The Merit System Principles:

Guiding the Fair and Effective Management 

of the Federal Workforce

1 Select employees on the basis of ability, through fair and open 

competition, to attain a representative workforce.

2 Treat employees and applicants fairly and equitably, with proper regard 

for their privacy and constitutional rights.

3 Provide equal pay for work of equal value and recognize excellence in 

performance.

4 Maintain high standards of conduct and concern for the public interest.

5 Use the Federal workforce efficiently and effectively.

6 Retain employees on the basis of performance and address inadequate 

performance fairly and decisively.

7 Train and educate employees to improve individual and organizational 

performance.

8 Protect employees against favoritism, political coercion and arbitrary 

action and prohibit abuse of authority.

9 Protect employees against reprisal for whistleblowing

A Report to the President and the Congress of the United States

by the U.S. Merit Systems Protection Board 

September 2016

U.S. Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419-0001

September 26, 2016

The President

President of the Senate

Speaker of the House of Representatives

Dear Sirs:

In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit this 

U.S. Merit Systems Protection Board (MSPB) report, The Merit System Principles: Guiding the Fair 

and Effective Management of the Federal Workforce. With the Civil Service Reform Act of 1978, 

Congress codified the Merit System Principles (MSPs) and the Prohibited Personnel Practices 

(PPPs). Together, the MSPs and PPPs guide agency leaders in managing the Federal workforce 

and inform Federal officials and employees of their responsibilities and rights.

Our research shows that Federal employees believe their agencies have varying success—and 

substantial room for improvement—in achieving the vision of the MSPs. Notably, surveys 

revealed a belief among both Chief Human Capital Officers and human resources staff that 

employees at all levels lack knowledge about how to fully adhere to the MSPs and avoid PPPs.

MSPB recommends that agencies take steps to educate employees on the MSPs and PPPs. 

Specifically, agencies should ensure that all employees receive training that is timely, tailored 

to their level of responsibility, provided by experts, and delivered effectively. To that end, 

this report includes a resource guide that explains each MSP and summarizes findings and 

recommendations from recent MSPB reports. 

Because the MSPs are the foundation for an effective, merit-based civil service, it is essential 

that Federal agencies understand and fully support them. I believe that you will find this report 

useful as you consider how to sustain and strengthen the Federal civil service.

Respectfully,

Susan Tsui Grundmann

Enclosure

THE CHAIRMAN

The Merit System Principles:

Guiding the Fair and Effective

Management of the Federal Workforce

A Report to the President and

the Congress of the United States

by the U.S. Merit Systems Protection Board

U.S. Merit Systems Protection Board

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

Office of Policy and Evaluation

Director

James M. Read

Deputy Director

James J. Tsugawa

Project Manager

Cynthia H. Ferentinos, Ph.D.

Contributing Offices

Office of Appeals Counsel

Office of Clerk of the Board

Office of Regional Operations

Table of Conten

The Merit System Principles ......................................................................................................................i

The Prohibited Personnel Practices........................................................................................................iii

Executive Summary ................................................................................................................................ vii

Recommendations................................................................................................................................ ix

Introduction.................................................................................................................................................1

Purpose...................................................................................................................................................1

Method ...................................................................................................................................................1

Maintaining the Merit System Principles ................................................................................................3

Background ............................................................................................................................................3

Roles of Federal Agencies Responsible for Supporting the MSPs........................................................4

Frequently Alleged Violations................................................................................................................9

Federal Employee Perceptions of Adherence to Merit System Principles...........................................10

Educating Employees Regarding the Merit System Principles..........................................................13

Current Levels of Employee Awareness of the MSPs and PPPs.........................................................13

Agency-Specific Training.....................................................................................................................14

Overview of the Merit System Principles ...............................................................................................25

MSP 1: Recruitment, Selection and Advancement..............................................................................25

MSP 2: Equity ......................................................................................................................................33

MSP 3: Compensation..........................................................................................................................38

MSP 4: Conduct................................................................................................................................... 41

MSP 5: Utilization................................................................................................................................46

MSP 6: Retention .................................................................................................................................50

MSP 7: Employee Training and Development....................................................................................55

MSP 8: Neutrality.................................................................................................................................58

MSP 9: Public Interest..........................................................................................................................63

Conclusions and Recommendations ......................................................................................................67

Appendix A. The Merit System Principles–5 U.S.C. § 2301(b)............................................................71

Appendix B. The Prohibited Personnel Practices–5 U.S.C. § 2302(b)...............................................73

Appendix C. Method for the MSP Education Agency Questionnaire ...............................................77

Appendix D. Relationship between the MSPs and the PPPs..............................................................83

Appendix E. MSPB Reports by Merit System Principle......................................................................87

Appendix F. Basic Obligations of Public Service .................................................................................93

A Report by the U.S. Merit Systems Protecti

The Merit System Prin

Federal personnel management should be implemented consistent with the following Merit System 

Principles: 

(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a 

work force from all segments of society, and selection and advancement should be determined solely on the 

basis of relative ability, knowledge and skills, after fair and open competition which assures that all receive 

equal opportunity.

(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects 

of personnel management without regard to political affiliation, race, color, religion, national origin, sex, 

marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional 

rights.

(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national 

and local rates paid by employers in the private sector, and appropriate incentives and recognition should be 

provided for excellence in performance.

(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.

(5) The Federal work force should be used efficiently and effectively.

(6) Employees should be retained on the basis of adequacy of their performance, inadequate performance 

should be corrected, and employees should be separated who cannot or will not improve their performance 

to meet required standards.

(7) Employees should be provided effective education and training in cases in which such education and 

training would result in better organizational and individual performance.

(8) Employees should be—

(A) protected against arbitrary action, personal favoritism, or coercion for partisan political 

purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or 

affecting the result of an election or a nomination for election.

(9) Employees should be protected against reprisal for the lawful disclosure of information which the 

employees reasonably believe evidences—

(A) a violation of any law, rule, or regulation, or 

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific 

danger to public health or safety.
ii The MSPs: Guiding the Fair and Effective Management of the Fede

The Merit System Prin
A Report by the U.S. Merit Systems Protection

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority— 

(1) discriminate for or against any employee or applicant for employment— 

(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the 

Civil Rights Act of 1964 (42 U.S.C. § 2000e–16); 

(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in 

Employment Act of 1967 (29 U.S.C. §§ 631, 633a); 

(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 

(29 U.S.C. § 206 (d)); 

(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation 

Act of 1973 (29 U.S.C. § 791); or 

(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or 

regulation; 

(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who 

requests or is under consideration for any personnel action unless such recommendation or statement is 

based on the personal knowledge or records of the person furnishing it and consists of— 

(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such 

individual; or 

(B) an evaluation of the character, loyalty, or suitability of such individual; 

(3) coerce the political activity of any person (including the providing of any political contribution or 

service), or take any action against any employee or applicant for employment as a reprisal for the refusal of 

any person to engage in such political activity; 

(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment; 

(5) influence any person to withdraw from competition for any position for the purpose of improving or 

injuring the prospects of any other person for employment; 

The Prohibite

Personnel Practi
iv The MSPs: Guiding the Fair and Effective Management of the Fede

The Prohibited Personnel Pract

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant 

for employment (including defining the scope or manner of competition or the requirements for any 

position) for the purpose of improving or injuring the prospects of any particular person for employment; 

(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or 

advancement, in or to a civilian position any individual who is a relative (as defined in section 3110 (a)(3) of 

this title) of such employee if such position is in the agency in which such employee is serving as a public 

official (as defined in section 3110 (a)(2) of this title) or over which such employee exercises jurisdiction or 

control as such an official; 

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or 

applicant for employment because of— 

(A) any disclosure of information by an employee or applicant which the employee or applicant 

reasonably believes evidences— 

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and 

specific danger to public health or safety, if such disclosure is not specifically prohibited by law 

and if such information is not specifically required by Executive order to be kept secret in the 

interest of national defense or the conduct of foreign affairs; or 

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another 

employee designated by the head of the agency to receive such disclosures, of information which the 

employee or applicant reasonably believes evidences— 

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and 

specific danger to public health or safety; 

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or 

applicant for employment because of— 

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation; 

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to 

in subparagraph (A); 

(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special 

Counsel, in accordance with applicable provisions of law; or 

(D) for refusing to obey an order that would require the individual to violate a law; 
A Report by the U.S. Merit Systems Protecti

The Prohibited Personnel

(10) discriminate for or against any employee or applicant for employment on the basis of conduct which 

does not adversely affect the performance of the employee or applicant or the performance of others; except 

that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or 

fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District 

of Columbia, or of the United States; 

(11) 

(A) knowingly take, recommend, or approve any personnel action if the taking of such action would 

violate a veterans’ preference requirement; or 

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such 

action would violate a veterans’ preference requirement; or 

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates 

any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in 

section 2301 of this title; or

(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement 

does not contain the following statement: “These provisions are consistent with and do not supersede, 

conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or 

Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting 

to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of 

funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other 

whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created 

by controlling Executive orders and statutory provisions are incorporated into this agreement and are 

controlling.”
vi The MSPs: Guiding the Fair and Effective Management of the Fede

The Prohibited Personnel Pract
A Report by the U.S. Merit Systems Protection

The Civil Service Reform Act of 1978 (CSRA) established a concise set of expectations for the fair, effective 

and efficient management of the Federal workforce. Known as the Merit System Principles (MSPs), and 

supported by the complementary Prohibited Personnel Practices (PPPs), these guidelines specify actions that 

should (or should not) be taken to produce the desired outcomes of treating employees and applicants fairly 

in all aspects of their careers, protecting the rights of employees, and promoting the effective and efficient 

use of Federal resources. The CSRA established several agencies with specific responsibility for protecting 

MSPs or preventing PPPs, including the U.S. Merit Systems Protection Board (MSPB), which initially 

included the U.S. Office of Special Counsel (OSC), and the U.S. Office of Personnel Management (OPM). 

However, the CSRA also provides that personnel authority would be exercised by individual agencies, rather 

than any central agency. Therefore, the primary responsibility for avoiding PPPs—and attaining the ideals 

described in the MSPs—lies with the employing agencies.

The mission of the MSPB is to protect the MSPs and promote an effective workforce free of PPPs. This 

mission is achieved through dual functions: adjudication of cases and studies of workforce management 

practices. This report combines expertise from both the adjudicatory and studies functions to achieve 

the following purposes: (1) assess how well Federal employees believe their agencies adhere to the MSPs; 

(2) evaluate current agency training practices regarding the MSPs and PPPs; (3) help readers better 

understand the meaning and intent of each MSP, by providing resources where they can learn more. To 

achieve these goals, we analyzed data from surveys, agency questionnaires, and interviews and summarized 

research from cases and studies that are related to each MSP.

Our research finds a disparity between the widespread professed knowledge of the MSPs by Federal 

employees and the perceived implementation of those principles within the Federal Government. 

Observations by members of the human resources management (HRM) community suggest that this may 

be due, at least in part, to variations in the quality and quantity of training on the MSPs (and avoidance of 

PPPs) that is provided within agencies.

For example, results from MSPB surveys indicate that most nonsupervisory employees (74 percent) 

and supervisors (89 percent) claim familiarity with the MSPs.1 However, Chief Human Capital Officers 

(CHCOs) and HRM staff were somewhat less likely to view employees and supervisors as adequately 

knowledgeable of the MSPs.2 Given their organizational role as objective advisors regarding workforce 

management decisions, HRM employees may offer a more accurate perspective to assess the familiarity of 

employees and supervisors with practices that are consistent with the MSPs. The existence of a discrepancy 

between the self-ratings of employees and supervisors and the evaluations provided by HRM staff suggests 

a need for improving education regarding MSPs and PPPs since it is critical for all Federal employees to 

understand the rights and responsibilities inherent in the merit systems.

1

 U.S. Merit Systems Protection Board, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, 

December 2013, p. 34.

2

 U.S. Merit Systems Protection Board, 2014 Merit System Principles (MSP) Education Agency Questionnaire, Question 9 a–d.

Executive S
viii The MSPs: Guiding the Fair and Effective Management of the Fede

Executive Sum

We assessed the current level of agency training on the MSPs and PPPs through a 2011 survey of HRM 

staff and an agency questionnaire that was distributed to CHCOs in 2014. Their responses revealed a wide 

range in the information provided to employees at various levels. Less than half of managers and supervisors 

were thought to receive extensive training on the MSPs and PPPs, while slightly under 15 percent received 

little or no training on the MSPs or PPPs.3 A disappointingly large number of HRM staff also responded 

that they had received little or no training on the MSPs (17 percent) or PPPs (12 percent).4

Therefore, some agencies are currently failing to provide employees with the training that they need to 

successfully fulfill their responsibilities to uphold the merit system principles. Agencies should ensure that 

all employees (though particularly supervisors, managers and executives, including political appointees) 

understand how the MSPs should impact all workforce management decisions. Agencies can accomplish 

this by providing employees with appropriate training at critical junctures in their careers. At a minimum, 

employees should receive training upon joining the organization, whether at the entry level or as a 

high-ranking executive. Employees should also receive more detailed training that is tailored to their 

responsibilities each time they move into a new role with broader decision-making authority, such as a 

supervisor or manager. Further, in these critical roles, one-time training is insufficient. Refresher training 

should be provided at regular intervals to ensure supervisors remain up-to-date regarding the application of 

the MSPs, as well as understand that their leadership views this expertise as a priority. Given that agencies 

are legally bound to provide supervisors with refresher training on a number of topics related to workforce 

management at a minimum of every three years, this represents an opportunity for agencies to incorporate 

the MSPs into this training, thereby meeting the existing requirement, while enhancing the organization’s 

ability to function effectively within the Federal merit systems.

In terms of outcomes, many employees lack confidence that organizations successfully achieve the ideals 

espoused in the MSPs.5 In particular, employees remain skeptical that managers effectively and efficiently 

manage the workforce, such as by selecting and retaining the best qualified (rather than those with whom 

they have personal relationships) and by appropriately dealing with employees whose performance is 

lacking. These employee perceptions may be inaccurate due to other requirements, such as the test security 

requirements which may obscure the assessment criteria, as well as the mandatory confidentiality of 

disciplinary actions, which may prevent other employees from knowing which steps the supervisor has 

taken. However, educating employees about these requirements may help them to be better informed about 

what information to which they may or may not be privy.

When employees believe that they are knowledgeable about the requirements of the MSPs and the PPPs and 

yet believe that supervisors do not adhere to those requirements, there are several possible explanations. First 

of all, this discrepancy may suggest a need for additional education—of employees (including supervisors) 

as it may indicate an inadequate understanding of the MSPs and PPPs. The MSP education process must 

go beyond superficial knowledge of the MSPs to provide an in-depth understanding of their meaning and 

intent to improve the application of these principles within the complexities of their organizations. 

3

 U.S. Merit Systems Protection Board, 2011 Fair and Open Competition Survey, Question 15 a–b.

4 Id., Question 16 a–b.

5

 U.S. Merit Systems Protection Board, Managing Pu)blic Employees in the Public Interest: Employee Perspectives on Merit Principles in Federal Workplaces, 

January 2013, pp. 10–11.
A Report by the U.S. Merit Systems Protectio

Executive 

Additionally, employees and particularly supervisors would benefit from gaining a greater understanding 

of the expectations and implementation of the MSPs. In some organizations, this may include paying more 

attention to holding employees (at all levels) accountable for adhering to the MSPs. To facilitate this goal, 

agency leaders need to hold their employees—as well as themselves—responsible for embodying the full 

range of the MSPs.

This report is designed to provide information on the MSPs and related practices by summarizing the 

meaning and intent of each MSP. By referencing illustrative cases of what not to do, these explanations 

go beyond the content of the MSPs to provide additional context to aid Federal supervisors (and other 

employees) in making merit-based decisions. Furthermore, we summarize findings and recommendations 

from related MSPB research and point readers to additional references for more details.

Recommendations

Promote merit-based management of the Federal workforce through education and action.

Management of the Federal workforce should be guided by the MSPs. However, the realities of what this 

looks like can vary depending on the circumstances. The MSPs require examining individual circumstances 

and exercising judgment regarding what could and should be done to support the merit systems. HRM 

staff and other sources can provide advice on a case-by-case basis. However, a more concerted approach to 

educate different components of the workforce should complement these individual consultations.

The mandatory training required for new supervisors (within one year of their initial appointment and 

refresher training at least every three years)6 should include comprehensive training on the MSPs and PPPs. 

Topics currently required by the mandatory refresher training include components of the MSPs, such as 

managing poor performers and providing training and developmental opportunities. Although these 

represent essential areas of supervisory responsibility, agencies should think more broadly and include the 

broader range of management practices covered by the MSPs and PPPs.

Training on the MSPs and PPPs should also be tailored for political appointees who may have supervisory 

and managerial experience, but lack familiarity with the requirements of the Federal merit systems. These 

executives need to be introduced to the concepts inherent in the Federal merit systems because these may 

differ in some fundamental ways from the management practices to which they are accustomed.

In addition to training supervisors, managers, and executives, agencies also need to ensure that all employees 

possess a basic understanding of the MSPs and PPPs. This knowledge can serve to decrease the potential 

for misunderstandings of how employees should be managed within the Federal merit systems.

However, while increased education on the MSPs for executives, managers, supervisors and other employees 

is critical, it is not sufficient. Supervisors at all levels must also be held accountable for their decisions, to 

ensure that they are supporting the intent of the MSPs.

6

 As required by the Federal Workforce Flexibility Act of 2004 (P.L. 108–411) which was incorporated into 5 C.F.R. § 412.202.
x The MSPs: Guiding the Fair and Effective Management of the Fede

Executive Sum

Key Recommendations for Agencies

To ensure a merit-based culture that promotes the MSPs and protects against PPPs, it is essential that 

agencies:

▪ Select supervisors who have demonstrated their commitment to upholding the high 

expectations of the Federal merit systems.

