides procedures to address claims of discrimination based on military service and to ensure that service members can resume their civilian careers when their military service is completed. USERRA applies to the private sector as well as the public sector. However, this report only discusses the USERRA redress procedures used when the employer in question is the Federal government.

Veteran Hiring in the Civil Service: Practices and Perceptions

September 12, 2014 Comments off

Veteran Hiring in the Civil Service: Practices and Perceptions (PDF)
Source: Merit Systems Protection Board

This report describes the laws and regulations for hiring veterans into the civil service. It explains that the laws and regulations regarding the preferences in hiring that can or must be given to veterans and certain family members are extremely complicated. It includes survey data of perceptions by employees regarding both violations of veterans’ preference rights and inappropriate favoritism of veterans. Furthermore, it explains the history behind—and implementation of—a law that was designed to ensure that the hiring of recently retired service members as civilian employees of the Department of Defense is based on merit and not favoritism.

Sexual Orientation and the Federal Workplace: Policy & Perception

September 11, 2014 Comments off

Sexual Orientation and the Federal Workplace: Policy & Perception (PDF)
Source: Merit Systems Protection Board

This study examined Federal employee perceptions of workplace treatment based on sexual orientation, reviewed how Federal workplace protections from sexual orientation discrimination have evolved, and determined if further action is warranted to communicate or clarify those protections. The U.S. Office of Personnel Management interprets the tenth Prohibited Personnel Practice, which bars discrimination in Federal personnel actions based on conduct that does not adversely affect job performance, to prohibit sexual orientation discrimination. As this prohibition has neither been specifically expressed in statute nor affirmed in judicial decision, it has been subject to alternate interpretations. Lesbian, gay, bisexual, and transgender (LGBT) Federal employee perceptions of the workplace are generally less positive than those of their colleagues. We found, however, that in some agencies for at least some workplace issues, LGBT employee perceptions were as positive as those of other employees. This suggests that agencies may be able to create more inclusive cultures, resulting in a more positive atmosphere in the workplace.

Women in the Federal Government: Ambitions and Achievements

May 26, 2011 Comments off

Women in the Federal Government: Ambitions and Achievements (PDF)
Source: Merit Systems Protection Board
From press release (PDF):

In a newly released report, “Women in the Federal Government: Ambitions and Achievements,” The U.S. Merit Systems Protection Board (MSPB) assesses the treatment and advancement of women in the Federal Government, based on analyses of workforce data and Federal employee perceptions of their experiences and career advancement in the Federal Government.

Much has changed for the better since MSPB’s 1992 report, “A Question of Equity: Women and the Glass Ceiling in the Federal Government.” For example, women now hold approximately 30 percent of positions in the Senior Executive Service, a marked improvement from only 11 percent in 1990. Within the Federal Government, differences between women and men in education and experience continue to diminish. Fewer women report that they are subjected to discrimination or stereotypes, reflecting progress toward a workplace in which employees are selected, rewarded, and advanced solely on the basis of their abilities and accomplishments.

Although this progress is commendable, women remain less likely than men to be employed in high-paying occupations and supervisory positions. Continuing occupational differences between women and men may complicate efforts to recruit a diverse workforce and limit women’s opportunities for career development and advancement. Discrimination on the basis of sex, although less frequent, has not yet completely disappeared from Federal workplaces.

Therefore, agencies must continue efforts to recruit and advance qualified women, pay close attention to fairness in areas such work assignment and training that can have long-term effects on an employee’s performance and promotability, and remain vigilant against prohibited and individual merit, and must not be influenced by stereotypes, favoritism, or other non-merit factors.

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