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August 2011 Archives

More Employee Protection From the OSC

Developments at the OSC: On August 11, 2011, the U.S. Office of Special Counsel (OSC) announced another case where OSC intervention resulted in a stay of an adverse action against an employee.  OSC's action in the matter not only ultimately resulted in reversal of the adverse action for the employer, but further resulted in the employing agency--the U.S. Department of Energy (DOE)--changing its suspension policy across the board.

EEOC and OPM Promise Rigorous Enforcement of Equal Pay Laws

This development from the EEOC and OPM:  To improve the Federal Government's role as a model employer and to close the continued wage gap between men and women, the Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM) issued a joint letter in which they have pledged to ensure rigorous enforcement of the equal pay laws for all federal employees.

OPM to Extend Appointment Benefit to Same-Sex Domestic Partners

Developments at OPM:  In a notice of proposed rulemaking published in the Federal Register on July 28, 2011, the Office of Personnel Management (OPM) proposed changes to existing regulations to extend an existing noncompetitive appointment authority for federal civil service positions to same-sex domestic partners.  The notice of proposed rulemaking proposed revisions to 5 C.F.R. § 315.608.   The present regulation provides a noncompetitive appointment benefit for federal employees and their immediate family members residing with them for cases where the federal employee had served 52 weeks or more at an overseas posting.  The present regulation only includes spouses and children under age 23 who accompanied the federal employee; OPM's proposal would add domestic partners to that eligibility list, and incorporating a definition of 'domestic partner' into the regulation.  In the background section of the notice, OPM explained that the proposed rulemaking was designed to implement two memoranda issued by President Obama aimed at extending benefits to qualifying same sex domestic partners that were previously reserved to married couples, within the bounds of present law.  Comments on this notice of proposed rulemaking must be received by September 26, 2011.

Developments at the MSPB: More Due Process Protections

Developments at the MSPB:  The MSPB continues its assault on due process violations by agencies when taking adverse personnel decisions against federal government employees.  In this latest example, a poorly written complaint by the Office of Special Counsel (OSC) violated the due process rights of government employee Jeffrey E. Smith by failing to place Mr. Smith on notice of his alleged violations, the MSPB recently held.  OSC's complaint alleged that Mr. Smith violated the Hatch Act for engaging in political activity while on duty and while in a government building on a government computer.  However, OSC's complaint lacked necessary particularity and supporting facts.  The complaint failed to properly identify referenced emails and documents Mr. Smith allegedly drafted or edited, and it did not contain any attachments or copies of materials which constituted the bases for its charges.  The MSPB made clear that outlining each specification of a complaint "is precisely what OSC is required to do," and that OSC's failure to do so prevented Mr. Smith from defending himself against OSC's allegations and did not inform the judge as to what must be adjudicated.  The MSPB accepted an amended OSC complaint as a new complaint so that Mr. Smith may exercise his full procedural rights if the new complaint complies with constitutional and regulatory requirements.  Special Counsel v. Smith, 2011 MSPB 69 (July 12, 2011).

Whistlebower Settlement: Continued Signs of Life from the New Special Counsel

Developments at the OSC: The U.S. Office of Special Counsel (OSC) recently reached a settlement agreement on behalf of whistleblower Ken Downey, a long-time supervisor with the Blaine (Washington) Sector Communication Center of the U.S. Department of Homeland Security's Customs and Border Protection (CBP).  OSC investigations revealed that CBP illegally retaliated against Mr. Downey for making a series of whistleblower disclosures of agency misconduct by proposing to fire Mr. Downey, suspending him, transferring him indefinitely to another border patrol station, issuing him a reprimand, removing his supervisory duties, and failing to promote him despite a favorable recommendation from his supervisor.

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