▪ Provide in-depth training regarding the content and applications of the MSPs and PPPs (as well 

as the potential costs for not adhering to these expectations) to all supervisors at the time of 

hire and on a regularly recurring basis.

▪ Ensure that supervisors receive the required training at the time of selection and as needed in 

subsequent years (at a minimum frequency of every three years as legally mandated). Although 

the requirements do not specifically mention the MSPs and PPPs, to adequately perform their 

duties, this training should cover not only the content of the MSPs and PPPs, but also how they 

impact their workforce management decisions.

▪ Ensure that political appointees are well-informed about the practical implications of the MSPs 

and PPPs and understand the criticality of demonstrating their full support of the Federal merit 

systems given their influential leadership role.

▪ Hold all supervisors, managers and executives accountable for adhering to the MSPs and 

avoiding PPPs.

▪ Ensure HRM employees have the expertise to correctly advise regarding the impact of the 

MSPs on all workforce management decisions.

▪ Educate employees regarding their rights and responsibilities according to the MSPs and PPPs 

and ensure that they are aware of the procedures for redress in the event they feel their rights 

have been violated.

▪ Understand the dual responsibility to employees and the public to manage the Federal 

workforce fairly and effectively.

Key Recommendations for Supervisors

Supervisors directly manage the Federal workforce, therefore, each supervisor must:

▪ Fully appreciate the implications of each MSP and PPP to understand how their actions impact 

their agency’s embodiment of the merit systems.

▪ Ask for assistance from HRM staff or others with relevant expertise prior to taking an action 

that could be inconsistent with the MSPs or constitute a PPP.

▪ Work with HRM to understand the options available to achieve the desired merit-based goals, 

and not request that HRM take actions that violate MSPs or result in PPPs.
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Executive 

Key Recommendations for Human Resources Management Staff

HRM employees play a critical role in helping agencies and managers promote the MSPs and avoid the 

commission of PPPs. To that end, they should:

▪ Provide expert advice on merit-based workforce management, including best practices for 

recruiting, hiring (including promoting), evaluating performance, determining awards, 

distributing work assignments and training and development opportunities, and administering 

discipline.

▪ Take appropriate action upon observing a violation of a MSP or the commission of a 

PPP.

▪ HRM supervisors, managers and executives need to support HRM staff when they raise 

concerns regarding MSPs or PPPs. 

Key Recommendations for Employees

Employees should take the following steps to manage their performance and careers:

▪ Learn more about the MSPs and the PPPs.

▪ Work with supervisors and colleagues to support the MSPs.

▪ When it appears that a MSP has been violated or a PPP committed, consider the options, such 

as discussing the act with HRM or the Equal Employment Opportunity (EEO) office or by 

filing a grievance, appeal or complaint.

The MSPs should be supported (and the PPPs avoided) through several means: (1) proactive education of 

all employees; (2) holding employees accountable through internal agency mechanisms, and (3) enforcing 

accountability through external agencies (when necessary). These processes provide multiple layers of 

support for sustaining the Federal merit systems as envisioned by the architects of the Civil Service Reform 

Act of 1978.
xii The MSPs: Guiding the Fair and Effective Management of the Fede

Executive Sum
A Report by the U.S. Merit Systems Protecti

Introduc

Purpose

Given MSPB’s role as a guardian of the Federal merit systems, we have created this report to assist with 

educating Federal employees regarding the meaning and intent of the Merit System Principles (MSPs)7 and 

why they are important. This report will serve the following purposes: 

1. To assess how well Federal employees believe they are protected by the MSPs;

2. To evaluate and summarize current agency training practices regarding the MSPs and the 

Prohibited Personnel Practices (PPPs),8 and

3. To summarize information regarding the MSPs to serve as a reference guide for supervisors 

and employees.9

Method

To prepare this report, we examined:

▪ A review of the relevant legislative history (e.g., the Civil Service Reform Act of 1978 (CSRA)), 

which codified the MSPs and the PPPs, and more recent efforts to improve supervisory and 

managerial training.

▪ A review of selected cases involving alleged violations of the MSPs and related PPPs.

▪ Results from the 2014 Merit System Principles Education Agency Questionnaire 

(“MSP Education Agency Questionnaire”), a questionnaire directed to agency Chief Human 

Capital Officers (CHCOs) regarding MSP and PPP training provided to employees.10

▪ Results from the Merit Principles Survey (MPS)11 which MSPB periodically administers to 

Federal Government employees to assess their perceptions of the Federal merit systems, 

monitor trends over time, as well as to provide insights into current topics of research. 

Specifically, on the 2010 Merit Principles Survey, the MSPs were broken out into discrete 

questions to obtain employee perceptions of different aspects of each MSP. This provides a 

more detailed perspective on how well Federal employees believe their agencies uphold the 

various aspects of the MSPs. 

7

 See Appendix A.

8

 See Appendix B.

9

 The full reports of cited MSPB studies are available at www.mspb.gov/studies/viewallstudies.htm..

10 Appendix C contains an overview of the questionnaire method and a copy of the questionnaire. 

11 The results from this survey were most recently discussed in the 2013 MSPB report, Managing Public Employees in the Public Interest: Employee 

Perspectives on Merit Principles in Federal Workplaces.
2 The MSPs: Guiding the Fair and Effective Management of the Fede

Introduct

▪ Results from the 2011 Federal Merit Systems Survey,12 a Governmentwide survey administered 

by MSPB which included questions regarding when, how and why Federal employees perceive 

that some applicants or employees receive an unfair advantage, their opinions regarding their 

supervisor’s effectiveness, and what supervisors should do to improve their adherence to the 

MSPs.

▪ Results from the 2011 Fair and Open Competition Survey,13 administered to HRM employees 

because of their role in advising managers regarding personnel decisions.

▪ Results from interviews with the Office of Special Counsel (OSC), the Office of Personnel 

Management (OPM), and the Partnership for Public Service (PPS).

Taken together, these sources provide insights into what the CSRA intended in codifying the MSPs and 

the degree to which employees believe Federal agencies are adhering to these principles. Examples of cases 

relating to each MSP illustrate how these principles may have been overlooked or misinterpreted. Therefore, 

we also propose remedies, such as to the deficits in training that Federal employees have received, and offer 

additional information and resources regarding how Federal agencies can better operate within the merit 

systems.

12 For an overview of the Federal Merit Systems Survey method, the text of the email invitation accompanying the Federal Merit Systems 

Survey, and a copy of the Federal Merit Systems Survey, please see the 2013 MSPB report, Preserving the Integrity of the Federal Merit Systems: 

Understanding and Addressing Perceptions of Favoritism.

13 For an overview of the Fair and Open Competition Survey, please see the 2014 MSPB report, The Impact of Recruitment Strategy on Fair and 

Open Competition for Federal Jobs.
What are the Merit System Principles?

The Merit System Principles are nine basic 

standards governing the management of the 

executive branch workforce. They operate 

as aspirational goals for how the Federal 

workforce should be managed since they are 

not “self-actuating”—which means that they 

are not sufficient to serve as the basis for an 

enforceable action. The principles are part of 

the Civil Service Reform Act of 1978, and can 

be found at 5 U.S.C. § 2301(b).

What are the Prohibited Personnel 

Practices?

The Prohibited Personnel Practices are thirteen 

actions that are forbidden for employees 

who have the authority to make personnel 

decisions. Unlike the Merit System Principles, 

Congress made the prohibition of these 

personnel practices enforceable so employees 

could (1) be disciplined for committing a PPP 

and (2) obtain corrective action if a PPP was 

committed against them. The Civil Service 

Reform Act of 1978 established a list of eleven 

PPPs, which has been expanded to thirteen, 

and these can be found at 5 U.S.C. § 2302(b).

A Report by the U.S. Merit Systems Protecti

Background

The Civil Service Reform Act of 1978 (CSRA)

The CSRA sought to “promote a more efficient civil service while preserving the merit principle in Federal 

employment.”14This reflected a movement to ensure the Federal Government serves the public efficiently 

and effectively, while also preserving employees’ rights to be treated fairly. Although the Pendleton Act of 

1883 had been enacted to end the practice of awarding Federal jobs on the basis of political affiliation or 

personal relationships (known as the “spoils system”), concerns were increasing in the late 1970’s that the 

merit system was being undermined. In part, this was attributed to frustration expressed by some regarding 

the plethora of personnel rules and regulations that were intended to preserve merit, but were seen as 

impeding supervisors’ rights to appropriately manage their staff, including the removal of poor performers.

To address these concerns, the CSRA and the related Reorganization Plans accomplished a number of goals. 

To clarify expectations for the management of the Federal workforce, the CSRA established as law the Merit 

System Principles and the Prohibited Personnel Practices.

14 S. Rep. 95-969, at 2, reprinted in U.S.C.C.A.N. 2723, 2724.

Maintaining t

Merit System Prin
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As mentioned above, the MSPs are not self-actuating, which means they cannot serve as the basis for a 

corrective action.15 However, violations of MSPs may also involve the commission of PPPs. As a result, 

there exists a close correspondence between the MSPs and the PPPs as the PPPs clearly define actions that 

would undermine a merit system.16 Together, these MSPs and PPPs establish the vision for how the Federal 

workforce should be fairly and effectively managed and how Federal employees should view their rights 

and responsibilities. The general themes across the MSPs and PPPs relate to treating employees fairly in all 

aspects of their employment; protecting employees from harm, such as when they exercise legally protected 

rights; as well as encouraging the efficiency of the Federal workforce.17 Although the MSPs and PPPs clearly 

stipulate certain behaviors that should not be done, the MSPs also provide aspirational guidance for the ideal 

functioning of the Federal workforce.

The primary responsibility for upholding the MSPs and avoiding PPPs rests in the day to day management 

of the workforce within each agency. Agency leaders serve as role models for demonstrating a commitment 

to the values distilled into the MSPs and PPPs.

As reinforced by the MSPs and PPPs, great latitude exists within the range of flexibility granted to 

supervisors and managers to enable them to decide how to best manage their employees as long as their 

actions are driven by merit. Perhaps one way to envision the complementary roles of the MSPs and 

PPPs is to think of them as metaphorical “guard rails” for the management of the Federal workforce. 

Given the evolution in regulations governing workforce management policies and practices, those with 

decision-making authority in agencies should consider (and as needed, seek counsel from HRM experts 

regarding) the multitude of options for recruitment, hiring, providing training and development, managing 

performance, providing recognition and awards, and administering disciplinary action. While keeping 

in mind their organizational goals to facilitate efficiency and effectiveness, agencies also maintain a 

responsibility to treat employees fairly.

Roles of Federal Agencies Responsible for Supporting the MSPs

While Federal agencies possess significant authority over managing within the MSPs, Congress also 

intended for Federal employees to be able to have a fair hearing if they felt that a PPP had been committed 

against them. Although agencies typically offer mechanisms for resolving these complaints internally, 

the authors of the CSRA recognized the need to continue to provide an external, more objective means 

for investigating and adjudicating employees’ allegations of unfair treatment. Therefore, the CSRA 

also reorganized the appeal functions of the Civil Service Commission into several newly established 

organizations. The U.S. Merit Systems Protection Board (MSPB) was created to safeguard the “effective 

operation of the merit principles in practice.”18 MSPB assumed the employee appeals function of the Civil 

15 Pollard v. Office of Personnel Management, 52 M.S.P.R. 566, 569–570 (1992).

16 Appendix D provides a fuller discussion of the relationship between the MSPs and PPPs.

17 A factor analysis of MPS 2010 results was discussed on p. 7 of the 2013 MSPB report, Managing Public Employees in the Public Interest: Employee 

Perspectives on Merit Principles in Federal Workplaces. The resulting factors were labeled “fairness,” “protection,” and “stewardship.”

18 S. Rep. 95-969, at 6, reprinted in U.S.C.C.A.N. 2723, 2728.
What is the U.S. Merit Systems Protection Board?

The Merit Systems Protection Board (MSPB) is an independent, quasi-judicial agency in the Executive 

branch that serves to protect the Merit System Principles (MSPs) and to promote an effective Federal 

workforce free of Prohibited Personnel Practices (PPPs). To support this mission, MSPB adjudicates 

appeals of covered actions and conducts studies to assess how fairly and effectively Federal agencies are 

managing their employees and to make recommendations for improvements.

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Maintaining the Merit System Pr

Service Commission19 and was given new responsibilities to perform merit systems studies20 and to review 

the significant actions of the U.S. Office of Personnel Management (OPM).

As part of the adjudicatory function, MSPB is empowered to hear and decide requests for corrective or 

disciplinary action when an agency is alleged to have committed a PPP.21 Specifically, MSPB assumed 

responsibility for hearing appeals of certain agency personnel actions (e.g., removals, suspensions of 

more than 14 days, reductions in grade or pay, and furloughs of 30 days or less) by Federal employees 

who are eligible to bring their cases to MSPB.22 MSPB also hears appeals of certain OPM actions, such 

as determinations in retirement cases, suitability determinations, and employment practices (e.g., the 

development and use of examinations, qualification standards, tests and other measurement instruments). 

After an administrative judge (AJ) issues an initial decision, this decision can typically be appealed to the 

Board23 through the petition for review process.

The CSRA requires OPM to hold “managers and human resources officials accountable for efficient and 

effective human resources management in support of agency missions in accordance with Merit System 

Principles.”24 In part, OPM addresses this responsibility through its Merit System Accountability and 

Compliance division, which evaluates Federal agency human resources programs to ensure that they provide 

“high quality and merit system-based services.”25

When dividing the responsibilities of the Civil Service Commission among new agencies, the CSRA 

originally created the Office of Special Counsel (OSC) as an office within the MSPB to investigate 

allegations of PPPs, prosecute violators of civil service rules and regulations, and enforce the Hatch Act.26 

19 The CSRA, which became effective January 11, 1979, replaced the Civil Service Commission with three new independent agencies: the 

Office of Personnel Management (OPM), which manages the Federal workforce; the Federal Labor Relations Authority (FLRA), which 

oversees Federal labor-management relations; and the MSPB.

20 These reports are provided to the President and the Congress and are available at www.mspb.gov/studies/viewallstudies.htm. 21 5 U.S.C. §§ 1214–1215.

22 For more details regarding MSPB’s appellate jurisdiction, see www.mspb.gov/About/jurisdiction.htm. 23 The Board is bi-partisan and composed of the Chairman, Vice Chairman and Member, who are appointed by the President and 

confirmed by the Senate to serve seven-year terms.

24 5 U.S.C. § 1103(c)(2)(F).

25 For more information, see www.opm.gov/about-us/our-people-organization/program-divisions/merit-system-accountability-andcompliance/.

26 The Hatch Act, 5 U.S.C. §§ 7321–7326, places restrictions on the political activities of Federal employees. For information on 

enforcement of the Hatch Act, see https://osc.gov/Pages/HatchAct.aspx.
6 The MSPs: Guiding the Fair and Effective Management of the Fede

Maintaining the Merit System P

However, the OSC became an independent agency in July 1989, with authority to prosecute cases before the 

MSPB and seek disciplinary and/or corrective action.

The U.S. Equal Employment Opportunity Commission (EEOC) may also become involved in cases where 

an employee alleges discrimination as part of a personnel action that is appealable to the MSPB (which is 

termed a “mixed case”). The employee may raise their concerns through the EEO process, and ultimately, 

the EEOC or the MSPB can hear these appeals, but the employee has the option to request that EEOC 

review the decision of the MSPB, if the employee is dissatisfied with the outcome. If the EEOC and the 

MSPB cannot agree, the case is referred to the Special Panel for final resolution.27

How Might a PPP or Violation of an MSP Be Redressed?

As mentioned earlier, after an employee has exhausted the internal agency complaint, appeal or grievance 

process and/or decided to turn to external sources for assistance, the process varies widely depending upon 

the nature of the allegation, who is making the allegation, and the conditions which may restrict the venue 

to which the employee may direct the claim. These factors determine which agency will investigate the 

complaint or hear the appeal. For example, MSPB’s jurisdiction generally applies only to certain personnel 

actions that were conducted by a covered agency (e.g., coverage excludes certain agencies, such as in 

the intelligence community) and against an eligible employee (e.g., a non-probationary employee in the 

competitive service). Other conditions, such as the presence of an agency grievance process, may also impact 

how claims will be handled.

Given the complexity of jurisdictional issues, Federal employees with potential appeals or complaints should 

promptly seek advice from the appropriate experts within or outside of their agencies or consult relevant 

agency websites. For example, information on MSPB’s jurisdiction is available at www.mspb.gov/About/

jurisdiction.htm. Additionally, Figure 1 below provides a simplified view of some issues to consider and 

possible outcomes for which agency would handle an appeal or complaint.

The following paragraphs expand upon the flow chart depicted in Figure 1 and present a general overview 

of the typical routing of employee claims regarding violations of the MSPs or commission of PPPs based 

on the unique circumstances of each case. For more specific advice tailored to personal circumstances, 

employees need to seek advice within their own agency or directly from the agencies identified in Figure 1.

27 5 U.S.C. § 7702.
Issues to Consider Outcome

1. Is a PPP 

suspected?

2. Discrimination on 

a protected basis?

(See Note A.)

3. MSPB-covered 

personnel action?

(See Note B.)

The Federal agency 

most likely to be 

involved:

Notes: For more information:

A. Protected bases include: political affiliation, race, color, 

religion, national origin, sex, marital status, age, disability,

genetic information, and sexual orientation.

B. MSPB-covered personnel actions include: removals, 

suspensions of more than 14 days, reductions in grade or 

pay, and furloughs of 30 days or less.

MSPB www.mspb.gov

(202) 653-7200

EEOC www.eeoc.gov

(202) 663-4900

OSC www.osc.gov

(202) 254-3600

EEOC

No EEOC

No

No

No

Yes

Yes

Yes

Yes

MSPB

No: e.g., a dispute over 

retirement benefits.

