# Presentation: 572636

## Slide 1

_**Page**__**	**__**General Topics**_
- 3	INTRODUCTION
- 6	RESPONSIBILITIES OF AGENCY OFFICIALS
- 8	MERIT SYSTEM PRINCIPLES; TITLE 5 		COVERAGE
- 14	PROHIBITED PERSONNEL PRACTICES; 		WHISTLEBLOWING
- 27	ELECTION OF REMEDIES
- 30	OFFICE OF SPECIAL COUNSEL (OSC) 		JURISDICTION AND FUNCTIONS
- 39	MERIT SYSTEMS PROTECTION BOARD
- 41	REMEDIES
- 53	OSC DISCLOSURE HOTLINE
- 56	POLITICAL ACTIVITY (HATCH ACT)
- 75	OTHER OSC JURISDICTION: VETERANS 		EMPLOYMENT AND REEMPLOYMENT
- 78	FURTHER RESOURCES AND CONTACT 		INFORMATION

##  INTRODUCTION

- 	Title 5 of the U.S. Code, at § 2302(c), makes agency heads and officials with delegated personnel authority responsible, in consultation with the U.S. Office of Special Counsel (OSC), for informing federal employees of their rights and remedies under chapters 12 and 23 of title 5. Those chapters address rights and remedies of employees in connection with the following subjects:
- prohibited personnel practices;
- whistleblower disclosures;
- political activity;
- access to the U.S. Office of Special Counsel (OSC); and
- access to the U.S. Merit Systems Protection Board.
- 	The OSC has developed this guide to federal employee rights and remedies under chapters 12 and 23 of title 5, as an aid to agencies in carrying out their statutory responsibility under § 2302(c). While the focus of the guide is on federal employee rights and remedies under title 5, information is included about rights and remedies under other laws enforced by the OSC.

## 	This guide is designed for use in a variety of presentation formats. The first part consists of a discussion, with accompanying graphic slides, of an array of topics related to rights and remedies of federal employees under chapters 12 and 23 of title 5. The second part consists of full-page versions of the the graphic slides.

- 	The subject headings of many slides include citations to statutory or regulatory provisions related to the topic(s) covered in the slide. For the most part, the slides simply outline those provisions. Readers should consult the actual statutes and regulations cited for the full text.
- 	This guide is provided for the benefit of government agencies, their employees, and others interested in employee rights and remedies under laws enforced by the OSC, with particular reference to chapters 12 and 23 of title 5. It is intended to serve solely as a training aid. It is not intended to, nor does it, create or confer substantive or procedural rights enforceable by government agencies, current or former government employees or applicants for employment, or the public.

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## Slide 1:	TOPICS

**Slide 2:****	****KEY LAWS**
- 	Slide 1 introduces the topics that are the focus of this presentation, including rights and remedies of federal employees in connection with prohibited personnel practices, whistleblower disclosures, and political activity. Slide 2 provides citations to the laws that enacted provisions outlined in following slides. Many of those provisions are found in chapters 12 and 23 of title 5 of the U.S. Code.

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## Slide 3:	RESPONSIBILITIES OF AGENCY 			OFFICIALS

**Slide 3:****	****RESPONSIBILITIES OF AGENCY ****	****	****	****OFFICIALS**
- 	The Civil Service Reform Act (CSRA) was enacted in 1978 to strengthen and protect the federal government's merit system and employees and applicants covered by that system. One provision of the act, at § 2302(c) of title 5, made heads of agencies, and officials with delegated personnel authority, responsible for: (1) preventing prohibited personnel practices, and (2) complying with and enforcing civil service laws, rules, and regulations, and other aspects of personnel management.

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## 	In 1994, Public Law 103-424 amended § 2302(c) to add the responsibility of ensuring — in consultation with the OSC — that employees are informed of their rights and remedies under chapters 12 and 23 of title 5. Congress acted after the General Accounting Office reported that agencies had not taken sufficient measures to educate federal employees about their rights and remedies, especially in connection with whistleblowing. Slide 3 enumerates the responsibilities of agency heads and officials with personnel authority under § 2302(c), as amended.

