Due process is a cornerstone of fairness in federal employment disputes. Federal agencies must follow specific legal procedures before firing or negatively altering a federal worker’s employment status to protect qualified civil servants from arbitrary or politicized employment actions.
When agencies fail to follow these procedures, federal employees can make a case to the Merit Systems Protection Board (MSPB) and potentially have their adverse action reversed.
This blog post will give an overview of federal employees’ rights to due process in an adverse employment action. We’ll cover the basic legal protections government workers have and common due process issues in MSPB cases to be aware of.
Understanding Federal Employee Due Process Rights
The right to due process originally comes from the Fifth Amendment of the U.S. Constitution, which states that the federal government can’t legally deprive anyone of life, liberty, or property without following a specific procedure.
For federal government employees, employment is, in essence, a property right. This means that civil servants can’t be disciplined or removed from their roles without going through a specific process.
The Civil Service Reform Act of 1978, which aimed to foster a merit-based, nonpartisan federal workforce, established the steps of this process.
Federal employee due process rights in employment actions generally consist of the following:
- Notice of proposed action—the right to be informed in advance of an agency’s intention to alter employment, e.g., by removal, suspension, or demotion; and
- Opportunity to respond—the right to make an oral or written response to an agency’s allegations of misconduct or performance issues before a final decision on the action is made.
Federal employees also have the right to appeal their case to a neutral entity if they feel the adverse action was enacted unfairly. The Merit Systems Protection Board (MSPB) is the neutral body that oversees these cases and reviews whether federal agencies have adhered to due process requirements. The MSPB is vital in holding agencies accountable and safeguarding employees’ rights.
Federal Employee Due Process Violation Examples
Although due process is one of federal employees’ most fundamental rights, agencies may not always respect these rights. Let’s look at some examples of due process violations federal employees may face.
Insufficient Notice of Charges
Federal employees must receive advance written notice of the reasons for an agency’s proposed adverse action. Agencies must be specific and detailed about an employee’s alleged disciplinary or performance issues.
For example, simply stating that an employee showed “poor performance” without naming particular incidents could be a due process violation.
Denial of Opportunity to Respond
Employees must receive the chance to respond to the allegations against them. This includes presenting evidence, providing explanations, and defending against their employer’s claims, either in writing or during an oral hearing. If an agency makes a proposed action final before an employee can reasonably respond, it may violate due process laws.
Federal employees have the right to review all information an agency relies upon when deciding on disciplinary action. You can request this information if an agency doesn’t provide it when they give you notice. Agencies that refuse an employee’s request for information can have their decisions overturned by the MSPB.
MSPB Harmful Procedural Error
An employee faces a harmful procedural error when an agency fails to follow its own internal policies or legal requirements, which negatively impacts the outcome of the case.
For the MSPB, a harmful procedural error or a due process violation could be grounds to reverse an agency’s adverse action. That’s why federal employees must understand their rights in these processes.
Dedicated Advocates for Civil Servants
It’s normal for federal employees to feel overwhelmed and paralyzed when their job is threatened. However, you are far from powerless in this situation.
If you suspect your employer has violated your rights in a proposed action, the Federal Employment Law Firm of Aaron D. Wersing can provide the guidance and support you need.
Attorney Aaron D. Wersing has extensive experience helping federal employees understand and exercise their rights in employment disputes.
Our team understands the complexities of due process issues in MSPB cases, and we’re prepared to fight to ensure on behalf of you and your career. Contact our office today to schedule a consultation and learn more about how our advocates can help you.
Resources:
5 U.S.C. § 7503, link.
Aaron Wersing, Attorney at Law
Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. Mr. Wersing graduated from the Georgia State University College of Law with a Doctorate in Jurisprudence and was the recipient of the CALI Excellence for the Future Award. Mr. Wersing previously attended the University of Georgia, where he received a Bachelor of Business Administration degree in Accounting. Mr. Wersing is an active member of his local community. Mr. Wersing acts as a volunteer attorney with Houston Volunteer Lawyers, the pro bono legal aid organization of the Houston Bar Association. He is also a member of professional legal organizations such as the National Employment Lawyers Association and the American Inns of Court. To reach Aaron for a consultation, please call him at (833) 833-3529.
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