Safeguarding. the Federal Workplace

Transcription

1 U.S. Office of Special Counsel: Safeguarding Accountability, Integrity, and Fairness in the Federal Workplace Metropolitan Washington Employment Lawyers Association July 17, 2014 Mark Cohen, Principal Deputy Special Counsel Louis Lopez, Associate Special Counsel

2 Today s Agenda OSC s Strategic Goals and Operations Whistleblower Disclosures Prohibited Personnel Practices (PPPs) Enforcement and Remedies in PPP Claims Recent Developments Questions

3 OSC s Strategic Goals and Operations

4 OSC s Strategic Goals Protect employees against retaliation for whistleblowing Provide a safe channel for federal employees to disclose wrongdoing Conduct outreach to the federal community about prohibited personnel practices (PPPs), employment discrimination against veterans, and restrictions on political activity Seek disciplinary action for unlawful political activity and persistent and egregious PPPs Restore confidence in OSC in the federal community, and among stakeholders, staff, and the public

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6 Top Agencies Providing OSC Casework in FY 2013 (All Matters)

7 OSC- Total Matters Resolved 5,000 4,833 4,500 4,374 4,000 3,912 4,051 3,500 3,337 3,000 2,875 2,500 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013

8 Whistleblower Disclosures

9 Whistleblower Disclosures 5 U.S.C OSC receives disclosures from whistleblowers that involve reports of gross mismanagement and waste, illegality, fraud, abuse, and dangerous and unsafe practices. In FY 2013, whistleblower disclosures comprised one-quarter of the OSC s new matters, and OSC will likely see record levels of disclosures in FY 2014.

10 Whistleblower Disclosures ,148 1, FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013

11 Whistleblower Disclosures Coverage Most Executive Branch Agencies are covered. Disclosure typically involves occurrence connected to employee s duties and responsibilities. OSC has no investigative authority OSC has no investigative authority OSC shall make substantial likelihood determination 15 days after receiving information from whistleblower. Substantial Likelihood: Agency investigation more likely than not to substantiate allegations. Follows MSPB definitions of gross waste of funds, gross mismanagement, and abuse of authority.

12 Whistleblower Disclosures If OSC determines there is substantial likelihood that information shows one or more categories of wrongdoing, g OSC must transmit information to agency head. Agency head required to investigate and submit written report of findings to OSC within 60 days. 5 USC U.S.C (c)(1). OSC seeks input from whistleblower, who has15 days to comment on agency report. 5 U.S.C. 1213(e)(1). OSC reviews agency report and whistleblower comments to determine if the report contains information required by statute and if findings appear reasonable. 5 USC U.S.C (d)&(e)(2).

13 Whistleblower Disclosures OSC transmits agency s report and any whistleblower comments to the President and the Congressional oversight committees with jurisdiction over the agency involved. If OSC does not refer the disclosure to the agency for investigation, then OSC informs the whistleblower: Reasons why disclosure may not be further acted upon; and Directs the whistleblower to other offices available for receiving disclosures. 5 U.S.C. 1213(g)(3).

14 Prohibited Personnel Practices

15 PPPs Generally 5 U.S.C. 2302(b) OSC receives about 3,000 complaints of PPPs from federal workers each year. OSC investigates and prosecutes allegations of PPPs, and can obtain corrective and disciplinary i action, including suspensions, removals, debarment, and fines. OSC may seek a stay of a personnel action pending an ongoing investigation. In some cases, individual federal workers may proceed with their own cases should OSC determine not to prosecute their cases. 15

16 New PPP Complaints FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY

17 PPPs Coverage Coverage generally extends to all Executive Branch civilian employees and applicants for employment. Exemptions Intelligence agencies, such as CIA and NSA US U.S. Postal Service (except nepotism provision) Postal Rate Commission Non-appropriated fund and Veterans Canteen Service National Guard Legislative and Judicial Branches General Accounting Office 17

18 PPPs 13 Specific Prohibitions 1. Illegally discriminate for or against any employee/applicant. 2. Solicit or consider improper employment recommendations. 3. Coerce an employee s political activity. 4. Obstruct a person s right to compete for employment. 5. Influence any person to withdraw from competition for a position. 6. Give unauthorized preference or improper advantage. 7. Employ or promote a relative. 8. Retaliate against a whistleblower, whether an employee or applicant. 9. Retaliate against employees or applicants for filing an appeal. 10. Unlawfully discriminate for off duty conduct. 11. Knowingly violate veterans preference requirements. 12. Violate any law, rule, or regulation which implements or directly concerns the merit system principles. 13. Implement nondisclosure agreements. 18

19 PPPs Four General Categories Discrimination Hiring practices that offend the merit system Retaliation for protected activity (including whistleblowing) Catch-all: violation of law, rule, or regulation that implement merit systems principles (including constitutional rights) 19

20 PPPs Discrimination Discrimination prohibited based on the following gprotected characteristics: Race, color, sex, religion, national origin, disability, and age Marital status and political affiliation Sexual orientation and gender identity (conduct which does not adversely affect job performance) OSC has MOU with EEOC regarding overlapping jurisdiction. 20