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## Slides 4-5:	MERIT SYSTEM PRINCIPLES

- 	The CSRA established nine standards — known as “merit system principles” — to serve as the foundation of the federal merit system of employment. They exist to guide federal government officials with personnel authority — including those who recommend, approve, or direct others to take any personnel action — in the proper and lawful exercise of that authority.
- 	Slides 4 and 5 outline the nine merit system principles. The U.S. Office of Personnel Management’s Office of Merit Systems Oversight and Effectiveness can be contacted by e-mail (at _*effectiveness@opm.gov*_) for more information on training materials about this topic.

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## Slide 9

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## Slide 6:	COVERED PERSONNEL ACTIONS

**Slide 7:****	****PERSONNEL AUTHORITY**
**Slide 8:****	****COVERED POSITIONS**
**Slide 9:****	****NON-COVERED POSITIONS**
**Slide 10:****	****COVERED AGENCIES**
**Slide 11:****	****NON-COVERED AGENCIES**
- 	In addition to the merit system principles, the CSRA, as amended, also defines 12 prohibited personnel practices (outlined in the next section), the commission of which undermines the federal merit system and the rights of covered employees and applicants. Prohibited personnel practices are violations of law, usually occurring when "covered personnel actions" are taken by someone with "personnel authority" in relation to current or former federal employees in "covered positions" (or applicants for such positions) in "covered agencies." Slides 6-11 highlight in general terms the meaning of these terms, as defined or used in chapters 12 and 23 of title 5.

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## Slide 11

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## Slide 12

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## Slide 13

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## Slides 12-25:	PROHIBITED PERSONNEL 			PRACTICES

- 	Section 2302(b) of title 5 provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not take certain actions defined as “prohibited personnel practices.” These 12 violations of law, including reprisal for whistleblowing, are outlined in slides 12-25. An example of each violation is also provided.
-  	It should be noted that some prohibited personnel practices — such as reprisal for whistleblowing, reprisal for the exercise of an appeal right, and the violation of a law, rule or regulation implementing or concerning a merit system principle — are based on the occurrence of a personnel action. Most other prohibited personnel practices do not require the occurrence of a personnel action — only some action taken in relation to the exercise of personnel authority.

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## Slide 15

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## Slide 16

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## Slide 17

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## Slide 18

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## Slide 19

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## Slide 20

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## Slide 21

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## Slide 26:	WHISTLEBLOWER PROTECTION

**Slide 27:****	****PROTECTED WHISTLEBLOWER ****	****	****	****DISCLOSURES (TO SPECIAL COUNSEL / ****	****	****INSPECTORS GENERAL)**
**Slide 28:****	****PROTECTED WHISTLEBLOWER ****	****	****	****DISCLOSURES (TO OTHERS)**
**Slide 29:****	****ELEMENTS OF PROOF: REPRISAL FOR ****	****	****WHISTLEBLOWING**
**Slides 30-33:****	****PROTECTED WHISTLEBLOWER ****	****	****	****DISCLOSURES**
- 	The contributions to public service made by employees who disclose abuses of power and other wrongdoing in government have been recognized at the highest levels of government for decades. President Kennedy, for example, evoked this theme in an address in the summer of 1963. Congressional enactment of the CSRA in 1978 resulted in the creation of major new statutory protections for federal employee whistleblowers. President Bush endorsed even stronger protections passed by Congress in the Whistleblower Protection Act of 1989. Slide 26 illustrates

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## this broad-based support of whistleblower protection over the years.

- 	Slides 27-33 outline the elements of legally protected whistleblower disclosures — to the Special Counsel, federal Inspectors General, and others. The elements include criteria set forth in title 5, and in whistleblower reprisal cases decided by the Merit Systems Protection Board and the Court of Appeals for the Federal Circuit. Reprisal for whistleblowing is a prohibited personnel practice defined by law at 5 U.S.C. § 2302(b)(8).

