Federal Employee Rights
Written by: Federal Practice Group
Ongoing: Wickstrom et al v. United Airlines Master Executive Council et al (3:2022cv00315)
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Federal Employees: Know Your Rights!
Federal employees do not relinquish their constitutional rights as a condition of employment with the federal government, and in fact, unlike private sector employees, have constitutionally protected property rights to their jobs. That being said, it is important for federal employees to understand when they are lawfully exercising their rights versus when they may be committing misconduct by, for example, making an unlawful disclosure or failing to follow a lawful order.
Below are some "do's" and "don'ts" to try to help inform you of where the line between lawful action or speech and misconduct lies:
Federal Employees Can Make Speech Protected by the First Amendment
The Supreme Court established, nearly 50 years ago, in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, (1968), that "citizens do not surrender their First Amendment rights by accepting public employment," and that retaliation for exercise of these rights is illegal. In other words, federal employees maintain their rights to free speech and to peaceably assemble and protest. This is still the law of the land, and this principle was upheld as recently as 2014, where the Supreme Court, in Lane v. Franks, 134 S. Ct. 2369, 2377 (2014), explained:
There is considerable value . . . in encouraging, rather than inhibiting, speech by public employees. For "[g]overnment employees are often in the best position to know what ails the agencies for which they work." Waters v. Churchill, 511 U.S. 661, 674 (1994). "The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it." San Diego v. Roe, 543 U.S. 77, 82 (2004).
The Court also clarified that the First Amendment protects public employees' speech on matters of "public concern" if the speech is made by that employee as a private citizen, e.g., speech made by a federal employee through their own personal social media accounts after business hours. Matters of "public concern" include those relating to any matter of political, social or other like concerns to the community. This means that tweets federal employees have been sending out on the "alt" twitter accounts that have been popping is first amendment protected speech.
If an employee is making the speech as part of their job duties or on behalf of the government, then the speech is likely outside of the protections of the First Amendment, and it possibly can be the subject of a disciplinary action unless it is protected by other laws, such as those protecting whistleblowers. However, it is illegal for federal employers to retaliate against a federal employee by taking some sort of adverse action against a federal employee for making speech protected by the first amendment or participating in a lawful protest.
Federal Employees Can Blow the Whistle (or "Leak" as it is often called)
The whistleblower protection laws make it illegal for a federal agency to take an adverse action against a federal employee because of a "protected disclosure" made by that employee. The Whistleblower Protection Enhancement Act (WPEA) defines a "protected disclosure" as a disclosure of information a federal employee "reasonably believes evidences a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety." The employee can make the disclosure within the scope of the employee's job duties (e.g., as an auditor or investigator), while the employee was off duty, and to their own supervisory chain, an entity like the Office of Inspector General (OIG) or U.S. Office of Special Counsel (OSC), or to the press.
However, there are certainly limits on whistleblower protection that federal employees need to be aware of to avoid getting in trouble. For example, employees who work for intelligence agencies such as the CIA or NSA can usually only make protected disclosures internally, e.g. to the agency's Office of Inspector General or to Congress, because any disclosure of classified information is prohibited (and is not considered whistleblowing).
Also, the U.S. Office of Special Counsel (OSC) has come out and said that the "gag orders" rumored to have been issued at some agencies violate the WPEA unless they include required language informing employees that their statutory right to blow the whistle supersedes the terms and conditions of the nondisclosure policy.
Federal Employees Cannot Violate the Hatch Act
The Hatch Act limits political activities of federal employees, and is rarely given a second thought after elections are held, for good reason , as the Hatch Act really only prohibits very narrowly defined activities directly related to political campaigns. Specifically, the Hatch Act prohibits federal employees from
a) engaging in political activity while on duty and while in the workplace, or in an official capacity at any time;
"Political activity" is any activity directed at the success or failure of a political party, partisan political group, or candidate in a partisan race. In other words, for example, federal employees should not pass out "Vote for Clinton/Trump" stickers at work. "Political activity" is not activity opposing an administration's policies or agenda or even pending legislation. The first amendment protects federal employees' right to speak on these matters of concern, even publically or via social media. Federal employees can, for example, post an article on Facebook opposing the Trump Administration's travel ban.
b) soliciting or receiving political contributions at any time.
However, federal employees are permitted to make political donations, should they choose to do so.
Federal Employees Cannot Refuse to Comply with a Lawful Order or Policy
Federal employees can be fired for a charge such as insubordination for failing to comply with a lawful order or policy. The general rule for federal employees to keep in mind when assessing whether to comply with a directive you disagree with is, "comply now, complain later," even where there is substantial reason to believe that an order or policy is improper. The Merit Systems Protection Board (MSPB) has held that the only exceptions to complying with a lawful order are in "extreme or unusual circumstances" in which the employee would be placed in a clear danger or which would cause irreparable harm to the employee.
The other exception is when the directive is in fact illegal, not just "improper" or disagreeable. 5 USC Section 2302(b)(9)(D) makes it a prohibited personnel practice for an agency to "take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of— …(D) for refusing to obey an order that would require the individual to violate a law[.]" Thus, if your agency management disagrees with the judicial branch over the legality of a directive, you should ultimately be permitted to keep your job if you comply with the judicial branch's determination, although there are no guarantees that your agency will not take action against you, even if you can ultimately prevail on appeal.
The recently enacted Follow the Rules Act takes this one step further and allows federal employees to refuse to comply with any directive they reasonably believe violates federal statutes or regulations.
Federal Employees Can Exercise Due Process Rights to Challenge a Proposed Adverse Action
The Supreme Court has held that federal employment is Constitutionally protected property, meaning that it cannot be taken away without due process. At a minimum, before taking an adverse action like termination, an agency must issue a notice to the employee identifying the charge(s) against them. The employee has the right to see the evidence against them and the right to reply to the charge(s), as well as the right to have counsel represent them.
If a federal employee is removed because of making speech protected by the first amendment, whistleblowing, or refusing to comply with an illegal order, a federal employee will also be able to bring these claims through appropriate channels. At the end of the day, these rights are what separates federal employees from private sector employees, so DO NOT waste the opportunity to exercise these rights.
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