No: e.g., retaliation for

whistleblowing.

MSPB

No: e.g., nonselection for 

a promotion.

OSC

OSC

MSPB Unable to resolve through 

own agency or OPM

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Figure 1. Issues to Consider When Filing a Complaint or Appeal: An Employee Perspective
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Maintaining the Merit System P

When an employee believes that legally prohibited discrimination has occurred and it involves a personnel 

action under MSPB’s jurisdiction, the individual may either file with MSPB or elect to go through the EEO 

complaint process, which may ultimately lead to involvement by the EEOC.28 (Although OSC’s jurisdiction 

includes discrimination as covered by 5 U.S.C. § 2302(b)(1), OSC typically refers these complaints to 

the EEO process, with a few exceptions.)29 As mentioned earlier, “mixed cases” that involve personnel 

actions that are within MSPB’s jurisdiction may be appealed to the MSPB, but trigger different procedures 

in the event the employee wishes to appeal an unfavorable decision. An employee who believes that a 

discrimination-based PPP has occurred, but did not result in an MSPB-covered personnel action may 

contact the agency EEO office for further guidance. 

However, when an employee feels that a PPP has occurred that does not relate to illegal discrimination 

(such as retaliation for whistleblowing) or does relate to discrimination based on conduct as described in 

5 U.S.C. § 2302(b)(10), the employee may have several options, as described in 5 U.S.C. § 7121(g). For 

example, the employee may file through the MSPB appeal process (if the action was covered by MSPB 

jurisdiction), pursue a grievance through a negotiated grievance process (if applicable), or file a complaint 

with OSC (if the issue falls under their jurisdiction).30 As noted earlier, this discussion presents a highly 

simplified overview so the employee should keep in mind that additional review rights may be triggered 

depending on the circumstances and the initial election made by the employee.

If OSC believes corrective action is warranted, they will investigate and prosecute the case before the MSPB. 

It is important to note that OSC has the authority to pursue both corrective action (to right a wrong against 

an employee or applicant) and disciplinary action against the Federal official who committed the PPP.31

OSC also investigates allegations of wrongdoing (e.g., waste, fraud, and abuse of authority), the Hatch Act 

(restrictions on political activity), and violations of the Uniformed Services Employment and Reemployment 

Rights Act (USERRA). For more information regarding OSC’s investigative and prosecutorial roles, see 

OSC’s website at https://osc.gov/Pages/WhatWeDo.aspx.

Enforcing Accountability

When Federal employee complaints have been substantiated, agencies such as the MSPB and the EEOC 

have the authority to “make the employee whole.” That is, they can grant the employee what had been 

denied by the commission of the PPP. They can also grant monetary compensation to reimburse the 

employee for attorney’s fees or damages. In addition, these Federal agencies can take action against the 

person who committed the PPP, including penalties such as levying fines and recommending suspension or 

removal from Federal employment.

28 Federal employees who believe they have been discriminated against should contact an equal employment opportunity (EEO) counselor 

within their own agency within 45 days for initial guidance regarding their options. For an overview of the EEOC’s role in protecting 

Federal employees and applicants against discrimination and the process for filing an EEO complaint, see EEOC’s website at www.eeoc.

gov/federal/fed_employees/index.cfm. 

29 For more information, see https://osc.gov/Pages/PPP.aspx. OSC does investigate allegations of discrimination based on marital status or 

political affiliation which are not covered by the EEO process, as well as allegations of discrimination based on sexual orientation or gender 

identity, which are covered by the EEO process.

30 OSC’s complaint process for PPPs is discussed in detail at https://osc.gov/Pages/ppp-ourprocess.aspx.

31 For more information, see https://osc.gov/Pages/ppp-ourprocess.aspx.
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However, to avoid getting to the point where employees consider filing complaints with the appropriate 

entities, agencies should maintain vigilance over their work environments to reinforce that supervisors’ 

decisions should embody the spirit of the MSPs and refrain from any actions that might appear to be PPPs. 

Agency leaders should also communicate with all employees to reinforce a culture that adheres to the 

meaning and intent of the MSPs and provide the necessary information and training to ensure that everyone 

understands what is required within a merit-based system. Without this base level of knowledge, there exists 

a greater likelihood that employees will perceive challenges to the merit systems and that supervisors may 

also lack critical information to guide their actions. Adhering to the MSPs requires both the knowledge of 

these principles and willingness to hold everyone accountable for actions that are not in accord with the 

principles.

Frequently Alleged Violations

As seen in the brief descriptions above, MSPB, OSC, and EEOC serve complementary roles in processing 

Federal employee allegations that the MSPs have been violated and/or that PPPs have been committed. 

Although the annual volume of complaints is modest relative to the size of the Federal workforce, each 

complaint filed with OSC or EEOC (and some of the appeals filed with MSPB) represents an employee 

who believes that their agencies have failed to adhere to the MSPs and have committed a PPP (and 

importantly, that the employee is actually willing to risk negative consequences (i.e., retaliation) by filing 

a complaint or appeal). Each of these complaints can be expensive and time-consuming to resolve, and 

often have negative effects on others in the agency who observe these intra-agency battles. Although some 

of these complaints are dismissed as unfounded, others may indicate—regardless of the outcome—that 

agencies need to put more effort into (1) decreasing the actions that may be perceived as violating the 

MSPs or constituting PPPs, as well as (2) improving Federal employee understanding of what constitutes a 

violation of an MSP or the commission of a PPP.

In the most recent years for which data is available, each of these agencies received thousands of appeals, 

with the composition of the appeals reflecting the unique focus of each agency. During FY 2014, OSC 

received 3,371 new PPP complaints.32 Those relating to retaliation for reporting allegations of wrongdoing 

(i.e., “whistleblowing”) were the most prevalent among complaints that were resolved during FY 2014.33

At EEOC in FY 2014, 14,343 individuals filed 15,013 complaints alleging employment discrimination 

by the Federal Government.34 Reprisal and retaliation for engaging in protected activity (such as filing 

a discrimination complaint) was the most common basis, noted 7,018 times, followed by discrimination 

based on age (4,697) and physical disability (3,817).35 These alleged discriminatory acts were reported as 

occurring as harassment (due to a legally protected basis other than sex), impacting terms and conditions 

of employment, and non-selection, such as for a promotion. Similarly, in FY 2015, the MSPB decided 

5,418 employee appeals in the regional and field offices.36 Of this total number, 2,043 (38 percent) related 

32 U.S. Office of Special Counsel, Annual Report for the Fiscal Year 2014, p. 16.

33 Id.

34 U.S. Equal Employment Opportunity Commission, FY 2014 Annual Report on the Federal Work Force, Part 1, available at www.eeoc.gov/

federal/reports/fsp2014/upload/Final-FY-2014-Annual-Report-Part-I.pdf.

35 Id. at p. I-12.

36 U.S. Merit Systems Protection Board, Annual Report for FY 2015, February 29, 2015, p. 18. This number does not include furlough appeals.
10 The MSPs: Guiding the Fair and Effective Management of the Fede

Maintaining the Merit System P

to adverse action appeals.37 As part of their affirmative defense,38 appellants frequently cited discrimination 

by the agency based on their disability or reprisal for participating in the complaint, grievance, or appeal 

process.39

These results suggest that a gap still exists between the ideal envisioned by the authors of the Merit 

System Principles and the experiences of many Federal employees. By filing appeals or complaints with 

OSC or EEOC or MSPB, Federal employees are typically raising allegations of violations of the MSPs 

and/or the commission of PPPs. As evidenced by the large numbers of reprisal and retaliation claims, 

Federal employees often fear for the future of their careers once they file. To remedy this problem, Federal 

employees need to understand and have confidence in the integrity of the procedures established to provide 

fairness, protect employees who voice concerns, and ensure that the Federal workforce is effectively and 

efficiently managed.

Federal Employee Perceptions of Adherence to Merit System Principles

Given the number of appeals and complaints filed with MSPB, OSC and EEOC, it should come as no 

surprise that many Federal employees feel that their agencies are not yet fully achieving the ideals of the 

MSPs.40 Further, as shown in Figure 2, Federal agencies are perceived by employees to have been more 

successful at some Merit System Principles than others.41(Although there are nine MSPs, each of these MSPs 

can be further divided into components or practices that were addressed separately in the survey questions.) 

The results showed that most employees agreed that their organization effectively deals with issues such 

as appropriately avoiding and handling prohibited discrimination, maintaining high standards of conduct, 

paying employees fairly, and recruiting diverse pools of applicants. However, we note that fewer than 

70 percent of employees expressed confidence in their agencies upholding any MSP, even the MSP viewed 

as most frequently upheld by their agencies.

In contrast, employees tended to be skeptical about the organization’s ability (or willingness) to address 

poor performers, refrain from practicing favoritism or eliminate unnecessary functions to operate more 

efficiently, as fewer than 30 percent of employees felt their agencies were successful at fulfilling these MSPs. 

The reasons behind these deficits in trust are likely to vary widely: from a lack of resources, knowledge 

(on the part of the supervisor or by the employee who is unaware of information that must be kept 

confidential), or appropriate skills to an organizational culture that may not fully embrace the MSPs. 

37 Id. at p. 18.

38 Appellants before the MSPB may seek to prove that the agency action was taken for one of the reasons prohibited by 5 U.S.C. § 2302(b) 

which may lead to the agency’s decision not being sustained. For more information on affirmative defenses, see www.mspb.gov/ppp/ppp.

htm. 39 U.S. Merit Systems Protection Board, Law Manager information system (data retrieved on September 21, 2015).

40 For further information on Federal employee perceptions of the prevalence of PPPs, see the 2011 MSPB report, Prohibited Personnel Practices: 

Federal Employee Perceptions at www.mspb.gov/netsearch/viewdocs.aspx?docnumber=634680&version=636592&application=ACROBAT. 41 U.S. Merit Systems Protection Board, Managing Public Employees in the Public Interest: Employee Perspectives on Merit Principles in Federal Workplaces, 

January 2013. 
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Maintaining the Merit System Pr

Figure 2. Employee Agreement That Their Organization Adheres to the MSPs

Practice MSP Percentage Agreement

Prevents prohibited discrimination 2

Holds employees to high standards of conduct 4

Pays employees fairly 3

Recruits a diverse pool of applicants for job vacancies 1

Provides employees with necessary training 7

Puts the public interest first 4

Rectifies prohibited discrimination 2

Provides employees with necessary resources 5

Treats employees fairly 2

Provides employees with opportunities for growth 7

Rewards excellence 3

Recognizes excellence 3

Protects employees from political coercion 8

Focuses on what is most important 5

Holds fair and open competition for job vacancies 1

Protects employees against reprisal for exercising a right 9

Protects employees against reprisal for whistleblowing 9

Makes good use of employees' skills and talents 5

Protects employees against arbitrary action 8

Uses the workforce efficiently and effectively 5

Retains its best performers 6

Selects the best-qualified candidates when filling jobs 1

Eliminates unnecessary functions and positions 5

Does not engage in favoritism 8

Addresses poor performers effectively 6 24%

28%

29%

38%

41%

42%

43%

45%

45%

46%

48%

48%

50%

51%

51%

51%

52%

56%

60%

60%

60%

61%

63%

64%

66%
12 The MSPs: Guiding the Fair and Effective Management of the Fede

Maintaining the Merit System P

Regardless of the reasons underlying the failure of organizations to win employees’ confidence in their 

ability to support these MSPs, it is essential for all Federal employees—at all levels—to gain a better 

understanding of the MSPs and how to incorporate them into their organizations. Beyond understanding 

the meaning of each MSP, the greater challenge likely lies in applying them under varying circumstances. 

Ambiguous situations and subjective judgment calls may also result in decision makers and onlookers who 

have different perspectives on situations.

By delving into the history, meaning and intent of each of these MSPs, findings and recommendations from 

MSPB studies, and relevant legal decisions, this report strives to clarify for readers how each MSP applies 

to their work lives.42 Each MSP sets expectations for the optimal functioning of the Federal Government 

in service to the taxpaying public, while fairly and effectively managing the Federal workforce. These dual 

goals need not conflict—in fact, they should complement each other. While supervising within the Federal 

merit systems remains challenging, dedicated effort and a greater understanding of how the MSPs impact 

every aspect of a supervisor’s authority can greatly facilitate the achievement of the ideals envisioned by the 

Merit System Principles.

42 Full MSPB decisions and study reports are available at http://mspb.gov/decisions/searchdec.htm and www.mspb.gov/studies/

viewallstudies.htm.
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the Merit System Pri

Current Levels of Employee Awareness of the MSPs and PPPs

Federal employee perceptions that agencies fail to fully support all of the MSPs and that PPPs occur (albeit 

rarely) within the Federal workforce43 might suggest one of two likely causes: (1) employees (including front 

line employees, supervisors and higher level decision makers) lack knowledge regarding what should (and 

should not) be done and/or (2) the supervisors and other decision makers are aware of the MSPs and PPPs 

and choose not to adhere to these guidelines.

It is also important to note—although ignorance of the MSPs and PPPs does not excuse transgressions 

against the merit systems—intent (which implies knowledge of “right” vs. “wrong”) remains a key element 

for whether or not a prosecutable PPP has occurred. From a practical standpoint in terms of identifying 

remedies for violations of the merit systems, it is also essential to understand why an undesired behavior is 

occurring. Therefore, to try to discern the frequency of each scenario (intentional vs. unintentional based on 

lack of understanding), we conducted several surveys to obtain employee opinions regarding their perceived 

level of knowledge, as well as the level of knowledge of those with whom they interact.

In response to one set of survey questions, Federal employees report their “familiarity” with the MSPs and 

the PPPs. The majority of nonsupervisory employees indicated that they were familiar with the MSPs 

(74 percent) and PPPs (77 percent), with supervisors being somewhat more likely to report familiarity 

with the MSPs (89 percent) and the PPPs (92 percent).44 While these results represent fairly widespread 

confidence in knowledge of the MSPs and PPPs, given the criticality of these principles, all employees, 

particularly supervisors, should be thoroughly cognizant of the content and implications of all of the MSPs 

and PPPs.

To obtain guidance when making personnel decisions, agency executives, managers and supervisors often 

interact with the Chief Human Capital Officer (CHCO) or other Federal HRM employees—although these 

interactions may vary greatly in terms of trust and collaboration. Ideally, supervisors will view HRM as a 

competent business partner to help them make sound decisions. In other cases, supervisors may prefer to 

manage their workforce with as little outside input as possible. Either way, HRM employees may offer a 

valuable perspective on supervisors’ ability and willingness to support the MSPs and avoid PPPs.

Therefore, we asked Chief Human Capital Officers or their designees to assess how well employees 

at various levels understood the MSPs. In contrast with employees’ more positive evaluations of 

their awareness of the MSPs, only about half (52 percent) of the questionnaire respondents viewed 

nonsupervisory employees as having good to excellent knowledge of the MSPs.45 Their confidence in the 

43 As noted in the prior section regarding complaints received by the EEOC and the OSC. Results from the 2010 Merit Principles Survey 

are included in the 2011 MSPB report, Prohibited Personnel Practices: Employee Perceptions.

44 U.S. Merit Systems Protection Board, 2011 Federal Merit Systems Survey, Question 20 a–b. 

45 U.S. Merit Systems Protection Board, 2014 MSP Education Agency Questionnaire, Question 9 a–d.
14 The MSPs: Guiding the Fair and Effective Management of the Fede

Educating Employees Regarding the Merit 

knowledge of supervisors ranged from 72 percent for new supervisors to nearly 90 percent for experienced 

managers. By comparison, about two-thirds (63 percent) had confidence that political appointees possessed 

good to excellent knowledge of the MSPs.

A separate survey of HRM employees also revealed some concerns about the amount of training that 

managers and supervisors receive on the MSPs and PPPs. Less than 40 percent of HRM employees 

responded that managers and supervisors in their organizations had received training to a “very great 

extent” (12 percent) or to a “considerable extent” (27 percent) on the MSPs, with nearly 15 percent saying 

these officials received little or no training on the MSPs. Regarding the PPPs, just over 40 percent said 

supervisors and managers received training to a “very great extent” (14 percent) or to a “considerable extent” 

(29 percent), and approximately 14 percent said these officials had received little or no training on the PPPs.46

Given their critical role as advisors regarding workforce management decisions, it is also troubling that 

17 percent of HR employees indicated that they had personally received little or no training on the MSPs 

and 12 percent responded that they lacked training on the PPPs.47 Obviously, it would be difficult for HR to 

provide needed advice when they themselves lack the knowledge and resources regarding how to adhere to 

the MSPs and steer clear of PPPs.

Agency-Specific Training

In their responses to the 2014 MSP Education Agency Questionnaire, agency representatives also offered 

insights into how knowledgeable employees in their agency are regarding a variety of topics, including the 

MSPs and PPPs in general, as well as specific components of the MSPs. Further, the questionnaire requested 

that they estimate the level of familiarity with the MSPs by type of employee, to distinguish between 

employee, new supervisor, refresher training for experienced supervisors, and political appointees.

Supervisors

As shown in Figure 3, agency representatives responded that new supervisors (81 percent) and experienced 

supervisors (60 percent) are more likely than other employees to receive training on an overview of the 

MSPs.48 Results for the PPPs were nearly identical. Although these results suggest that the majority of 

supervisors receive an introduction to the MSPs and PPPs, they also indicate that there is substantial 

room for improvement. All new supervisors should be aware of these guidelines before being granted the 

authority to make decisions impacting others’ careers and the ability of the agency to function efficiently and 

effectively. However, 11 percent of respondents said that new supervisors received no training on the MSPs. 

Further, given that circumstances may evolve over time necessitating updated training and supervisors may 

benefit from reminders regarding how the MSPs and PPPs related to their actions, experienced supervisors 

should also be more frequently included in refresher training on the MSPs and PPPs. 