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## Slide 24

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## Slide 25

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## Slide 26

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## Slide 34:	ELECTION OF REMEDIES: PROHIBITED 		PERSONNEL PRACTICES

**Slide 34:****	****ELECTION OF REMEDIES: PROHIBITED ****	****	****PERSONNEL PRACTICES**
**Slide 35:****	****ELECTION OF REMEDIES: ****	****	****	****WHISTLEBLOWER REPRISAL**
**Slide 36:****	****OSC DEFERRAL POLICY**
- 		Title 5 requires employees who believe that they have been the victims of prohibited personnel practices (except

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## discrimination), and who are covered by a collective bargaining agreement, to choose between several available legal remedies, including the OSC. Other federal employees in certain agencies who believe that they have been subjected to reprisal for whistleblowing must also choose between two legal avenues of redress, also including the OSC. Slides 34 and 35 identify the legal options for both categories of employees.

- 		Employees required to choose from the remedies listed in slides 34 and 35 may find it useful to know about the OSC policy on the handling of certain allegations of discrimination. Slide 36 outlines the policy, which entails deferral of such allegations to other agencies described on the slide.

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## Slide 29

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## Slide 37:	OFFICE OF SPECIAL COUNSEL (OSC)

**Slides 38-39:**	**OTHER OSC JURISDICTION**
**Slide 40:**	**OSC PROGRAM UNITS**
- 	The CSRA first established the OSC in 1979 as the autonomous investigative and prosecutorial arm of the U.S. Merit Systems Protection Board (MSPB). The

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## Whistleblower Protection Act (WPA) of 1989 made the OSC an independent agency within the executive branch, separate from the MSPB.

- 	Slide 37 outlines the OSC's primary enforcement and other responsibilities under chapter 12 of title 5, as amended by the WPA. Slides 38 and 39 describe other responsibilities performed by the OSC under chapter 12. Slide 40 contains a chart depicting the organization of the program units responsible for implementing OSC authorities under title 5.

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## Slide 32

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## Slides 41-45:	HOW THE OSC PROCESSES A 			COMPLAINT

- 	In graphic and text form, these slides outline OSC procedures for handling and resolving complaints alleging violations of law, rule or regulation. These procedures include the use of alternative dispute resolution techniques in efforts to resolve selected prohibited personnel practice complaints.

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## Slide 34

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## Slide 35

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## Slide 46:	OSC INVESTIGATIVE AUTHORITIES

**Slide 47:****	****OSC INVESTIGATIONS: FEDERAL ****	****	****	****AGENCY / EMPLOYEE RESPONSIBILITIES**
**Slide 48:****	****LIMITS ON OSC DISCLOSURES OF ****	****	****	****INFORMATION**
- 	Slide 46 outlines the statutory authorities exercised by the OSC when investigating possible prohibited personnel practices and other violations of civil service law, rule or regulation; violations of the Hatch Act; and denials of federal employment and reemployment rights of veterans and

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## reservists. The OSC investigates alleged violations of law or regulation by federal agencies, as a basis for possible corrective action; it also investigates possible violations by individual agency employees, as basis for appropriate disciplinary action.

- 	As indicated earlier (see discussion of slide 3), heads of agencies, and officials who exercise personnel authority, share a responsibility with the OSC for preventing prohibited personnel practices, and for enforcing civil service laws, rules, and regulations, and other aspects of personnel management. When the OSC investigates possible violations of these civil service laws, rules or regulations, agencies and employees have certain legal responsibilities in support of the investigation. These responsibilities are summarized in slide 47.
- 	Information received by the OSC in connection with its investigations — from complainants, witnesses, and subjects (*i.e*., persons whose actions are under review) — is often sensitive or personal in nature. Slide 48 briefly describes the OSC’s approach to the handling of investigative information in its files.

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## Slide 38

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## Slides 49-50:	MERIT SYSTEMS PROTECTION BOARD 		(MSPB)

**Slides 49-50:****	****MERIT SYSTEMS PROTECTION BOARD ****	****	****(MSPB)**
- 	The CSRA established the MSPB as an independent agency in the executive branch, responsible for hearing and deciding employee appeals from agency actions (including those involving alleged prohibited personnel practices), and cases brought by the Special Counsel involving prohibited personnel practice or Hatch Act violations. Slides 49 and 50 highlight significant MSPB authorities in connection with those responsibilities.

