By Neil A.G. McPhie
Termination Actions Still Need to Be Aggressively Challenged
A new study shows federal employees enjoyed a 99.43 percent job security rate in the 2010 fiscal year and suggests some of them are more likely to die than get laid off or fired.
The federal government, during the previous fiscal year, fired 11,668 employees, or 0.55 percent of its 2.1 million workforce. Only 385 federal employees were laid off during the same period, according to the USA Today analysis of an Office of Personnel Management database, which excluded data from the U.S. Postal Service and uniformed military personnel.
In fact, the Federal Communications Commission and Federal Trade Commission, which have a combined workforce of 3,000, did not lay off or fire any of their employees. Meanwhile, the Small Business Administration fired six employees, laid off none and lost 17 to death.
This study can provide comfort to federal employees – especially those who are being targeted in Congress’ debt reduction plans. Nevertheless, they should not allow themselves to get lulled into a false sense of security. One important reason why federal employees’ job security rate is so high is that many of them vigorously assert their rights when their civil service careers are threatened.
While USA Today noted that poor performance, stealing and sexual harassment were common reasons cited for federal employee firings, unlawful discrimination also frequently influences termination actions. During the 2010 fiscal year, federal employees filed 1,905 complaints with the Equal Opportunity Commission (EEOC) in which termination was cited as an issue of alleged discrimination. Reprisal was the top basis of alleged discrimination, accounting for 32 percent of the termination-related complaints. Other bases for alleged discrimination included age (27 percent), physical disability (23 percent) and race (22 percent), according to the EEOC’s latest Annual Report on the Federal Workforce.
Federal employees who believe discriminatory factors influenced their manager’s decision to fire them have 45 days after the discrimination occurred or effective date of a personnel action to contact an EEOC counselor. In situations where a dispute cannot be resolved through counseling or mediation, the employee is issued a Notice of Right to File A Discrimination Complaint from the EEO Counselor. Upon receiving this notice, the federal employee has 15 days to carry out that action.
Federal employees who have received termination notices should contact a federal sector employment lawyer, who can ensure that all of their rights are asserted – including their due process rights. Due to the U.S. Court of Appeals for the Federal Circuit’s February 2011 decision in Ward v. U.S. Postal Service, the U.S. Merit Systems Protection Board has become increasingly intolerant of federal agencies that violate employees’ due process rights guaranteed by the Fifth Amendment by not being completely forthcoming about the reasons behind termination actions.
Neil McPhie is the Virginia Managing Partner for Tully Rinckey PLLC and concentrates his practice in federal sector employment and labor law. He can be reached at firstname.lastname@example.org. To schedule a meeting with any of Tully Rinckey PLLC’s federal sector employment attorneys call 703- 525-4700.