46 U.S. Merit Systems Protection Board, 2011 Fair and Open Competition Survey, Question 15 a–b.

47 Id., Question 16 a–b.

48 U.S. Merit Systems Protection Board, 2014 MSP Education Agency Questionnaire, Question 1 a–b.
0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

Employee New Supervisor Refresher for

Supervisor

Political

Appointee

Don't Know

No

Yes, some

Yes, all

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Figure 3. Provision of MSP Training, by Type of Employee

Political appointees

Agencies indicated that political appointees were less likely than career supervisors to receive training 

on the MSPs and PPPs as only 40 percent responded that political appointees received this training.49

Approximately, one of five of those who responded to the agency questionnaire said political appointees 

received no training on the MSPs/PPPs and an additional 20 percent did not know what training political 

appointees received regarding the MSPs or PPPs. This lack of training may partly explain the results of 

a 2010 MPS item, which compared political and career senior executives in terms of respecting the merit 

process when making hiring decisions. While 53 percent of respondents agreed that career senior executives 

respect the merit process when making hiring decisions, only 41 percent agreed that political appointee 

executives do so.50

Although the overall number of political appointees is small relative to the entire Federal workforce,51 these 

individuals tend to occupy extremely powerful and highly visible positions, and often have the authority to 

make decisions that broadly impact the agency and its workforce, and at times, to significantly change longstanding agency policies that have become customary to career Federal employees. Therefore, agencies need 

to ensure that political appointees are familiar with the requirements of the Federal merit systems so the 

likelihood of committing PPPs is reduced to the fullest extent possible. For example, because political

49 U.S. Merit Systems Protection Board, 2014 MSP Education Agency Questionnaire, Question 1 a–b.

50 U.S. Merit Systems Protection Board, 2010 Merit Principles Survey, Questions Lead 2f and 3f.

51 The Sourcebook of United States Executive Agencies, published by the Administrative Conference of the United States, estimates the percentage 

of Federal Government political appointees at less than 0.12 percent, based on a comparison of positions listed in the 2008 Plum Book to the 

total Federal civilian workforce in 2008.
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appointees may be experienced executives from the private sector, which is typically an at-will employment 

environment, it is crucial that they understand that the Federal sector has its own legal requirements and 

unique expectations for the management of the workforce, including the requirement to base workforce 

management decisions on merit rather than political, familial or other personal connections. They also need 

to shift strategies to focus on providing services to citizens, rather than generating profits.

This recommendation hearkens back to the 1989 Report of the National Commission on the Public Service, 

chaired by Paul A. Volcker. In that report, Leadership for America: Rebuilding the Public Service, the Commission 

recommended that all presidential appointees receive “adequate orientation” at the point in time between 

nomination and confirmation so the appointee would be fully versed on not only the agency-specific 

knowledge required by the leadership role, but also regarding “the ethical conduct expected of a public 

official” and “the positive role that career officers can play.”52 Achieving these goals was envisioned as 

leading to a more successful collaboration between political and career executives, and thus improving the 

management of the Federal workforce.

Employees

Finally, given that employees need to understand their rights and responsibilities, as well as expectations 

for the operation of the Federal merit systems, agencies should consider providing more training to all 

employees regarding the MSPs and PPPs. Although this training need not be as detailed as that provided to 

supervisors, employees would likely benefit from an introduction to the MSPs and PPPs, as well as guidance 

regarding where to find more information. Additionally, since supervisors are frequently selected from the 

pool of career employees and benefit from having long-term education on the MSPs and PPPs prior to 

assuming the supervisory role, MSP and PPP education for all employees can be viewed as an investment in 

the future supervisory corps.

Components of MSP Training

As discussed earlier, the MSPs encompass broad recommendations (e.g., manage employees efficiently and 

effectively), guidance regarding discrete aspects of workforce management (i.e., recruitment, selection, pay, 

training, retention), as well as proscriptions against arbitrary action, personal favoritism, political influence, 

and reprisal for exercising legal rights. Consequently, it is appropriate to make available to employees 

information at various levels of specificity. In global terms, employees may be informed about the general 

concepts of the MSPs and PPPs. The reasons for achieving broad goals may also be communicated with the 

support of the agency’s leaders. However, connecting these more general aspirations to specific behaviors is 

essential to helping employees understand what the MSPs mean in practical terms. 

To ascertain the breadth and depth of training provided to the various levels of employees, the MSPB 

requested that agency CHCO representatives identify which components of the MSPs were covered in 

training and to whom such training was provided.53 Responses are shown in Table 1. Percentages shown 

reflect the percent of the respondents who replied that all persons in the listed category were provided with 

training on the MSPs, PPPs, or MSP component.

52 The National Commission on the Public Service, Leadership for America: Rebuilding the Public Service, 1989, pp. 21–22.

53 U.S. Merit Systems Protection Board, 2014 MSP Education Agency Questionnaire, Question 1 a–m.
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Yes to all within each 

employee category Employee New Supervisor

Refresher

Supervisor

Political

Appointee Average

Merit System Principles 38% 81% 60% 40% 55%

Prohibited Personnel 

Practices 41% 82% 59% 40% 56%

Recruitment 14% 71% 52% 25% 41%

Hiring 18% 78% 60% 29% 46%

Preventing or 

Remedying 

Discrimination

69% 86% 74% 49% 70%

Setting Pay 10% 36% 25% 13% 21%

Awards and Recognition 38% 71% 52% 31% 48%

Maintaining Standards 

of Conduct 66% 88% 66% 52% 68%

Efficient and Effective 

Workforce Management 12% 51% 49% 31% 36%

Managing Poor 

Performers 8% 84% 66% 28% 47%

Training and 

Development 52% 80% 63% 37% 58%

Avoiding Arbitrary 

Action, Favoritism, 

Political Coercion

59% 75% 64% 53% 63%

Protecting Employees 

Against Reprisal 75% 85% 74% 53% 72%

Average 38% 74% 59% 37%

Table 1. Prevalence of Training Related to the MSPs by Type of Employee

As noted previously, new supervisors are the group that most frequently receives training on a wide range 

of specific topics that are related to the MSPs. As might be expected from the survey results (shown earlier 

in Figure 2) which reflect employees’ reports of their agencies’ success at adhering to various aspects of the 

MSPs, the questionnaire data reveals that new supervisors most frequently receive training on topics 

such as: maintaining standards of conduct and preventing discrimination. However, these results also 

suggest that most new supervisors receive training on protecting employees against reprisal and managing 

poor performers, which were not rated so highly by employees in terms of agency success at these aspects 

of the MSPs.
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Interestingly, very few responding agencies (only 8 percent) reported providing nonsupervisory employees 

with any training on the topic of managing poor performers. This may represent a missed opportunity for 

agencies to educate employees regarding what options supervisors have for improving performance 

(or removing employees who cannot or will not improve), as well as to inform employees of confidentiality 

policies which prohibit supervisors from making known the actions that they are taking in these cases. 

However, greater percentages of agencies reported providing employees with training on protecting 

employees against reprisal (75 percent) and preventing or remedying discrimination (69 percent). These 

numbers likely reflect the success of the requirements of the Notification and Federal Employee 

Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), which requires annual training for all 

employees on laws to prevent and remedy discrimination and reprisal for whistleblowing.54 Agencies are also 

required to communicate their equal employment opportunity policies on an annual basis to all employees.55

As discussed earlier, unfavorable employee perceptions of agency success at adhering to the MSPs could 

be due to many causes: (1) lack of awareness by employees regarding (a) what should be done by their 

agencies (if their expectations exceed what is required by the MSPs) or (b) what actually is being done by 

their agencies (in the event of actions that must be kept confidential, such as taking action regarding poor 

performers); (2) the strong influence of political appointees, who tended to receive much less training 

on any of the aspects of MSPs or PPPs and might be missing the mark, or (3) the need for additional 

refresher training for supervisors who might also be failing to meet the aspirational goals of the MSPs or 

to refrain from committing PPPs. In other words, these employee perceptions could be due to employees’ 

misunderstanding of what is required by the MSPs and to avoid PPPs or it could reflect the failure of agency 

decision makers at the top and middle levels to actually achieve these goals.

Supervisory Refresher Training on the MSPs

Regarding this third possible explanation, agency refresher training seems to have been underutilized. 

Particularly after they have had some experience in the role, supervisors will likely benefit from follow 

up training to reinforce or expand upon what they learned earlier. Agencies should continue to invest 

in the education of their supervisory workforce by providing refresher training at least every three years 

to supervisors as required by the Federal Workforce Flexibility Act of 2004 (P.L. 108-411) which was 

incorporated into 5 C.F.R. § 412.202. This regulation requires initial supervisory training as well as refresher 

training every three years (at a minimum). Although the requirements do not specifically mention the MSPs 

or PPPs, they do address some related subjects, such as improving performance and productivity, addressing 

poor performers, providing mentoring and coaching, and conducting performance appraisals.56

In light of the requirement for periodic supervisor refresher training, perhaps it is somewhat surprising that 

the percentage of agencies reporting refresher supervisor training is not higher, particularly regarding topics 

such as managing poor performers (66 percent) and training and development (63 percent) which closely 

54 For details on the No FEAR Act training requirements, see 5 C.F.R. § 724.203. For more information, see www.eeoc.gov/eeoc/statistics/

nofear/qanda.cfm.

55 29 C.F.R. § 1614.102(a)(4).

56 In 2010 and 2011, both the Senate and the House of Representatives drafted legislation known as the Federal Supervisor Training Act 

of 2011, which would have modified Section 4121 of title 5, United States Code, to better align supervisory training requirements with the 

MSPs and PPPs and require annual reporting to the U.S. Office of Personnel Management. However, this proposed legislation was not 

enacted.
3%

1%

39%

25%

13%

18%

First week First month 1-3 months 4-6 months More than 6

months

Don't provide

supervisor

training

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fit the requirements of the regulations.57 Therefore, it appears that many agencies may be overlooking a 

supervisory training requirement, one that would also likely prove beneficial to improving their ability to 

more fairly and effectively manage their workforce. Further, given that only 60 percent of questionnaire 

respondents stated that they provided refresher training on the broader topics of the MSPs,58 expanding the 

refresher training for supervisors to include the MSPs and PPPs would help ensure that supervisors gain 

greater expertise in making merit-based decisions and avoiding PPPs.

New Supervisor Training on the MSPs

Given the criticality for supervisors to perform their role effectively, training should be provided to new 

supervisors as promptly as possible, ideally before the supervisor moves into the new role. However, as 

shown in Figure 4, only 3 percent of agency respondents indicated their agencies provide training to new 

supervisors by the end of their first week in this role, while 40 percent provided training within 3 months 

of their hire. In contrast, substantial percentages said their agencies offered training later, while 18 percent 

stated they did not provide new supervisor training.59

Figure 4. Timing of MSP/PPP Training for New Supervisors

In terms of the length of new supervisor training regarding the MSPs and PPPs, Figure 5 shows that the 

majority offer very brief training of one to three hours (54 percent) or even less than one hour (23 percent).60

Given the importance of the MSPs and PPPs to effective supervisory performance, agencies should consider 

providing more in-depth training to include applications of the MSPs to supervisory responsibilities. Overly

57 U.S. Merit Systems Protection Board, 2014 MSP Education Agency Questionnaire, Question 1 a–m.

58 Id.

59 Id., Question 2.

60 Id., Question 3.
23%

54%

9% 9% 5%

Less than 1 hour 1-3 hours 4-8 hours 1-3 days More than 3 days

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 brief training can do little beyond introducing the text of the MSPs and PPPs as if they were phrases to be 

memorized. In contrast, the MSPs and PPPs should serve as guiding principles to influence how supervisors 

handle every workforce management decision on a daily basis, while taking into consideration the unique 

circumstances of each situation.

Figure 5. Length of MSP/PPP Training for New Supervisors

To achieve this economically, agencies may need to explore alternatives to their current training strategies, 

such as by using different methods of sharing information. For example, although in-person training may 

provide an opportunity for in-depth two-way conversations or to facilitate group discussions, agencies may 

need to supplement traditional classroom training, (which was the most frequently mentioned option, by 

52 percent of respondents) or one-on-one training (provided by 21 percent of the respondents).61 Given 

budget and time constraints, agencies may benefit from expanding technology-based training. For 

example, some agency representatives also mentioned offering self-paced computer modules (38 percent) 

and webinars (22 percent). Although self-paced computer modules and videos have upfront development 

costs, they become more economical over time. These types of technology-based training can also be 

more flexible, such as allowing the training to be delivered at the time most convenient and appropriate for 

each new supervisor, rather than waiting to get a group together or to coordinate between the trainer and 

trainee’s schedules. Agency representatives also mentioned more static forms of learning such as written 

materials (e.g., wallet cards, memos). Although written materials often serve as useful reference materials, 

they should not be relied upon to educate new supervisors regarding their complex responsibilities.

As might be expected given the content area, the majority of agencies relied heavily on HRM staff 

(58 percent) to provide new supervisor training.62 Twenty-seven percent included Equal Employment 

Opportunity staff in the training for new supervisors. Training staff and legal counsel were also frequently 

61 Id., Question 5.

62 Id., Question 6.
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mentioned as participating in this training. Some agencies hired professional trainers or invited speakers 

from other agencies to assist with new supervisor training.

Together these results suggest that there are likely a variety of ways that information on the MSPs and 

PPPs can be shared in terms of the breadth and depth of the subject matter, who receives the training, 

the timing and length of the training, who delivers the training and through what delivery mechanisms. 

However, it seems that many agencies could greatly enhance the training and education that they offer to 

their employees at all levels. Although time and money represent scarce resources in many organizations, the 

return on investment is great from having a workforce that is knowledgeable regarding the MSPs and how 

to effectively implement them in today’s complex work environments.

Training Provided by Other Organizations

In this section, we will provide an overview of resources available to Federal employees from MSPB, 

EEOC, OSC and OPM. These sources of information can serve as reference materials and guide the reader 

to additional materials. This listing will be followed by the largest section of this report, which is devoted 

to providing an overview of the MSPs. In this section, we provide a reference guide on the MSPs and their 

practical applications as we delve more deeply into each MSP and provide recommendations for improving 

management in accord with the MSPs by citing findings and recommendations from studies conducted by 

MSPB’s Office of Policy and Evaluation (OPE). We also note relevant cases that touch on aspects of the 

MSPs to illustrate where questions have emerged regarding whether agency leadership or employee actions 

were fully supporting the MSPs.

The MSPB offers a variety of additional resources on its website, www.mspb.gov. This includes an overview 

of the MSPs63 and PPPs,64 a summary of the appeal process,65 a searchable listing of MSPB decisions,66

a listing of MSPB training67 that is available online, and other information regarding the MSPB. OPE’s 

Studies web page68 provides free access to OPE’s published reports,69 as well as the newsletter, Issues of Merit.70

Anyone who is interested can also subscribe to the MSPB Studies Listserv71 to be notified whenever a 

decision or an OPE publication (e.g., report, newsletter) is released.

Similarly, Federal agencies that investigate and enforce PPPs, such as the OSC (www.osc.gov) and the 

EEOC (www.eeoc.gov) offer extensive information on their websites, as well as speakers who may be 

available to address topics relevant to the MSPs and PPPs. For example, to help agencies complete the 

2302(c) Certification Program, OSC provides extensive resources in support of each of five program 

63 www.mspb.gov/meritsystemsprinciples.htm.

64 www.mspb.gov/ppp/ppp.htm.

65 www.mspb.gov/appeals/appeals.htm.

66 www.mspb.gov/decisions/decisions.htm.

67 www.mspb.gov/training.htm.

68 www.mspb.gov/studies/index.htm.

69 Recent reports are shown at www.mspb.gov/studies/browsestudies.htm. A comprehensive archive of reports dating back to 1981 is 

located at www.mspb.gov/studies/viewallstudies.htm.

70 www.mspb.gov/studies/newsletters.htm.

71 To sign up for the MSPB Studies Listserv, follow the links from the main MSPB Studies page at www.mspb.gov/studies/index.htm or go 

directly to LISTSERV 16.0 - MSPB-STUDIESLIST-L List at listserv.mspb.gov.
22 The MSPs: Guiding the Fair and Effective Management of the Fede

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requirements: (1) post information on the thirteen PPPs and how to contact OSC; (2) include information 

on the PPPs and OSC’s jurisdiction in new employee orientation; (3) provide information annually to 

all employees about PPPs (including whistleblower retaliation) and OSC’s role; (4) provide training, in 

consultation with OSC, to managers and supervisors every three years, and (5) display a link to OSC’s 

website on the agency’s website or intranet.72 Additionally, EEOC offers training on EEO-related topics, 

such as discrimination, through webinars, on-site training and the annual EXCEL conference.73

OPM makes information available on its organizational website (www.opm.gov), and has developed HR 

University (HRU)74 as a web-based training resource center dedicated to improving knowledge within the 

Federal HRM community.75 The HRU website consolidates a variety of free and fee-based course offerings 

on topics such as staffing, performance management, and labor relations, in a searchable course catalog.76

In addition to resources specifically for HRM employees, HRU is also designed to serve a valuable function 

to educate Federal supervisors, managers and executives regarding “critical leadership competencies and 

HR technical knowledge needed to succeed.” The “Manager’s Corner” includes a subset of the HR course 

catalog, as well as leadership self-development tools and resources, such as a video library.

Included among the HRU course offerings is a free webinar, Merit System Principles and Prohibited 

Personnel Practices. As of April 2015, approximately 4,200 Federal employees at various Federal agencies 

had completed this course.77 Since web-based webinars may provide Federal agencies with a cost-effective 

way to share information on the MSPs and PPPs, HRU’s course offerings may benefit a broader audience 

than is currently being reached—to include all employees and supervisors. Given that OPM has already 

invested in the architecture for making training available via the internet, it could efficiently continue to 

expand this resource as other agencies contribute their training modules on HRU.gov. Additionally, OPM 

could further assist the development of quality training modules by using its capability to gain efficiencies of 

scale and contractually facilitate the development of these training modules, rather than having each agency 

start the process from scratch.