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## Slide 40

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## Slide 51:	STAYS OF PERSONNEL ACTIONS

- 	In appropriate cases, the OSC can seek to obtain stays of personnel actions involved in complaints under investigation. The OSC obtains stays through negotiation with the agency involved, or through the filing of a petition with the MSPB asking it to order a stay. This slide outlines basic features of this authority.

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## Slide 52:	CORRECTIVE ACTION

**Slide 53:****	****CORRECTIVE ACTION: 5 U.S.C.**
**	****	****§ ****	****2302(b)(11)**
**Slide 54:****	****CORRECTIVE ACTION: ****	****	****	****	****WHISTLEBLOWER REPRISAL MATTERS**
**	**
- 	The OSC can seek corrective action, as appropriate, from federal agencies in most prohibited personnel practice cases. Corrective action can be obtained in several ways, including by negotiation, or litigation before the MSPB. Corrective action may also occur through an administrative dispute resolution program to be established by the OSC by the end of 1999. Slide 52 describes the types of corrective action that can be obtained by the OSC.
- 	Slide 53 describes a new source of corrective action for certain violations of veterans’ preference requirements. The Veterans Employment Opportunity Act (VEOA) of 1998 created a new prohibited personnel practice, at 5 U.S.C.
- § 2302(b)(11), to specifically address such violations. (Prior to the VEOA, the OSC dealt with violations of veterans’ preference requirements as another prohibited

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## personnel practice — now found at 5 U.S.C. § 2302(b)(12) 

- — involving the taking of a personnel action in violation of a
- law, rule or regulation implementing or directly concerning a merit system principle.) The VEOA established a dual enforcement mechanism for the new prohibited personnel practice: the Veterans Employment and Training Service (VETS) at the Department of Labor obtains any appropriate corrective action; the OSC pursues any appropriate disciplinary action. Slide 53 outlines the VETS’ corrective action role.
-  	In cases involving reprisal against whistleblowers, the types of corrective action that the OSC can seek do not differ from corrective actions that can be sought for other prohibited personnel practices. The legal standard for proving whistleblower reprisal, however, is different. The WPA changed the standard to make it easier to prove that a reprisal has occurred. Slide 54 defines the statutory basis for seeking corrective action in cases alleging reprisal for whistleblowing.
- 	_*Note*_*:* Agencies remain free to provide corrective action on their own initiative for employees, former employees, or applicants adversely affected by the commission of a prohibited personnel practice.

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## Slide 44

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## Slide 55:	CONTRIBUTING FACTOR

**Slides 56-57:****	****CLEAR AND CONVINCING EVIDENCE ****	****	****(AGENCY DEFENSE)**
- 	The MSPB can order corrective action if it finds that a whistleblower disclosure was a “contributing factor” in a personnel action. Slide 55 includes the definition of the term “contributing factor,” as developed in case law; it also shows methods by which the role of a disclosure as a contributing factor in a personnel action can be shown.

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## 	If a protected disclosure is found to be a contributing factor in a personnel action against a federal employee, former employee or applicant for employment, the agency involved can defend the action by establishing that it would have taken the same action in the absence of the disclosure. In an effort to strengthen protections for whistleblowers, title 5 imposes a higher burden of proof on agencies in these cases — i.e., agencies must prove their defense by clear and convincing evidence (not merely preponderant evidence, the burden of proof in other prohibited personnel practice cases). The MSPB will order appropriate corrective action if an agency does not establish its defense by this higher burden. Slides 56 and 57 summarize these concepts.

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## Slide 47

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## Slides 58-61:	DISCIPLINARY ACTION

- 	In addition to corrective action, the OSC is authorized by law to seek disciplinary action for the commission of prohibited personnel practices (as well as for violations of the Hatch Act and other laws and regulations under its jurisdiction). The OSC usually does so by filing a complaint with the MSPB, seeking disciplinary action against the employee(s) believed to have violated the law. Title 5 prescribes other mechanisms for disciplinary actions involving alleged prohibited personnel practices by members of the uniformed services, contractor employees and non- Foreign Service personnel appointed by the President and confirmed by the Senate. Slides 58-61 outline the scope of the OSC’s disciplinary action authority in connection with its investigations; penalties that can be ordered by the MSPB; and procedural rights of employees charged by the OSC.
- 	_*Note*_*:* Sec. 1214(f) of title 5 provides that while any prohibited personnel practice matter is pending at the OSC, no disciplinary action may be taken by the agency involved against an employee for the prohibited activity under investigation, or any related activity, without the approval of the OSC.