21 PPPs Hiring Practices Consider improper job references Obstruct the right to compete Influence withdrawal from competition Give unauthorized preferences Engage in nepotism Knowingly violate veterans preferences Violate rules that implement merit system principles 21

22 PPPs Hiring Practices Examples Legal or Illegal? Accidentally losing a person s application? Considering a reference from a political source who knows the applicant s family well, but has not worked with the applicant? Counseling an applicant that she may not like the job? Encouraging gan employee to withdraw an application by ypromising a better job down the line? Telling others who the preferred candidate may be? 22

23 PPPs Retaliation Two Provisions Retaliation against whistleblowers. 5 USC 2302(b)(8). Violation of any law, rule, or regulation Gross mismanagement Gross waste of funds Abuse of authority Substantial and specific danger to public health and safety Retaliation against employees or applicants for filing appeals. 5 USC 2302(b)(9). Exercise of appeal, complaint, or grievance rights Testimony or other assistance to person exercising such rights Cooperation with or disclosures to OSC or OIG Refusal to obey an order that would require violation of law 23

24 PPPs Retaliation Prima Facie Case Protected disclosure (b)(8) or protected activity (b)(9) Reasonable belief, even if not accurate Made to any person (even outside chain of command) Personnel action taken, not taken, or threatened Actual or constructive knowledge of disclosure or activity Disclosure or activity was contributing factor in personnel action May be established by knowledge/timing alone Often established by circumstantial evidence 24

25 PPPs Retaliation Affirmative Defense Agency must show by clear and convincing evidence that it would have taken the same action in absence of disclosure or activity Factors to be considered: Strength of evidence supporting personnel action Existence and strength of motive to retaliate Treatment of similarly-situated employees who are not whistleblowers 25

26 PPPs Catch-All Provision Take or fail to take a personnel action, in violation of a law, rule, or regulation that implements or directly concern a merit system principle Examples Legal or Illegal? 121-day detail to higher grade without competition? Retaliation for contacting Congress? Inhibiting free speech? Personnel action with false statement? 26

27 Enforcement and Remedies in PPP Claims

28 PPPs Stays of Personnel Actions OSC can seek informal and formal stays of personnel actions. OSC requests that an agency informally agree to delay a personnel action pending the investigation if it has reasonable grounds to believe a personnel action has been taken or will be taken as a result of a PPP. If unsuccessful, OSC may seek a 45-day stay with the MSPB, which is typically granted unless a Board member determines that the requested stay would not be appropriate.

29 PPPs Corrective Action If OSC finds PPP committed, OSC issues letter to agency requesting corrective action. In most cases, agencies agree and case resolved. Corrective action may include: Placing individual in the position she would have been in had no wrongdoing occurred (e.g., rescind job suspension; restore job) Reasonable and foreseeable consequential damages (e.g., back pay and benefits, medical costs, travel expenses, attorney s fees) If agency does not act reasonably to correct PPP, OSC may petition MSPB for corrective action.

30 PPPs Disciplinary Action If OSC finds PPP warrants disciplinary action, OSC will seek disciplinary i action from the agency, the MSPB, or the President. Disciplinary action may include: Reprimand, suspension, reduction in grade, or removal Debarment from federal employment (up to 5 years) Civil penalties (up to $1,100) Charged agency officials may respond have legal representation have Charged agency officials may respond, have legal representation, have hearing before MSPB ALJ, and obtain a written decision.

31 PPPs Private Enforcement In certain circumstances, federal employees may seek to enforce their PPP claims directly before the MSPB. Private enforcement includes: Individual rights of actions (IRAs) to persons alleging (b)(8) and certain (b)(9) retaliation claims Appeals of certain personnel actions, including removal, reductions in grade or pay, suspensions of more than 14 days, and furloughs Veterans benefits claims

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33 Recent Developments

34 Whistleblower Protection Enhancement Act of 2012 Clarified law, closed loopholes, restored original intent of WPA Protected disclosures concerning censorship of scientific integrity Restricted certain agency nondisclosure policies Allowed OSC to file amicus curiae briefs and provide all-circuit review of whistleblower appeals Extended WPA protections to TSA screeners Created new whistleblower ombudsman

35 DHS v. MacLean In May 2014, the Supreme Court granted certiorari in this case to determine the scope of protection in the Whistleblower Protection Act (WPA). DHS removed plaintiff, a Federal Air Marshal, after concluding that he violated an agency regulation by disclosing sensitive security information to the media regarding the cancellation of air marshal service on certain flights for a specific time period. Siding with OSC s position as amicus curiae before the MSPB, the Federal Circuit g p, held that the WPA s specifically prohibited by law proviso which eliminates whistleblower protection for disclosures made in violation of a law does not apply to disclosures made in violation of agency regulations.

36 Questions

37 Thank You! Mark Cohen, Principal Deputy Special Counsel Louis Lopez, Associate Special Counsel For more information, please visit our website: U.S. Office of Special Counsel 1730 M Street, NW, Suite 300 Washington, DC 20036