Also featured in the HRU course catalog are the more traditional training courses that OPM provides to 

Federal supervisors, managers and executives through a variety of courses targeting each of these levels. 

Similarly, OPM’s Center for Leadership Development offers courses that tap aspects of managing in accord 

with the MSPs.78

Finally, given their critical role and the unique challenges they may face by being new to the Federal service, 

political appointees should receive training on the MSPs and PPPs that is uniquely tailored to their level of 

responsibility. Since political appointees set the tone for the agency, they need to know (and buy into) the 

MSPs so they can act in accord with them. As a supplement to the orientation that some agencies provide, 

each Administration may provide an overview of the essentials of Federal service. On its own initiative, the 

72 See https://osc.gov/Pages/Outreach-2302Cert.aspx, accessed February 10, 2016.

73 See www.eeotraining.eeoc.gov/index.html, accessed February 10, 2016.

74 The HRU website is www.hru.gov/.

75 Information on HRU’s mission can be found at https://hru.gov/about_us.aspx.

76 The HRU course catalog is available at https://hru.gov/Course_Catalog.aspx?mgr=false. Taking a course requires registering with a 

Federal email address. As of March 12, 2015, there were 134 courses listed for HR professionals and 65 of these were available at no cost. 

77 Data on Merit System Principles and Prohibited Personnel Practices course completion shared by OPM.

78 For more information, see https://leadership.opm.gov/index.aspx.
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Partnership for Public Service, a nonprofit, nonpartisan organization that works to promote a more effective 

and efficient Federal Government,79 offers training for newly appointed members of the senior executive 

service regarding a variety of topics including the MSPs and the PPPs through a program titled Ready to 

Govern.

80 Led by current or former Federal executives, the ninety minute discussion sessions cover topics 

such as Federal Hiring: Dos and Don’ts and Ethics and Optics (ethical factors to take into account when making 

decisions in the Federal Government).81

Taken together, these resources from Federal Government agencies and other providers offer a wealth of 

educational information regarding the MSPs and how to apply them. To better prepare Federal employees 

at all levels to adequately support the merit systems and avoid PPPs, agencies would be well served to take 

advantage of the knowledge and expertise that is readily available.

79 For more information about the Partnership for Public Service, see http://ourpublicservice.org/about-us/index.php.

80 Details of the Ready to Govern program are located at http://ourpublicservice.org/issues/develop-leaders/ready-to-govern.php.

81 Information received from Ms. Tina Sung, Vice President for Government Transformation and Agency Partnerships, Partnership for 

Public Service, on October 19, 2014.
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Overview of t

Merit System Prin

By codifying the nine MSPs to provide aspirational guidance and offering additional tools to help 

supervisors more efficiently and effectively manage the Federal workforce, the CSRA was intended to 

facilitate “a civil service that is worthy of the public and its confidence: One in which hiring, promotion, 

and pay are truly based on merit and one in which those who cannot or will not perform their jobs well 

will not perform at all for the Federal Government.”82 This section reviews each MSP to briefly explain the 

intent of the MSP, summarize Federal employee opinions regarding achievement of these goals, present 

highlights of findings and recommendations from MSPB studies related to these MSPs,83 and identify 

cases where potential violations of MSPs were examined. For every MSP, there appears to be substantial 

room for improvement to gain employees’ confidence that the Federal Government has achieved these 

goals. Therefore, we encourage agency leaders to consider ways to improve their organization’s success in 

implementing these ideals for the optimal functioning of the Federal Government.

MSP 1: Recruitment, Selection and Advancement

“Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a 

work force from all segments of society, and selection and advancement should be determined solely on 

the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all 

receive equal opportunity.”

Explanation and Intent of MSP 184

MSP 1 sets the expectation that recruitment within the Federal merit systems should build a workforce that 

will effectively carry out the missions of the Federal Government while also being representative of the 

broad diversity within the population of the United States. To achieve these goals, agencies need to consider 

how to reach out to prospective applicants to ensure that they are attracting qualified candidates from a 

variety of backgrounds.

MSP 1 also emphasizes fairness by mandating selection based on merit following “fair and open 

competition” for both initial hires and promotions of current employees. This requirement represents the 

core value of hiring based on qualifications—rather than political or personal connections. As mentioned 

earlier, the Pendleton Act of 1883 replaced the patronage system with a merit system under which civil 

service appointments are based on knowledge, skills and ability, rather than political affiliation. The Civil 

82 House Committee on Post Office and Civil Service, Legislative History of the Civil Service Reform Act of 1978, at 1606 (1979) (Remarks of 

Senator Abraham A. Ribicoff).

83 Recent reports are shown at www.mspb.gov/studies/browsestudies.htm. A more comprehensive archive of reports dating back to 1981 is 

located at www.mspb.gov/studies/viewallstudies.htm.

84 These “Explanation and Intent” sections are adapted from MSPB’s summary of the MSPs, available at www.mspb.gov/

meritsystemsprinciples.htm.
26 The MSPs: Guiding the Fair and Effective Management of the Fede

Overview of the Merit System 

Service Reform Act of 1978 sought to buttress and expand upon the original intent of the Pendleton Act as 

evidenced by MSP 1’s emphasis on merit-based hiring and advancement.

The assurance of equal opportunity during the selection process reinforces the relevance of Title VII of the 

Civil Rights Act of 1964 and related laws barring discrimination in employment. Although the focus on 

merit should eliminate the influence of extraneous factors, inclusion of the reference to equal opportunity 

in MSP 1 emphasizes the importance of equal opportunity throughout the process of recruitment, selection 

and advancement.

Federal Employee Perspective

As shown earlier in the 2010 MPS results displayed in Figure 2, a majority of Federal employees (61 percent) 

believe their agencies are succeeding at recruiting a diverse pool of applicants for job vacancies. However, 

only about half (48 percent) believe their agencies hold “fair and open competition” for job vacancies and 

only 38 percent expressed confidence that the best-qualified candidates are selected.

Findings and Recommendations Related to MSP 1

As mentioned previously, MSPs serve as aspirational goals. As a result, they provide an ideal which agencies 

should strive to achieve. However, they leave significant discretion to agencies as to how to achieve these 

objectives. MSP 1 focuses on the steps needed to build a representative workforce, starting with recruitment 

and selection, and leading to later advancement as employees progress through their careers.

Recruitment/Fair and Open Competition

To build a qualified and representative workforce, agency managers need to start with an effective 

recruitment plan.85 Selecting officials should draw on expertise within their organization (e.g., Human 

Resources Management, Equal Employment Opportunity) to develop and implement a strategic 

recruitment plan that is aligned with the agency strategic and workforce plans.86While developing the 

recruitment plan, they should consider:87

1. Current and future workforce needs in terms of occupations and underlying competencies, 

considering work team and agency priorities;

2. Current workforce and occupational representation (e.g., sex, ethnicity, race) compared to the 

Civilian Labor Force (for jobs without specialized education or training requirements) or the 

Relevant Civilian Labor Force (for jobs that require specialized education or training);

3. Where and how to communicate with prospective applicants (thinking broadly to facilitate 

quality and diversity of the applicant pool, rather than relying on the most readily available 

applicants); and

85 U.S. Merit Systems Protection Board, Managing Federal Recruitment: Issues, Insights, and Illustrations, September 2004, p. 9.

86 Id. at pp. 7–9.

87 Id. and U.S. Merit Systems Protection Board, Attracting the Next Generation: A Look at Federal Entry-Level New Hires, January 2008.
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4. Who should serve as recruiters to reach out to the prospective applicants.

Effective recruitment requires understanding what competencies are required, describing them accurately 

in a vacancy announcement, and knowing where to reach out to find a qualified and diverse applicant 

pool. Although agency leaders need to carefully consider the advantages and disadvantages of targeted 

recruitment, aiming recruitment efforts at some of the most likely sources of strong candidates may quickly 

yield optimal numbers of highly qualified applicants.88 Further, the extent of outreach will likely depend 

upon how difficult it is to find the needed competencies among a representative population.89 Although 

an agency need not conduct extensive outreach and recruitment for every occupation and position, agency 

leaders should consider the return on investment—in terms of quality and diversity of the candidate pool, 

as well as the credibility of the hiring process. Even small-scale efforts to expand the applicant pool—

such as disseminating information about job openings and encouraging employees to “market” job 

opportunities—can yield more positive results than passive recruitment, such as simply posting vacancy 

announcements on USAJOBS.

MSPB reports that are most relevant to the topic of recruitment include:

▪ Managing Federal Recruitment: Issues, Insights, and Illustrations (2004)

▪ Attracting the Next Generation: A Look at Federal Entry-Level New Hires (2008)

▪ In Search of Highly Skilled Workers: A Study on the Hiring of Upper Level Employees from Outside the Federal 

Government (2008)

▪ Reforming Federal Hiring: Beyond Faster and Cheaper (2006) 

▪ The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs (2015)

Basic principles of fair and open competition require:

1. Announcing vacancies through appropriate means;

2. Clearly articulating the attributes of qualified and ideal candidates; and

3. Using appropriate hiring authorities (or a combination of them to achieve balance) to bring on 

board a qualified and representative pool of new hires.

Statute envisions that Federal agencies will use open competitive examinations to appoint an individual who 

is not a current or previous Federal employee to a competitive service position and prescribes procedures to 

promote openness.90 The standard requirements of competitive examining, such as public notice91

88 U.S. Merit Systems Protection Board, Attracting the Next Generation: A Look at Federal Entry-Level New Hires, January 2008, pp. 21–22 and 

U.S. Merit Systems Protection Board, Managing Federal Recruitment: Issues, Insights, and Illustrations, September 2004, pp. 5–13.

89 U.S. Merit Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, September 2006, p. 15.

90 5 U.S.C. § 3302.

91 The public notice requirement is met through posting on USAJOBS.
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Overview of the Merit System 

and minimum open periods, are intended to allow members of the public to learn of job openings and 

application procedures.

However, agencies must design and communicate job requirements with care. Although agencies have 

delegated authority to define job requirements, they should ensure that such stated requirements do not 

unduly restrict competition or place an inappropriate amount of weight on organization-specific knowledge. 

Also, they should avoid practices (e.g., creating selective factors that are more narrow than the actual job 

requirements, shortening the vacancy announcement open period, restricting the area of consideration) that 

may give the appearance of rigging the vacancy announcement for a preselected candidate.92

Further, agencies need to thoughtfully consider the choice of hiring authorities because this can greatly 

impact the breadth of the candidate pool, as well as the ability to reach certain candidate pools. Limiting 

the scope may be appropriate and need not conflict with the goals of a representative workforce, while 

soliciting applications too broadly may produce a large number of unqualified applicants and contribute to 

the perception that job competitions are shams—exercises conducted solely for the sake of appearances. 

Previous MSPB research confirms that such perceptions are widespread.93 And in some cases, these 

perceptions have been found to be grounded in practices that attempted to subvert MSP 1 and the concept 

of fair and open competition.

For more information on fair and open competition, please see the following MSPB reports:

▪ The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs (2015)

▪ In Search of Highly Skilled Workers: A Study on the Hiring of Upper Level Employees from Outside the Federal 

Government (2008)

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

Assessment

To convince employees and other observers that selection decisions are being made appropriately, Federal 

agencies should strive for greater rigor and transparency in the assessment process. Accordingly, we suggest 

that hiring officials, HR staff, and others involved in making or influencing hiring decisions should take 

a number of steps to ensure the integrity of the hiring process and be as transparent about the process as 

possible. Most fundamentally, selection criteria must be job-related, carefully assessed, and the impacts of 

their usage evaluated for adverse impact. These are discussed in more detail below and in the related reports 

from MSPB. 

92 U.S. Merit Systems Protection Board, In Search of Highly Skilled Workers: A Study on the Hiring of Upper Level Employees from Outside the Federal 

Government, Washington, DC, February 2008, pp. 38–39.

93 U.S. Merit System Protection Board, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, 

Washington, DC, December 2013, pp. 7–11, pp. 18–20, and pp. 23–25 and U.S. Merit Systems Protection Board, Fair and Equitable Treatment: 

Progress Made and Challenges Remaining, Washington, DC, December 2009, p. 72.
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1. The selection criteria should be essential to the job and not chosen for their ability to unfairly 

provide an advantage to preferred applicants.

2. Critical skills should be directly assessed through valid and reliable assessment techniques that 

can directly assess the skills, rather than drawing inferences based on indirect measures, such as 

education or training that the applicant has completed.

3. Assessments should be structured and administered in a uniform manner rather than relying 

upon more haphazard approaches. This will improve the quality of the assessment process and 

the resulting decisions, by helping focus the assessors on the job-related criteria and decrease the 

potential influence of unconscious biases or assumptions.

4. Evaluate the diversity of the applicant pool and the new hires to identify if any potential barriers 

exist that are undermining representation.

The first step in the assessment process is to identify job-related criteria. To achieve this, agencies must 

conduct a job analysis to identify: “(1) The basic duties and responsibilities; (2) The knowledge, skills, 

and abilities required to perform the duties and responsibilities; and (3) The factors that are important in 

evaluating candidates.”94 Also, to promote job-relatedness and consistency in competitive service hiring 

and promotion, OPM develops and publishes qualification standards that agencies must apply (and an 

applicant or employee must meet) before placement.95 Federal agencies have direct or delegated authority to 

interpret and establish hiring criteria, but they must demonstrate excellent judgment to ensure their hiring 

criteria are appropriate.

The second step of the assessment process is to identify which assessment tools will be implemented. 

Federal agencies are required to use valid assessment methods to evaluate applicants against job-related 

criteria and to base referral and selection on that evaluation. For example, in a competitive examination, 

agencies are required to identify quality groups (“categories”), consistent with the policy requiring job-related 

hiring criteria. Agencies must then use valid assessments to determine whether applicants meet minimum 

qualifications and assign applicants who meet requirements to a quality category and limit selections to 

applicants in the highest quality category, consistent with the principle of basing selection on relative ability.96

Federal agencies are also required to follow these basic policies, albeit in simplified form, for internal 

promotions and placements.97 This regulation, which governs competitive service promotion and placement 

internal to the Federal Government, defines when competition is required (in essence, most situations in 

which an agency wishes to place an employee at a level for which he or she has not previously competed) and 

basic requirements for that competition, which include identification of a pool of best-qualified applicants 

and selection within only that pool.

94 5 C.F.R. § 300.103(a).

95 U.S. Office of Personnel Management, Qualification Standards, accessed December 17, 2015 at www.opm.gov/policy-data-oversight/

classification-qualifications/general-schedule-qualification-standards/#url=Group-Standards. Additional qualification requirements are 

found at 5 C.F.R. Part 338.

96 U.S. Office of Personnel Management, Delegated Examining Operations Handbook: A Guide for Federal Agency Examining Offices, May 2007, 

accessed December 17, 2015 at www.opm.gov/policy-data-oversight/hiring-authorities/competitive-hiring/deo_handbook.pdf and 5 U.S.C. 

Chapter 33. Agencies must also apply and observe veterans’ preference.

97 5 C.F.R. Part 335.
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One target for improving efficiency within the Federal Government in recent years has involved the Federal 

hiring process. This impacted application and selection procedures in sometimes unintended ways. For 

example, one initiative under hiring reform discontinued knowledge, skill and ability (KSA) narratives as 

part of the initial application for employment. While this expedited the application and initial assessment 

process for both applicants and agencies, it also increased the number of applicants, with an increase in 

unqualified applicants who could now apply without a substantial investment of their time and effort. As 

a result, other parts of the process may take longer given the time required to sort through the increased 

volume of applications.

Selection methods differ widely in their validity.98 Unfortunately, there is considerable evidence that Federal 

agencies’ assessments of job applicants often fall short of what is necessary and attainable.99 Federal agencies 

have frequently chosen assessment methods more for their convenience than for their predictive power.100

Given that only 38 percent of survey respondents agreed that their organization selects the best qualified 

candidates for job vacancies, there is considerable room for improvement in this area. To improve their 

ability to fairly and effectively identify the best candidates, agencies should also focus on improving the 

quality of selection procedures.

The third step of the assessment process is to properly apply these selection procedures to determine 

which of the candidates are qualified, and subsequently, to identify which candidate should be selected. 

Unfortunately, otherwise valid selection instruments may be poorly implemented which dramatically 

undermines the validity of the assessment tool.101

For example, training selecting officials and others involved in the selection process is critical to the 

appropriate use of selection tools.102 Providing decision makers with greater flexibilities and more options 

requires additional attention to making sure that they fully understand the implications of the choices that 

they make.

The fourth and final step is that Federal agencies are expected to evaluate their hiring processes and 

outcomes.103 For example, EEOC requires Federal agencies to conduct analyses and submit reports under its 

Management Directive 715 (MD-715), to include hiring and representation of historically underrepresented 

groups—i.e., progress toward achieving a workforce representative of all segments of society, as envisioned 

in the first MSP.104

98 See, for example, Frank L. Schmidt and John E. Hunter, “The Validity and Utility of Selection Methods in Personnel Psychology: 

Practical and Theoretical Implications of 85 Years of Research Findings,” Psychological Bulletin, the American Psychological Association, Inc., 

Vol. 124, No. 2, Sep. 1998, p. 265.

99 U.S. Merit Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, Washington, DC, July 2006, pp. 19–21.

100 U.S. Merit Systems Protection Board, Assessing Federal Job Seekers in a Delegated Examining Environment, Washington, DC, December 2001, 

p. viii. 

101 Id. at pp. 28–31 and U.S. Merit Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, Washington, DC, July 2006, 

pp. 21 and 23.

102 U.S. Merit Systems Protection Board, A Call to Action: Improving First-Line Supervision of Federal Employees, Washington, DC, December 

2010, pp. 34–35. 

103 U.S. Merit Systems Protection Board, Fair and Equitable Treatment: Progress Made and Challenges Remaining, December 2009, pp. 8–9. 