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## Slide 49

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## Slide 50

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## Slides 62-64:	INDIVIDUAL RIGHT OF ACTION (IRA)

- 	The WPA created a new procedural remedy — *i.e*., the IRA — for federal employees, former employees or applicants for employment who believe that they are victims of an agency reprisal for whistleblowing. An IRA is only available to individuals who have first sought corrective action from the OSC for the alleged reprisal. If the OSC closes the matter, or fails to seek corrective action within 120 days of the request for corrective action, then the individual can pursue corrective action by filing an IRA with the MSPB. Slides 62-64 outline key features of this remedy.

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## Slide 52

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## Slide 65:	OSC INTERVENTION

- 	This slide briefly outlines OSC’s legal authority to intervene in legal proceedings before the MSPB.

**Slides 66-67:****	****OSC WHISTLEBLOWER DISCLOSURE ****	****	****CHANNEL**
**Slide 68:****	****HOW THE OSC PROCESSES A ****	****	****	****DISCLOSURE**

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## 	Federal employees, former employees, and applicants for employment can use the OSC as a secure channel to health and safety. The OSC is not authorized to investigate allegations reported to its whistleblower disclosure hotline.

- 	However, when the OSC determines that there is a substantial likelihood that the information discloses the kind of wrongdoing described in title 5, it can require the head of the agency involved to investigate the matter, and to issue a report on its findings for review by the OSC and the whistleblower. The OSC will not divulge the identity of a whistleblower without his or her consent.
- 	Three key respects in which this disclosure channel differs from other whistleblower hotline channels, are outlined in slides 66-67. The chart on slide 68 outlines OSC procedures in receiving and processing allegations received through its whistleblower disclosure hotline.

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## Slide 55

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## Slides 69-70:	FEDERAL HATCH ACT

- 	In 1993, Congress enacted legislation substantially revising Hatch Act provisions on allowable and unallowable political activity by federal employees. These slides list basic activities permitted for most federal employees under the Hatch Act, as amended.

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## Slide 57

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## Slide 71-73:	FEDERAL HATCH ACT DOs

- 	These slides list activities that federal employees _may_ engage in under the Hatch Act, as amended in 1993. Partisan political activity by certain categories of federal employees continues to be restricted under the act. Later slides list those federal employees whose political activity continues to be restricted.

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## Slide 59

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## Slide 74-75:	FEDERAL HATCH ACT DON'Ts

- 	These slides list activities that federal employees may _not_ engage in under the Hatch Act, as amended. Federal employees should also be aware that certain political activities can also be criminal offenses under title 18 of the U.S. Code.

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## Slide 76:	FEDERAL HATCH ACT: RESTRICTED 		AGENCIES

**Slide 77:****	****FEDERAL HATCH ACT: ****	****RESTRICTED ****	****	****EMPLOYEES**
- 	When Congress amended the Hatch Act in 1993 to permit more political activity by federal employees, it excluded certain agencies (slide 76) and categories of employees (slide 77) from the coverage of the new

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## provisions. These agencies and employees continue to be subject to Hatch Act provisions in effect before the 1993 amendments. Affected employees in these agencies, like federal employees generally, can contact the OSC for answers to questions about political activity in which they may wish to engage. (Contact information is shown in Slide101, below.)

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## Slides 78-79:	FEDERAL HATCH ACT DOs FOR 			RESTRICTED EMPLOYEES

- 	These slides list activities in which federal employees whose political activity is restricted by the Hatch Act _may_ engage.

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## Slide 64

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## Slide 80-82:	FEDERAL HATCH ACT DON'Ts 			FOR RESTRICTED EMPLOYEES

- 	These slides list prohibitions applicable to those categories of federal employees whose partisan political activity continues to be restricted under the Hatch Act, as amended. Again, federal employees should remember that certain political activities can also be criminal offenses under title 18 of the U.S. Code.

