This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm that specializes in DC, Maryland, Virginia, federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry
The U.S. Office of Special Counsel (OSC) investigates many different types of issues. OSC’s authority comes from several federal laws. The primary mission of the OSC is to protect federal employees and applicants from Prohibited Personnel Practices (PPP)s. The OSC has been in the news lately for its defense of probationary federal employees who were recently terminated.
What are Prohibited Personnel Practices?
The OSC’s primary mission is to safeguard the merit system by protecting federal employees and applicants from PPPs, especially reprisal against whistleblowing. The OSC is in charge of investigating many different areas of law. The 14 PPPs that the OSC investigates include:
- Discrimination: Complaints about discrimination on race, color, religion, sex, national origin, age, disability (or handicapping condition), marital status, or political affiliation;
- Inappropriate Recommendations: Considering inappropriate recommendations based on political connections or influence;
- Coercing Political Activity: (Hatch Act cases) Engaging in, or coercing others to engage in the support of political candidates;
- Obstructing Competition for Employment: Agency officials are barred from intentionally deceiving or obstructing others from competing for federal employment;
- Influencing Withdrawal from Competition: Similar to obstruction, it is illegal for an agency official to improperly influence an individual to withdraw from federal employment competition in order to benefit or disadvantage another person’s employment prospects;
- Granting Unauthorized Advantage: Also similar to influence or obstruction, federal agency officials are prohibited from granting unauthorized advantages to benefit others;
- Nepotism: The unlawful hiring or promotion of a relative;
- Whistleblower Retaliation: One of the most important PPPs. This involves retaliation taken against a federal employee for their disclosure of: (1) a violation of law, rule, or regulation; (2) gross mismanagement; (3) gross waste of funds; (4) an abuse of authority; or (5) a substantial and specific danger to public health or safety. In many instances, these types of cases can later be taken to the Merit Systems Protection Board (MSPB);
- Other Types of Retaliation: Retaliation for filing a grievance, giving testimony, cooperating with the OSC or Inspector General, or refusal to obey an unlawful order;
- Other Types of Discrimination: This section prohibits employees from penalizing employees for conduct that has not adversely impacted their performance;
- Veterans’ Preference: Federal agencies are barred from taking actions that would violate veterans’ preference requirements.
- Violating Rules That Implement a Merit System Principle: This is a catch-all provision. This PPP bars federal agency officials from taking–or failing to take– a personnel action that violates any other civil service law or regulation. This type of violation could be applied to most OSC complaints.
- Imposing Nondisclosure Agreements that Bar Whistleblowing: In the past, some federal agencies, as part of settlement agreements with federal employees, have attempted to bar them from speaking with OSC or Congress about their complaints. This PPP makes any attempt by an agency to do so illegal.
- Accessing Medical Records in Furtherance of Another PPP: Federal officials are prohibited from accessing the medical records of other federal employees or applicants to facilitate a violation of any of the other 13 PPPs. This PPP is not as common as some others.
How Does the OSC Investigate PPP Complaints?
When an individual files an OSC complaint, the OSC will open a file for investigation. The individual filing the complaint will get a notice from the OSC that a complaint has been opened. The level of investigation conducted varies depending on the facts of the case. The OSC investigates these claims and has the ability to prosecute violations of PPPs by obtaining an agency agreement or by seeking action by the Merit Systems Protection Board (MSPB).
How Can OSC Enforce Their Findings?
If the OSC makes a determination that a PPP complaint should be prosecuted, then they can seek a stay of the personnel action. They can also seek corrective action. The OSC will send a letter to the federal agency asking them to resolve a violation of law. For example, if a complaint of an improper personnel action was found to be true, the OSC can request that the federal employee receive back pay or other remedies. Federal agencies will often agree to resolve cases with the OSC without the need for enforcement.
In cases where a PPP has been committed, the OSC can seek disciplinary action against the federal employee involved. These cases are often resolved through an agreed settlement regarding the disciplinary action to be imposed. If a resolution is not reached, the OSC can petition for disciplinary action against the federal employee directly. One example of when this may occur involves Hatch Act cases.
How Can You Enforce an OSC Complaint?
In whistleblower cases, if the OSC does not find whistleblower retaliation, an individual can usually take further action by filing with the MSPB. This is often the case as the OSC has limited resources compared to the volume of whistleblower cases it receives.
Having Legal Representation
If you have been contacted as a possible target of investigation by the OSC, then you have the right to have an attorney defend you. It is very important to obtain legal defense against allegations made by the OSC. You will also need legal representation if you have been targeted for retaliation or subjected to other illegal actions as a result of whistleblower activities. We represent both complainants and those accused before the OSC.
Contact Us
Our law firm represents and advises federal employees in OSC cases. We represent individuals accused of wrongdoing by the OSC and individuals filing OSC complaints. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or visit our website to schedule a consultation.