104 See EEOC guidance on MD-715, such as at www.eeoc.gov/federal/directives/md715.cfm, accessed February 25, 2016.
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MSPB has published many reports on improving the selection process. These include: 

▪ Reforming Federal Hiring: Beyond Faster and Cheaper (2006)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

▪ Assessing Federal Job Seekers in a Delegated Examining Environment (2001)

▪ Federal Appointment Authorities: Cutting through the Confusion (2008)

MSPB has also evaluated a variety of assessment and selection instruments. For more details, please see the 

following reports:

▪ The Federal Selection Interview: Unrealized Potential (2003)

▪ Evaluating Job Applicants: The Role of Training and Experience in Hiring (2014)

▪ Identifying Talent Through Technology: Automated Hiring Systems in Federal Agencies (2004)

▪ Job Simulations: Trying Out for a Federal Job (2009)

▪ Reference Checking in Federal Hiring: Making the Call (2005) 

Another critical, though sometimes overlooked, final step of the hiring process involves the assessment of 

the new employee before the end of the probationary period. Given the protections that Federal employees 

gain upon satisfactory completion of the probationary period, supervisors should carefully consider whether 

the employee has truly earned these rights by demonstrating successful performance on the job. In fact, 

MSPB has previously recommended that this change from probationary to permanent status not be left 

to a default mechanism driven by time, but rather require the active approval by the supervisor to avoid 

overlooking this crucial decision point. This topic was explored in the following MSPB reports:

▪ The Probationary Period: A Critical Assessment Opportunity (2005)

▪ Navigating the Probationary Period After Van Wersch and McCormick (2007)

Lessons Learned from Case Examples

Fair and Open Competition – Illustration from Case Law: Special Counsel v. Lee and Beatrez105

History. The agency initially announced a GS-11 position under both delegated examining and merit 

promotion procedures. After candidates were screened and referred, the selecting official contacted Lee, the 

field HR specialist, to find out why a particular current employee was not on the referral list. Lee informed 

the official that the employee did not qualify and advised her to state that the vacancy announcement had 

not produced sufficient well-qualified candidates. That statement would enable her to re-advertise with the 

hopes that the intended selectee would then qualify.

105 See Special Counsel v. Lee, 114 M.S.P.R. 57, ¶ 35 (2010) and U.S. Merit Systems Protection Board, Case Report for May 21, 2010.
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Following re-advertisement, Beatrez, another HR specialist, refused to refer the intended selectee because 

he did not meet the requirement for time in grade. Lee then advised re-advertising the position at the GS-11 

and GS-9 levels with the stated goal of expanding the pool of qualified applicants. However, contrary to that 

stated goal, Lee: (1) announced the position only under merit promotion procedures, restricting the pool to 

current and former Federal employees, (2) limited the area of consideration to the immediate geographical 

area; and (3) opened the announcement for only the minimum time required. The intended selectee applied 

and was referred and selected.

Holding and consequences. OSC filed a complaint with MSPB seeking disciplinary action against three 

individuals for violating 5 U.S.C. § 2302(b)(6) by subverting fair and open competition to provide an 

unauthorized preference to a job applicant. The Board ordered disciplinary action against Lee (a forty-five 

day suspension without pay) and Beatrez (a ten day suspension without pay). (The third individual, the 

selecting official, retired before disciplinary action could be taken.) However, the U.S. Court of Appeals 

for the Federal Circuit reversed the decision against Beatrez, due to insufficient evidence that her actions 

indicated improper intent.106 Given that culpability hinges upon not only violating a PPP, but also doing 

so intentionally,107 it is critical to ascertain the motives behind an action and in this case, the judge decided 

that there was insufficient evidence that she acted with intent to grant an unauthorized preference to the 

preferred candidate.108

Implications for practice. Selecting officials—and those who advise them—should be on notice that any 

employee who manipulates the hiring procedures to favor a candidate may face serious consequences. 

Although selecting officials have considerable discretion to design vacancy announcements to attract 

and identify a pool of well-qualified applicants, they cannot engineer procedures or outcomes that are 

inconsistent with “fair and open competition.”

Assessment – Illustration from Case Law: Mapstone v. Department of the Interior109

History. In Mapstone v. Department of the Interior, the appellant challenged his nonselection for a position 

which required a four-year college degree. Since the appellant had extensive related work experience, as 

well as two associate’s college degrees, he maintained that the educational requirement is not necessary to 

successful performance in the job. While nonselection generally does not fall under MSPB’s jurisdiction, 

MSPB jurisdiction may apply when two criteria are met: (1) the appeal concerns an employment practice 

administered by OPM and (2) the appellant alleges a violation of one of the “basic requirements” of 

5 C.F.R. § 300.103.

Holding and consequences. Although the initial decision dismissed the case due to lack of jurisdiction, the Board 

granted the petition for review and found that the appellant had demonstrated that the case fell within 

MSPB’s jurisdiction. The case was remanded to the regional office, but during the adjudication of the appeal, 

106 See Beatrez v. Merit Systems Protection Board, 413 F. App’x 298 (Fed. Cir. 2011) (nonprecedential). 

107 For more information, see the discussion at www.mspb.gov/ppp/ppp.htm regarding “What requirements apply to proving a PPP?” and 

the background of the CSRA at S. Rep. No. 95-969.

108 Beatrez v. Merit Systems Protection Board, 413 F. App’x 298 (Fed. Cir. 2011) (nonprecedential).

109 See Mapstone v. Department of the Interior, 110 M.S.P.R. 122, ¶¶ 3, 8 (2008).
“All employees and applicants for employment should receive fair and equitable treatment in all aspects 

of personnel management without regard to political affiliation, race, color, religion, national origin, sex, 

marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional 

rights.”

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the appellant and the agency reached a settlement agreement, which means that there was no final decision 

on the merits of the issue.110

Implications for practice. Agencies—and hiring officials—must be able to demonstrate that their screening and 

selection criteria are relevant to successful performance on the job and that they have applied those criteria 

properly.

MSP 2: Equity

Explanation and Intent of MSP 2

MSP 2 reinforces the concept expressed in MSP 1 that Federal employees and applicants should be treated 

fairly and MSP 2 specifically emphasizes that they not be subjected to discrimination on legally protected 

bases. MSP 2 summarizes the bases on which decisions must NOT be made, which corresponds closely to 

PPP 1 and affirms the intent of prior laws. For example, the Pendleton Act of 1883 replaced the patronage 

system with a merit system. Further, Title VII of the Civil Rights Act of 1964 and related laws prohibited 

discrimination in employment decisions based on race, color, religion, national origin, sex, marital status, 

age, or disability. Additionally, the No FEAR Act of 2002 required annual employee training to raise 

awareness about “rights and remedies” under anti-discrimination and whistleblower protection laws.111

In terms of scope, while MSP 1 focuses on recruitment and selection, MSP 2 includes the broader frame of 

reference of “all aspects of personnel management.” This choice of wording expands the coverage to include 

the full range of employment decisions, such as recruitment and hiring, providing training and development 

opportunities, conducting performance management activities, granting pay increases and cash awards, and 

removal, if necessary.

Beyond protection against discrimination, MSP 2 also notes that employees and applicants for employment 

are also entitled to the protections of the U.S. Constitution and the Privacy Act. The Constitution, including 

the Bill of Rights, grants everyone, including Federal employees, certain rights. However, these rights must 

also be balanced with the needs of the Government. For example, Federal employees maintain freedom of 

speech (First Amendment) rights. In fact, “whistleblower” laws, such as noted in MSP 9 and PPP 3, protect 

employees who make a covered disclosure.112 However, employees must respect limitations on their rights 

to speech, such as Hatch Act prohibitions against lobbying for political candidates113 (as covered in MSP 8 

and PPP 3).

110 Mapstone v. Department of the Interior, MSPB Docket No. AT-3443-07-0076-B-2 (Initial Decision, Jan. 13, 2008).

111 See www.eeoc.gov/eeoc/statistics/nofear/qanda.cfm, accessed on March 4, 2016.

112 U.S. Merit Systems Protection Board, Whistleblower Protections for Federal Employees, Washington, DC, September 2010, pp. 9–10. 

113 The Hatch Act, 5 U.S.C. §§ 7321–7326, places restrictions on the political activities of Federal employees.
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Under the Fifth Amendment, career employees have due process rights which require Federal agencies to 

follow procedural requirements before a Federal employee can be removed.114 Therefore, Federal employees 

can be removed for performance or conduct—but the proper procedures must be followed to ensure their 

removal has a legitimate basis and is not politically motivated. These rights are discussed more fully in 

MSP 6 and MSP 9, as well as in related PPPs.

Regarding privacy, the Fourth Amendment specifically grants employees the right to a “reasonable 

expectation” of privacy, although as usual, this must be weighed against the employers’ needs. Additionally, 

the Privacy Act115 outlines the requirements for Federal agencies to collect and securely maintain 

information on their employees, balanced against the employees’ rights to privacy. Further, agencies must 

inform employees as to why this information is being collected and provide them with an opportunity to 

review the records, and correct any inaccuracies.

Federal Employee Perspective

Two-thirds of Federal employees (66 percent) agreed on the 2010 MPS that their agency prevents prohibited 

discrimination and 60 percent felt their agency rectifies prohibited discrimination, when it does occur. In 

comparison, just over half (52 percent) agreed with the more general statement that their organization treats 

employees fairly.

Findings and Recommendations Related to MSP 2

As part of its studies function, MSPB frequently analyzes Federal workforce data to assess representation 

and employee perceptions as gathered through surveys, discussion groups, and interviews. Research topics 

include the MSPs and PPPs and related issues. Because data has been collected periodically over the past 

35 years, our analyses reveal not only the current status, but also allow examination of trends over time.

Trends in Federal Workforce Composition and Employee Opinions

MSPB has conducted studies that examine the composition of the Federal workforce by demographic 

groups (e.g., ethnicity, race and sex).116 These longitudinal analyses of the Federal workforce have found 

that progress has been made as the Federal workforce has become more diverse. However, the Federal 

workforce has not fully achieved representation, particularly among higher grade levels.117 For example, 

ethnic and racial minorities and women remain under-represented at the higher levels of pay, such as 

the General Schedule grades GS-14 and GS-15, as well as in supervisory and executive roles. Hispanic 

employees remain under-represented in the overall Federal workforce.

114 U.S. Merit Systems Protection Board, What is Due Process in Federal Civil Service Employment?, Washington, DC, May 2015, p. 11.

115 5 U.S.C. § 552a.

116 MSPB first studied these topics in the 1990s and issued the reports Fair and Equitable Treatment: A Progress Report on Minority Employment 

in the Federal Government (1996) and A Question of Equity: Women and the Glass Ceiling in the Federal Government (1992). MSPB re-examined these 

topics in the 2000s and issued Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009) and Women in the Federal Government: 

Ambitions and Achievements (2011).

117 U.S. Merit Systems Protection Board, Fair and Equitable Treatment: Progress Made and Challenges Remaining, Washington, DC, December 2009, 

pp. 21–22 and U.S. Merit Systems Protection Board, Women in the Federal Government: Ambitions and Achievements, Washington, DC, May 2011, 

pp. 5–6.
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Another perspective on how Federal employees view their treatment over time has been obtained through 

MSPB’s periodic Merit Principles Survey (MPS). The MPS includes core items that address employee 

perceptions regarding the occurrence of PPPs, such as discrimination based on race, sex, political affiliation, 

religion, marital status, age, or disability. Since 1996, survey responses have consistently indicated a 

downward trend in the prevalence of perceived discrimination based on race or national origin, sex, and 

age.118 As of 2010, no more than five percent of Federal employees said they experienced discrimination 

based on their race or national origin, sex, and age and fewer than three percent indicated that they had 

experienced discrimination based on marital status, disability, religion, and political affiliation. Additionally, 

Federal employees have generally become less likely to think that they have been treated unfairly in terms 

of career advancement, awards, discipline, training, pay, assignments and appraisals.119 These results suggest 

improvement in employees’ perceptions regarding how well Federal agencies adhere to MSP 2, but survey 

results also suggest there is still some room for improvement.

MSPB has analyzed and compared the composition of the Federal workforce and shifts in Federal employee 

opinions, by demographic groups, over time in reports, such as:

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

▪ Women in the Federal Government: Ambitions and Achievements (2011)

▪ Fair and Equitable Treatment: A Progress Report on Minority Employment in the Federal Government

(1996)

▪ A Question of Equity: Women and the Glass Ceiling in the Federal Government (1992)

▪ Achieving a Representative Federal Workforce: Addressing the Barriers to Hispanic Participation

(1997)

The Role of Supervisors and Agencies in the Fair and Equitable Management of Employees

Many of the strategies for improving representation were discussed under MSP 1. Fair and effective 

recruitment, assessment and selection procedures—both at the time of initial hire and during subsequent 

career advancement—are necessary to ensure a Federal workforce that is qualified and representative. 

However, fair treatment goes beyond selection decisions and requires that supervisors treat employees fairly 

and make decisions based on merit at every decision point regarding their careers.

Agencies rely heavily upon their supervisors to ensure that employees and applicants are treated fairly on 

a day-to-day basis. Therefore, first and foremost, agencies must ensure that their supervisors are willing 

and able to treat all employees according to the MSPs. To achieve this, agencies need to start by investing 

adequate time and effort into the recruitment, selection and development of supervisors, as well as holding 

accountable any supervisors who fail to support the MSPs through their daily actions.120

118 U.S. Merit Systems Protection Board, Fair and Equitable Treatment: Progress Made and Challenges Remaining, Washington, DC, December 2009, 

p. 54.

119 U.S. Merit Systems Protection Board, The Federal Government: A Model Employer or a Work In Progress? Perspectives from 25 Years of the Merit 

Principles Survey, Washington, DC, September 2008, p. 35. Data was also collected from the 2005 and 2010 Merit Principles Surveys. 

120 U.S. Merit Systems Protection Board, A Call to Action: Improving First-Level Supervision of Federal Employees, Washington, DC, May 2010. 
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Supervisors should keep in mind their influence over the careers of their employees through a multitude 

of major and minor interactions. As a result, they should exercise caution whether making decisions 

such as regarding, hiring, pay and awards, and discipline or regarding the distribution of assignments or 

training and development opportunities.121 In particular, the assignment of “acting supervisor” should be 

considered because research has shown this to be career-enhancing when seeking to advance to supervisory 

roles.122 Supervisors also need to realize the importance of providing feedback to all employees regarding 

their performance and how to improve so all employees can understand what is critical to job success and 

advancement.123

Agencies have organizational level responsibilities for identifying and rectifying unfair treatment. These can 

be accomplished through:

1. Transparency—Ensuring that the criteria for personnel decisions are objective and merit-based 

and communicating these criteria to supervisors and employees;

2. Employee surveys and program evaluations to identify concerns that might not be raised at the 

individual level;

3. Procedures to identify and resolve unfairness in the workplace, such as through the EEO 

complaint and grievance processes, after ensuring that employees are aware of their rights; 

and

4. Workforce analyses, such as that required by the EEOC’s Management Directive 715, to 

examine workforce composition compared to the Civilian Labor Force and to identify possible 

barriers to a fully representative workforce.

It is good news that workforce trends and survey results suggest that Federal employees have growing 

confidence that they will not be discriminated against based on non-merit factors such as political affiliation, 

race, color, religion, national origin, sex, marital status, age or disability. However, agencies must maintain 

vigilance and focus on merit in all decisions to avoid any discrimination on these legally protected bases 

within their workforces.

MSPB has provided recommendations to agency leaders regarding the fair and equitable management of 

employees through reports such as:

▪ A Call to Action: Improving First-Level Supervision of Federal Employees (2010)

▪ Managing for Engagement—Communication, Connection, and Courage (2009)

121 U.S. Merit Systems Protection Board, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, Washington, DC, December 2013, pp. 10–15.

122 U.S. Merit Systems Protection Board, Fair and Equitable Treatment: A Progress Report on Minority Employment in the Federal Government, 

Washington, DC, August 1996, p. 34 and U.S. Merit Systems Protection Board, Fair and Equitable Treatment: Progress Made and Challenges 

Remaining, Washington, DC, December 2009, p. 44.

123 U.S. Merit Systems Protection Board, Managing for Engagement—Communication, Connection, and Courage, Washington, DC, July 2009, 

pp. 22–29.
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▪ Managing Public Employees in the Public Interest: Employee Perspectives on Merit Principles in the Federal 

Workplaces (2013)

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

▪ Women in the Federal Government: Ambitions and Achievements (2011)

Lessons Learned from Case Examples

Fair and Equitable Treatment – Illustration from Case Law: Davis v. Department of the Interior124

History. The appellant challenged the agency’s proposed removal action and alleged that the agency’s 

actions were grounded in discrimination based on race and sex and due to retaliation for her filing an EEO 

complaint.

Holding and consequences. Following the hearing of the initial appeal, the MSPB administrative judge decided 

that the agency had proven its case for removal, while the appellant had not demonstrated that this action 

was due to retaliation for protected EEO activity. However, upon subsequent review, the Board referred 

the case back to the administrative judge to consider the appellant’s affirmative defenses of race and sex 

discrimination. The administrative judge found these arguments unpersuasive and given that this was 

a “mixed case,”125 the appellant filed a petition for review with the EEOC. The EEOC reviewed the 

evidence and found that the agency’s reasons for removing the appellant were based on discrimination. 

MSPB deferred to EEOC’s interpretation of discrimination law and ordered the Department of the Interior 

to reinstate the appellant with back pay, and sent the case back to the regional office to adjudicate the 

appellant’s claim for compensatory damages.