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## Slide 66

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## Slides 83-89:	FREQUENTLY ASKED QUESTIONS 			(FEDERAL HATCH ACT)

**Slides 83-89:****	****FREQUENTLY ASKED QUESTIONS ****	****	****	****(FEDERAL HATCH ACT)**
- 	These seven slides feature frequently asked questions about political activity by federal employees under the Hatch Act, followed by answers to each question.

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## Slide 68

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## Slide 69

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## Slide 70

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## Slides 90-91:		FEDERAL HATCH ACT: OTHER 				COVERAGE

**Slide 92:****	****	****FEDERAL HATCH ACT: ****	****	****	****	****DESIGNATED COMMUNITIES**
- 	Certain Hatch Act provisions are limited in their application to particular categories of employees associated with the President and Vice President, and to particular communities with large concentrations of residents employed by the federal government. These slides highlight those provisions.

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## Slide 93:	OTHER HATCH ACT QUESTIONS

**Slide 94:****	****PENALTIES FOR VIOLATION (FEDERAL ****	****	****HATCH ACT)**
- 	The U.S. Office of Personnel Management is authorized to issue regulations on allowable and unallowable political activity under the Hatch Act, as amended. The OSC is authorized to issue advisory opinions to anyone seeking advice about political activities permitted and not permitted under the Hatch Act. Employees can request such advice orally or in writing, and receive an oral or written opinion, as appropriate, from the OSC. Slide 93 highlights these sources of more information. Slide 94 lists the penalties provided in title 5 for violations of the Hatch Act by federal employees.

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## Slide 74

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## Slides 95-98:	OTHER OSC JURISDICTION 			(UNIFORMED SERVICES EMPLOYMENT 		AND REEMPLOYMENT)

- 	The OSC exercises jurisdiction outside of title 5 in connection with certain employment-related claims of veterans and reservists. The OSC’s role was defined in the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 (codified in title 38 of the U.S. Code). The USERRA expanded protections against the denial of employment or reemployment rights of veterans and reservists because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services. Slides 95-96 outline federal responsibilities under the USERRA.
- 	Complaints by veterans or reservists under the USERRA must first be filed with the U.S. Department of Labor (DOL). The OSC is only authorized to pursue a claim on a USERRA complainant’s behalf if the Labor Department is unable to resolve the matter. Slides 97-98 summarize the DOL and OSC roles.

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## Slide 76

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## Slide 77

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## Slide 99:	OSC WEB SITE (HTTP://WWW.OSC.GOV)

- 	This slide reproduces the first “page” of the OSC’s Web site, which was substantially expanded in 1999. Additional information can be found at the Web site on many of the topics covered in this guide. Other features include Hatch Act advisory opinions on a variety of recurring topics, copies of OSC press releases, and full texts of most OSC forms and publications. The Web site is updated on a regular basis. Planned additions to the Web site include copies of testimony and speeches by the Special Counsel, and legal briefs filed by the OSC on significant issues.

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## Slide 100:	OSC PHONE / E-MAIL CONTACTS

**Slide 101:****	****OSC MAIL CONTACTS**
- 	These slides provide current contact information for the OSC. Slide 100 includes phone numbers to use in connection with prohibited personnel practice, Hatch Act, and other complaints; requests for Hatch Act information and opinions; and whistleblower disclosures. The same slide also provides the e-mail address assigned for use by Hatch Act advisory opinion requesters.

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## Slide 102:	OSC FORMS

**Slide 103:****	****OSC PUBLICATIONS (GENERAL)**
**Slide 104:****	****OSC PUBLICATIONS (HATCH ACT)**
**Slide 105:****	****OSC POSTERS**
**Slide 106:****	****MSPB WEB SITE / PUBLICATIONS**
- 	Both the OSC and the MSPB — the agencies primarily responsible for implementation of the legal provisions in

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## chapters 12 and 23 on employee rights and remedies — have published forms, brochures, and posters describing their activities in more detail. Slide 102 lists current forms used by the OSC in connection with the handling of prohibited personnel practice complaints and whistleblower disclosures; slides 103-106 list current OSC and MSPB publications. Most OSC forms and brochures can be found at its Web site (depicted in slide 99). Further information about MSPB publications is available at that agency’s Web site.

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## Slide 82

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## Slide 83

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