Implications for practice. Agencies must ensure that discrimination based upon any of the legally protected 

bases does not influence any actions towards employees. Agencies will also be well-served by treating all 

employees respectfully and equitably.126

124 Davis v. Department of the Interior, MSPB Docket No. AT-0752-09-0860-E-1 (Initial Decision, Aug. 15, 2014).

125 As described in 29 C.F.R. §1614.302, mixed case appeals are those appeals that are filed with MSPB because they relate to an action 

under MSPB’s jurisdiction, and the appellant alleges that the agency took this action due to discriminatory reasons. 

126 As outlined in EEOC’s summary of this case, Annette Davis v. Sally Jewell, Secretary, Department of the Interior, EEOC Petition No. 

0320110050 (Jul. 16, 2014), the appellant contended that disparate treatment included disrespectful and threatening communication, reduced 

cash awards, disapproval of leave requests, denial of access to computer programs needed to complete work, low performance appraisal 

ratings, disciplinary action, and ultimately, the removal action.
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MSP 3: Compensation

“Equal pay should be provided for work of equal value, with appropriate consideration of both national 

and local rates paid by employers in the private sector, and appropriate incentives and recognition should 

be provided for excellence in performance.”

Explanation and Intent of MSP 3

MSP 3 continues the emphasis on fairness, this time with regards to pay and performance recognition.127

MSP 3 embodies the vision that maintaining equitable salaries and rewarding excellent performance will 

attract and retain the most effective and efficient Federal workforce.

Additional details regarding how to achieve the goals of MSP 3 are covered in the Classification Act, 

which guides pay setting in accordance with the duties, responsibilities, and qualification requirements of 

each occupation.128 This facilitates the ability to provide equal pay for work of equal value based on these 

objective criteria. Further, MSP 3 reflects the stated policy of Congress that pay for Federal employees under 

the General Schedule and the Prevailing Rate Systems (wage grade employees) should take into account 

both national and local pay rates compared to private sector salaries.129 For example, areas with significant 

pay disparities (over five percent) may receive locality-based pay supplements.130

The last clause of MSP 3 references the requirement for agencies to create performance appraisal systems 

in accord with 5 U.S.C. § 4302. Beyond documenting accomplishments, agencies should support incentive 

awards programs to acknowledge high performing employees.131 These awards often include performancebased cash and time-off awards, although agencies may pursue alternatives, particularly during times of 

severe budgetary constraints.

Federal Employee Perspective

Nearly two-thirds of Federal employees (63 percent) reported on the 2010 MPS that their organization 

pays employees fairly. However, only about half (51 percent) agreed that their organization recognizes and 

rewards excellence.

Findings and Recommendations Related to MSP 3

As mentioned under MSPs 1 and 2, supervisors must make all workforce management decisions—including 

those impacting pay and the distribution of awards—in a fair and equitable manner. This requires 

127 5 U.S.C. Chapter 53.

128 5 U.S.C. § 5101(1).

129 5 U.S.C. § 5304(a), 5 U.S.C. § 5341.

130 Id.

131 5 U.S.C. Chapter 45 and 5 C.F.R. Part 451.
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basing decisions about placing employees at appropriate pay levels (whether at initial hire or subsequent 

promotions), given their job-related qualifications, in addition to providing awards based on performance.

Setting Pay

To facilitate providing equal pay for work of equal value, OPM is required by law to “define Federal 

occupations, establish official position titles, and describe the various levels of work” and it accomplishes 

this through position classification standards that agencies use to determine the title, series, and grade of 

positions covered by Title 5 C.F.R.132 However, each agency is responsible for ensuring that its positions 

are properly classified.133 To achieve this, supervisors need to work with HRM staff when preparing to 

fill a vacancy. They should start by developing or reviewing a position description to describe the work 

to be performed, typically taking into account factors such as knowledge required, supervisory controls, 

guidelines, complexity, scope and effect, personal contacts and their purpose, physical demands and work 

environment, which determine the grade.134

Working together requires time and effort to ensure that positions are properly classified. However, MSPB 

research has found that selecting officials and HRM staff face challenges in terms—not only of having the 

time to invest in hiring, and the prerequisite classifying of positions—but also to maintain the necessary 

expertise to perform this essential function.135 Providing the time and resources for supervisors and HRM 

staff to be able to make accurate classification decisions greatly enhances the ability to achieve the pay equity 

goals of MSP 3.

Approving Pay Increases/Promotions

Upon being placed in the correct series and grade at the time of hire, employees can also earn permanent 

pay increases based on their performance. For example, most employees within the General Schedule 

receive within-grade increases (WGIs) for demonstrating competent performance on the job (e.g., “fully 

successful” or higher).136 Supervisors also have the discretion to acknowledge outstanding performers by 

approving quality step increases (QSIs) which grant a within-grade increase before the end of the standard 

waiting period.137 Employees who have competed for a career ladder promotion series may be promoted to 

the next grade if rated “fully successful” overall and on all elements that are deemed critical to success at the 

higher grade level.138 However, these actions to grant within-grade pay increases or career ladder promotions 

should not be automatic and the supervisor should ensure that the employees’ performance warrants the 

advancement by effectively utilizing the performance management process to monitor and document 

performance.

132 U.S. Office of Personnel Management, The Classifier’s Handbook (TS-107, August 1991), accessed January 21, 2016 from www.opm.gov/

policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/classifierhandbook.pdf, p. 4.

133 U.S. Office of Personnel Management, Introduction to the Position Classification Standards (TS-34, July 1995 and TS-107, August 1991, revised 

August 2009), accessed January 21, 2016 at www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedulepositions/positionclassificationintro.pdf.

134 U.S. Office of Personnel Management, The Classifier’s Handbook (TS-107, August 1991), accessed January 21, 2016 from www.opm.gov/

policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/classifierhandbook.pdf, pp. 7–8.

135 U.S. Merit Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, Washington, DC, September 2006, p. 41–43.

136 5 C.F.R. §§ 531.401–411.

137 5 C.F.R. §§ 531.501–504.

138 5 C.F.R. § 335.104.
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To further assist the matching of pay levels with their qualifications and contributions, current (or eligible 

former) Federal employees may also be promoted competitively through the merit promotion process, 

which involves the assessment of applicants against job-related criteria.139 MSPB has conducted research 

into the merit promotion process and found that many employees have reservations about the fairness of 

the outcomes.140 As discussed under MSP 1, only 38 percent of employees agreed that the best qualified 

candidates are selected. Similarly, results from OPM’s 2015 Federal Employee Viewpoint Survey revealed 

only 33 percent of respondents agreed that promotions are based on merit.141 Unfortunately, these concerns 

have persisted over time since data from MSPB’s 1996 MPS also revealed concerns about whether or not 

employees are promoted based on their relative knowledge, skills and abilities.142 This topic will be discussed 

further under MSP 8.

Providing Recognition

In accord with MSP 3, supervisors also recognize performance through periodic awards, which can include 

cash or time-off awards. MSPB research regarding performance-based compensation has identified a 

number of questions that agencies should consider to improve the effectiveness of their efforts to recognize 

excellent performance.143 For example, agencies should consider how much money can and should be 

made available for salary increases and cash awards. Although some Federal agencies have experimented 

with pay for performance compensation systems that allow more discretion surrounding the amounts of 

annual salary and awards, most Federal agencies have only offered minimal cash awards or pay increases, 

particularly in light of budgetary limits imposed in recent years.144

The unavailability of funding for individual cash awards may help explain why so few Federal employees 

(35 percent) see a link between their job performance and the amount of their awards.145 Fortunately, MSPB 

research has found that although significant numbers of Federal employees agree that awards are important 

to seeking and continuing employment with their organizations, awards ranked ninth in popularity behind 

other job factors such as how personally satisfying or interesting the work is, job security and “being able to 

serve the public.”146

Nevertheless, effective management of employees requires effective performance management practices. 

Beyond ensuring that employees receive accurate performance ratings (and performance recognition), 

effective performance management also improves employee engagement147 and consequently, produces 

139 5 C.F.R. Part 335.

140 U.S. Merit Systems Protection Board, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, 

Washington, DC, December 2013; U.S. Merit Systems Protection Board, The Merit Promotion Program: Process vs. Outcome, Washington, DC, 

December 2001.

141 U.S. Office of Personnel Management, Federal Employee Viewpoint Survey Results Governmentwide Management Report, p. 29.

142 U.S. Merit Systems Protection Board, Managing Public Employees in the Public Interest: Employee Perspectives on the Merit Principles in Federal 

Workplaces, Washington, DC, January 2013, p. 77.

143 U.S. Merit Systems Protection Board, Designing an Effective Pay for Performance Compensation System, Washington, DC, January 2006, 

pp. 14–18.

144 U.S. Office of Personnel Management and U.S. Office of Management and Budget, Memorandum for Heads of Executive Departments and 

Agencies, Subject: Guidance on Awards for Fiscal Year 2014, M-14-02, November 1, 2013. 

145 U.S. Merit Systems Protection Board, Federal Employee Engagement: The Motivating Potential of Job Characteristics and Rewards, Washington, DC, 

December 2012, p. 23.

146 Id. at p. 21.

147 U.S. Merit Systems Protection Board, Managing for Engagement—Communication, Connection, and Courage, Washington, DC, July 2009, p. ii.
“All employees should maintain high standards of integrity, conduct, and concern for the public interest.”

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desirable organizational outcomes, such as improved performance and lower turnover.148 Therefore, agencies 

should ensure that they adhere to the best practices for effective performance management, such as those 

summarized in MSPB’s 2009 report, Managing for Engagement–Communication, Connection, and Courage, which will 

be discussed in more detail under MSP 6.149

MSPB has explored issues related to providing appropriate pay and recognition through the following 

reports:

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Managing Public Employees in the Public Interest: Employee Perspectives on Merit Principles in Federal 

Workplaces (2013) 

▪ Federal Employee Engagement: The Motivating Potential of Job Characteristics and Rewards (2012)

▪ Managing for Engagement—Communication, Connection, and Courage (2009)

▪ Designing an Effective Pay for Performance Compensation System (2006)

MSP 4: Conduct

Explanation and Intent of MSP 4

MSP 4 sets the expectation that Federal employees should demonstrate exemplary integrity and conduct 

to maintain the public’s trust and honor their obligations to serve the public in a manner that is efficient 

and effective. Providing more details on standards of conduct that are applicable to all Federal employees, 

the Principles of Ethical Conduct can be found in Appendix F or at 5 C.F.R. Part 2635.101. For example, 

the first principle stipulates that “Public service is a public trust, requiring employees to place loyalty to the 

Constitution, the laws, and ethical principles above private gain.” The remaining thirteen principles provide 

variations on this theme to offer examples of how Federal employees need to guard against unethical, selfserving behavior.

In addition to the prosocial desire to uphold the public trust, Federal employees may also seek to avoid 

punitive actions for lacking integrity. Specific statutory provisions govern agency practices for addressing 

employee misconduct.150 Federal agencies may also develop supplemental standards of conduct tailored 

to their individual requirements. These standards generally reflect heightened stringency relevant to the 

unique nature of their work. Further, although some agencies have established a table of penalties to identify

148 Id. at pp. 1–4 and U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, Washington, DC, September 2008, 

pp. ii–iv.

149 U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, Washington, DC, September 2008.

150 More information can be found at 5 U.S.C. § 7513(b)(1) and 5 C.F.R. § 752.604(d).
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offenses that will likely result in discipline, agencies are not required to specify all of the possible forms of 

prohibited conduct. MSP 4 sets a common sense standard and expects Federal employees to exercise sound 

judgment regarding their actions and not be dependent upon their agencies to constantly discern right from 

wrong for them. The MSPs are good government principles so all of government, not just management, 

should adhere to them. For employees, supporting the MSPs should be part of fulfilling their obligations to 

their employers and the taxpaying public.

Federal Employee Perspective

Likely reflecting the high ideals upheld as a pre-condition of Federal employment, 2010 MPS respondents 

expressed confidence in their organizations holding employees to high standards of conduct (64 percent 

agreed). Similarly, 60 percent agreed that their organization puts the public interest first.

Findings and Recommendations Related to MSP 4

MSPB studies have addressed the expectation that agencies should maintain high standards of integrity, 

conduct, and concern for the public interest through: 

1. Hiring employees who meet and maintain high standards of integrity;

2. Effectively managing employees who demonstrate conduct issues (to be discussed under 

MSP 6), and 

3. Encouraging employees to report wrongdoing that they observe (which will be covered under 

MSP 9).

How to Avoid Hiring Employees with Conduct Issues

As part of a careful assessment process as outlined in MSP 1, hiring officials should conduct reference 

checks prior to making a selection decision.151 Beyond improving the quality of hiring decisions, conducting 

reference checks can also help maintain the public’s trust by asking references to answer questions about the 

applicant that the applicant may not be able or willing to answer accurately.152 Although some references may 

be reluctant to provide negative feedback regarding an applicant, a skillful interviewer should strive to build 

rapport and convince the reference to provide information that would help determine whether the applicant 

would be an appropriate match to the position to be filled.

Reference checks are widely used in the public and private sectors153 and are legally defensible as long as they 

meet certain criteria, such as:

▪ Focused on specific, job-related information;

151 U.S. Merit System Protection Board, Reference Checking in Federal Hiring: Making the Call, Washington, DC, September 2005.

152 Id. at pp. 21–23. 

153 Id. at pp. 5–6. 
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▪ Based on experience observing or working with the job applicant;

▪ Applied fairly across all applicants in conformance with professional assessment requirements; 

and

▪ Used as part of the hiring process to complement other assessments.154

Despite the benefits of conducting a well-designed reference check, it is important to note that the authors 

of the CSRA were concerned about the potential misuse of information, such as from references, that could 

be used to help or hinder an applicant. In fact, PPP 2 prohibits consideration of any input regarding a person 

under consideration for any personnel action unless it is based on “an evaluation of the work performance, 

ability, aptitude, or general qualifications” or “an evaluation of the character, loyalty, or suitability” of the 

individual.155 Fortunately, these exceptions to the PPP define precisely the types of issues that can and should 

be probed through standardized questions as part of a structured reference interview.156

However, those conducting reference checks may occasionally encounter situations where the reference 

may be bound by a “clean record” agreement157 to provide only favorable information about the employee 

or to provide only minimal information, such as the dates of employment.158 This may occur for a variety 

of reasons, including when an employer, who wants to expedite the separation process, has agreed to a 

clean record settlement agreement so the employee will voluntarily resign instead of appealing a removal. 

However, it can create a challenge for the next potential employer who may have a difficult time getting 

an accurate reference. As a result, this may threaten the public interest, if Federal agencies hire employees 

without knowledge of problems that may repeat under similar circumstances. Therefore, agencies should 

use clean record agreements “judiciously, in an effort to avoid making a low-performing employee another 

agency’s problem”159 while hiring agencies need to be alert for any warning flags that may indicate that the 

former employer is not divulging relevant information.160 Although employees in these situations may learn 

from their mistakes and excel in other jobs where their skills are a better match, agencies should consider not 

only the benefit to their organization to quickly sever ties with the employee, but also the potential cost to a 

subsequent Federal employer.

MSPB reports related to avoiding the hiring of employees with conduct issues include:

▪ Reference Checking in Federal Hiring: Making the Call (2005)

▪ Clean Record Settlement Agreements and the Law (2013)

154 Id. at pp. 1–3. Additional recommendations for best practices in reference checking are provided on pp. 25–36. 

155 5 U.S.C. § 2302(b)(2).

156 U.S. Merit System Protection Board, Reference Checking in Federal Hiring: Making the Call, Washington, DC, September 2005, pp. 6–7. 

157 U.S. Merit Systems Protection Board, Clean Record Settlement Agreements and the Law, Washington, DC, December 2013, p. 1. As explained, 

an agency and a current or former employee may enter into a clean record settlement agreement, under which “the agency is obligated to 

change, remove, or withhold potential negative information about an individual in exchange for the resolution of employment-related claims 

against the agency.”

158 Id. and U.S. Merit System Protection Board, Reference Checking in Federal Hiring: Making the Call, Washington, DC, September 2005, 

pp. 19–20.

159 U.S. Government Accountability Office, Improved Supervision and Better Use of Probationary Periods Are Needed to Address Substandard Employee 

Performance, GAO-15-191, Washington, DC, February 9, 2015, p. 7.

160 U.S. Merit Systems Protection Board, Clean Record Settlement Agreements and the Law, Washington, DC, December 2013, p. 19.
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Responding Appropriately to a Failure to Meet the Federal Government’s High Standards

As another tool to ensure that recent hires meet the Federal Government’s high standards of integrity, 

conduct, and concern for the public trust, agencies should effectively utilize the probationary period to 

assess new employees and decide whether or not to retain them. MSPB reports have addressed the need 

for supervisors to be attentive to this time frame and take appropriate action in a timely manner when the 

employees should not attain full career status (and the rights that accompany the successful completion 

of the probationary period).161 Agencies should encourage supervisors to terminate employees who fail to 

demonstrate the appropriate level of performance and conduct during the initial probationary period. MSPB 

research indicates that significant numbers of supervisors do not terminate probationers—even though 

they would not choose to hire the person again.162 Instead of missing the opportunity to easily separate a 

probationer who is a poor fit, supervisors should take the appropriate action when a probationer fails to 

meet the minimum standards during the probationary period.

In other situations, agencies cannot afford to take time to consider their options and need to act immediately 

to remove employees who harm (or threaten to harm) others in the workplace, as required by multiple 

laws and regulations.163 MSPB research has found that current or former employees were the most 

common perpetrators of violence in the workplace.164 Therefore, while agencies should remain alert to 

potential external threats, they also need to take proactive steps to reduce the likelihood of internal threats. 

Fundamental strategies to help Federal agencies create safe work environments and protect employees from 

attacks by current or former employees were summarized in a 2012 MSPB report, Employee Perceptions of 

Federal Workplace Violence.

165 These include:

1. Foster a respectful organizational culture that does not tolerate aggressive or violent 

behaviors; 

2. Complete appropriate assessments of potential employees, including pre-employment 

background checks; 

3. Train employees on how to prevent workplace violence, with particular attention to teaching 

supervisors conflict resolution skills; 

4. Respond in a timely and consistent manner to manage serious workplace conflicts before they 

escalate into violence; and 

5. Facilitate the fair and effective management of the workforce to avoid unnecessary stress in the 

workplace.

161 U.S. Merit Systems Protection Board, The Probationary Period: A Critical Assessment Opportunity, Washington, DC, August 2005 and U.S. 

Merit Systems Protection Board, The Navigating the Probationary Period After Van Wersch and McCormick, Washington, DC, September 2006.

162 U.S. Merit Systems Protection Board, The Probationary Period: A Critical Assessment Opportunity, Washington, DC, August 2005, pp. 7–8. 

163 U.S. Merit Systems Protection Board, Employee Perceptions of Federal Workplace Violence, Washington, DC, September 2012, pp. 13–16.

164 Id. at p. 18.

165 Id. at pp. 43–53.
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MSPB reports that address how to handle conduct issues include: 

▪ Clean Record Settlement Agreements and the Law (2013)

▪ The Probationary Period: A Critical Assessment Opportunity (2005)

▪ The Navigating the Probationary Period After Van Wersch and McCormick (2006)

▪ Employee Perceptions of Federal Workplace Violence (2012)

While agencies hope to prevent problems by hiring employees who epitomize the integrity needed as a 

representative of the Federal Government, agencies also need to be vigilant to ensure that their employees 

(at all levels) are acting in accord with these high expectations. (Addressing employee conduct issues will 

be discussed further under MSP 6.) They also need to be cognizant of the fact that certain employees who 

draw attention to the failings of their agencies, often through the actions of higher level managers, should be 

protected and encouraged to report their concerns. (This will be discussed more under MSP 8.)

Lessons Learned from Case Examples

Hiring - Illustration from Case Law: Merino v. Department of Justice

History. The appellant applied for a Border Patrol Agent (Trainee) position with the Immigration and 

Naturalization Service (INS). On the basis of a background investigation, the agency determined that 

he was unsuitable for employment because of “criminal or dishonest conduct related to the duties to be 

assigned to the applicant or appointee” and “intentional false statement or deception or fraud in examination 

or appointment.”166 He filed an appeal with MSPB on the grounds that he had matured beyond the 

“indiscretions of his youth,” which he had admitted to both OPM and the Department of Justice.167

Holding and consequences. The MSPB administrative judge’s initial decision ordered the agency to cancel its 

suitability determination and consider the applicant for Federal employment because the administrative 

judge found the appellant to be “motivated and committed to continuing his efforts to rehabilitate 

himself.”168 However, in responding to the agency’s petition for review, the Board reversed the initial 

decision upon finding that the agency had proven its case on the first charge. Further, given the role of 

Border Patrol Agents in keeping drugs from being illegally imported, the applicant’s past conduct prevented 

him from being suitable for employment in this job.169

Implications for practice. In making a suitability determination, agencies may consider whether the applicant’s 

past conduct would undermine the efficiency or effectiveness of the agency. Therefore, factors that may be 

considered include: the nature of the position, including the mission and responsibilities of the agency; the 

nature and seriousness of the conduct; the circumstances surrounding the conduct; the recency of the 

166 Merino v. Department of Justice, 94 M.S.P.R. 632, ¶ 2 (2003).

167 Id. at ¶ 3.

168 Id. at ¶ 4.

169 Id. at ¶¶ 9–15.
“The Federal work force should be used efficiently and effectively.”

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conduct; the age of the person at the time of conduct; contributing societal conditions; and the absence or 

presence of rehabilitation.170

Responding Appropriately to a Failure to Meet the Federal Government’s High Standards – Illustration 

from Case Law: Martin v. Department of Transportation

History. The agency demoted the appellant from a supervisory position to a nonsupervisory position based 

on charges that he “misused government resources, interfered with an official investigation, and made false 

statements during an official investigation.”171 Specifically, he frequently conducted non work-related Internet 

searches while on duty and accessed nude and sexually explicit images. He filed an appeal with MSPB, 

claiming that others could have used his computer or that the images on his computer were not the result of 

intentional searches.

Holding and consequences. The MSPB administrative judge ruled that the agency had proven the first charge 

by preponderant evidence, but not the remaining charges. Therefore, the administrative judge reduced the 

penalty to a thirty day suspension. The agency filed a petition for review with the Board, which found the 

agency’s decision to demote the appellant to be reasonable, particularly given that he was a supervisor, and 

could therefore be held to a higher standard of conduct because supervisors occupy positions of greater trust 

and responsibility.

Implications for practice. Federal employees must maintain high standards of integrity and conduct in their 

past and present behavior to maintain the public’s trust. Other factors, such as supervisory status or nature 

of responsibilities, may further heighten the standards to which individuals are held. Agencies have the 

discretion to bar applicants from further consideration, remove employees from employment, or take 

disciplinary or adverse actions to address misconduct.

MSP 5: Utilization

Explanation and Intent of MSP 5

Given that much of the impetus driving the CSRA related to the inappropriate hiring of those with political 

connections and difficulty in removing employees who were not contributing to the efficient and effective 

functioning of the Federal Government, this MSP is central to the CSRA. MSP 5 sought to ensure that the 

personnel rules of the Federal Government would be impartially administered so hiring and firing would be 

based on merit and enable the workforce to be flexibly managed.172

As usual, MSP 5 requires a balance between the needs of the organization to act efficiently and effectively 

and its obligations to Federal employees. For example, during a furlough, Federal agencies are typically

170 5 C.F.R. § 731.202(c).

171 Martin v. Department of Transportation, 2006 MSPB 245, ¶ 2 (2006), aff’d, 224 F. App’x 974 (Fed. Cir. 2007).

172 U.S. Rep. No. 95-969, at 4 (1978), as reprinted in Committee on Post Office and Civil Service House of Representatives, 96th Cong., 

Legislative History of the Civil Service Reform Act of 1978 (CSRA), at 1468 (1978).
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required to give employees thirty days advance written notice with an opportunity to reply before being 

furloughed.173 However, 5 C.F.R. Part 752.404(d)(2) authorizes immediate furloughs under emergency 

situations, such as when Congressional funding of Federal agencies expires.

One additional such circumstance involves seasonal employees, which are hired with the express purpose of 

providing agencies with more flexibility to size their workforce in accord with fluctuating workloads. Since 

they are appointed during periods of higher workloads as temporary workers, they may be placed in a 

nonduty, nonpay status without the thirty day advance written notice corresponding to the terms of their 

employment.174

Federal Employee Perspective

MSP 5 delves into the efficient and effective management of the Federal workforce and represents an 

area full of debate regarding how to best achieve the goals of efficiency and effectiveness. From a global 

perspective, opinion is clearly divided as only 42 percent agreed their organization uses the workforce 

efficiently and effectively.175 Respondents seemed most dissatisfied with their organization’s ability or 

willingness to eliminate unnecessary functions and positions as slightly less than 30 percent agreed that they 

did this. However, most employees were also lacking confidence in their organizations in terms of positive 

actions such as focusing on important priorities (48 percent) and making good use of employees’ skills and 

talents (45 percent).

Findings and Recommendations Related to MSP 5

The goal of managing Federal employees efficiently and effectively relies upon accomplishing other MSPs 

well. For example, employees must be treated fairly in all aspects of their employment (MSP 2), such as 

during recruitment, selection and advancement (MSP 1), through pay and performance recognition 

(MSP 3), when employees are held accountable for conduct (MSP 4) and performance (MSP 6), during 

training (MSP 7), and to protect them from other biased treatment due to political affiliation or favoritism 

(MSP 8) or due to their whistleblowing activity (MSP 9). As a result, MSP 5 requires supervisors who are 

willing and able to actively uphold all of the MSPs.

Selection and Training of Supervisors

This has become a greater challenge as the nature of Federal work has evolved and growing numbers of 

Federal supervisors have become eligible for retirement.176 However, agencies should take advantage of the 

opportunity to conduct succession planning and prepare to select and train an effective and diverse group 

of supervisors to replace those who are leaving.177 For example, rather than selecting supervisors primarily 

based on technical expertise, agencies should recognize the criticality of supervisory competencies, such 

173 5 U.S.C. § 7513(b).

174 National Treasury Employees Union v. Devine, 10 M.S.P.R. 194, 198 (1982).

175 U.S. Merit Systems Protection Board, 2010 Merit Principles Survey. 

176 U.S. Merit Systems Protection Board, As Supervisors Retire: An Opportunity to Reshape Organizations, Washington, DC, October 2009, p. 5 

and pp. 11–13.

177 Id. at pp. 11–14.
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as interpersonal and oral communication skills, conflict management, and the ability to manage employee 

performance, since these facilitate the efficiency and effectiveness of the workforce.178 The recruitment 

and assessment process should be designed to reinforce the necessity of the supervisory (non-technical) 

competencies to ensure the selectee will be capable of demonstrating these capabilities, with additional 

training and development opportunities to further prepare the individual to succeed in the supervisory 

role.179 Importantly, if the new supervisor is not successful during the probationary period, the agency should 

utilize the critical last step of the assessment process and remove the person from this role.180

MSPB reports which provide recommendations regarding the selection and training of supervisors include:

▪ As Supervisors Retire: An Opportunity to Reshape Organizations (2009)

▪ A Call to Action: Improving First-Level Supervision of Federal Employees (2010)

Facilitating Employee Engagement to Improve Organizational Outcomes

Given the influence of supervisors on the workforce, effective supervision positively impacts organizational 

performance.181 For example, MSPB research has shown that supervisors can facilitate employee 

engagement, which results in a “heightened connection to their work, their organization, or the people they 

work for or with that causes them to produce better results for the organization.” In other words, as a result 

of greater employee satisfaction and commitment, engaged employees demonstrate greater discretionary 

effort and are less likely to demonstrate negative actions.182 The 2008 MSPB report The Power of Federal 

Employee Engagement explored the role of supervisors in engaging employees and the subsequent impact on 

organizational outcomes. At the highest level, this report recommended that agencies do the following to 

facilitate employee engagement:183

▪ Recruit and hire employees who are an excellent match to the organization and the job;

▪ Show employees they are valued from the first day on the job;

▪ Inspire employee commitment;

▪ Communicate vision and commitment about how the agency will accomplish the 

mission;

▪ Ensure that employees know how important their work is to the mission; 

▪ Manage employee performance by providing appropriate guidance and feedback; 

▪ Mentor employees to help them define their role in the organization;

178 Id. at pp. 18–19.

179 Id. at pp. 8–27 and pp. 33–48.

180 Id. at pp. 25–29.

181 U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, Washington, DC, September 2008, pp. 3–4 and 27–35.

182 Id. at p. 2. 

183 Id. at pp. iv–v.
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▪ Evaluate employees against competencies throughout their career to facilitate their 

contributions and development; and

▪ Measure employee engagement and work to increase engagement and therefore organizational 

outcomes.

Other workforce management initiatives may also impact employee engagement, as well as efficiency and 

effectiveness. For example, telework serves as an example of a specific initiative that can be used to enhance 

employees’ commitment to the organization by allowing them greater flexibility, while also helping to 

meet the organization’s goals.184 MSPB examined the benefits and concerns related to telework programs 

and provided guidance regarding the infrastructure needed to support telework. For example, supervisors 

need to identify and address any concerns about telework prior to implementation, ensure fair treatment of 

teleworkers and those who do not telework, and have effective performance management skills, which can 

be critical to the success of telework programs.185

MSPB has also examined the ability of management’s actions to impact employee engagement and 

organizational outcomes through reports such as:

▪ The Power of Federal Employee Engagement (2008)

▪ Managing for Engagement—Communication, Connection, and Courage (2009)

▪ Federal Employee Engagement: The Motivating Potential of Job Characteristics and Rewards (2012)

▪ Telework: Weighing the Information, Determining an Appropriate Approach (2011)

Managing Staffing Levels. An agency level perspective on the effective and efficient utilization of the workforce 

also includes having the appropriate level of staffing and being able to manage this is in accord with funding 

levels. Although the MSPB’s adjudicatory function received a large volume of appeals (over 32,000) related 

to furloughs in 2013,186 the studies function has not recently broached this topic. Similarly, the last report 

related to reduction-in-force, Reduction-in-Force in the Federal Government, 1981: What Happened and Opportunities for 

Improvement, was published in 1983.

184 U.S. Merit Systems Protection Board, Telework: Weighing the Information, Determining an Appropriate Approach, Washington, DC, October 2011.

185 U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, Washington, DC, September 2008, p. iv.

186 U.S. Merit Systems Protection Board, Annual Report for FY 2014, Washington, DC, May 29, 2015, p. 9.
“Employees should be retained on the basis of the adequacy of their performance, inadequate 

performance should be corrected, and employees should be separated who cannot or will not improve 

their performance to meet required standards.” 

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Lessons Learned from Case Examples

Managing Staffing Levels – Illustration from Case Law: Chandler v. Department of the Treasury

History. The appellant appealed the agency’s decision to furlough her for five to seven days as a result of the 

Sequestration Order requiring reductions in Federal spending.187 As part of the appeal, the appellant also 

requested substantial information from the agency regarding how and why the furlough decisions were 

made.188

Holding and consequences. In response to the interlocutory appeal, the Board found that the agency’s furlough 

did meet the requirement “to promote the efficiency of the service”189 and denied most of the appellant’s 

discovery requests as exceeding what the agency was required to do to demonstrate this fact. The Board 

found that the agency should provide information regarding payment of overtime and bonuses, the identity 

of those who were not furloughed, as well as the information regarding the processes that guided the 

furlough, including the Executive Order that directed the IRS to conduct the furlough.190

Implications for practice. The Board has found that an agency can use non-disciplinary furloughs as a means 

to promote the efficiency of the service when the furlough is “a reasonable management solution to the 

financial restrictions placed on it and the agency applied its determination to furlough employees”191 in an 

equitable manner. While this means that the agency “is required to treat similar employees similarly and to 

justify any deviations with legitimate management reasons,”192 these decisions remain at the discretion of the 

agency and are not subject to review by the Board to determine how the agency should have conducted the 

furlough.193

MSP 6: Retention

Explanation and Intent of MSP 6

One of the primary problems the CSRA was intended to address was the presumed difficulty removing 

poor performers. Many people felt that the accumulation of regulations and judicial rulings designed to 

protect employee rights had resulted in managers being unable to take appropriate corrective action.

187 Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶¶ 2–4 (2013).

188 U.S. Merit Systems Protection Board, Annual Report for FY 2013, May 30, 2014, p. 22.

189 5 U.S.C. § 7513(a).

190 Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶¶ 19–31 (2013).

191 Id. at ¶ 8. See also Clark v. Office of Personnel Management, 24 M.S.P.R. 224, 225 (1984).

192 Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8, (2013).

193 Id. at ¶¶ 8–9.
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To provide supervisors with additional tools for addressing poor performers, the CSRA supplemented the 

existing Chapter 75 (“Adverse Actions”) of Title 5, United States Code, by adding a new Chapter 43 titled 

“Performance Appraisal.” New standards were authorized for evaluating performance with sanctions of 

removal or demotion for unacceptable performance.194 While Chapter 75 required agencies to establish that 

the removal or demotion action was supported by “preponderant” evidence, Chapter 43 actions were given 

the lower standard of “substantial” evidence. However, in accordance with constitutional due process 

requirements, both Chapters 43 and 75 included provisions for procedural rights and the right to appeal 

the action to a neutral third party—the U.S. Merit Systems Protection Board.195 Therefore, agencies should 

ensure that all of the mandatory steps of the disciplinary process are carefully completed and documented—

after deciding whether Chapter 43 or 75 would be most appropriate, considering the level of burden, as well 

as the procedural requirements. While Chapter 75 provides for removal or demotion after demonstrating 

unacceptable performance by “preponderant” evidence, under Chapter 43, the decision of the agency to 

remove or demote the employee shall be sustained if supported by “substantial” evidence. However, Chapter 

43 requires that the employee be provided an opportunity to demonstrate acceptable performance prior to 

being demoted or removed, but no mitigation of the penalty is allowed.196

Under Chapter 43 or 75, the removal or demotion may not be sustained if the employee demonstrates a 

harmful error in the application of the agency’s procedures in arriving at its decision, shows that the decision 

was based on a PPP, or establishes that it was not in accordance with law.197 Additionally, the Board may 

review the denial of a within grade increase based on an agency’s finding that an employee failed to perform 

at an acceptable level of competence under a Chapter 43 performance appraisal system.198

Federal Employee Perspective

On the 2010 MPS, Federal employees expressed the most skepticism regarding their organizations’ ability to 

manage employee performance. Of all of the MSP-related items that were included on the 2010 MPS, this 

item was most frequently considered to be a weakness in maintaining the merit systems as only one in four 

respondents (24 percent) agreed that management addresses poor performers effectively. In comparison, 

41 percent agreed their agency retains its best performers.

Findings and Recommendations Related to MSP 6

Although the CSRA was intended to provide more options and support for taking performance-based 

actions, frustration remains among supervisors who wish to take corrective action toward poor performers, 

but fear they will not be supported within their agencies for doing so.199

194 5 U.S.C. §§ 4301–4308.

195 U.S. Merit Systems Protection Board, What is Due Process in Federal Civil Service Employment?, Washington, DC, May 2015.

196 In contrast, Chapter 75 does not require a performance improvement plan prior to taking corrective action. For more information 

regarding the differences between Chapter 43 and Chapter 75 for performance-based actions, see U.S. Merit Systems Protection Board, 

Addressing Poor Performers and the Law, Washington, DC, September 2009.

197 5 U.S.C. § 7701.

198 5 C.F.R. §§ 531.410(d), 531.409(b).

199 U.S. Merit Systems Protection Board, Addressing Poor Performers and the Law, Washington, DC, September 2009.
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Options for Remedying Poor Performance

The CSRA created Chapter 43 of Title 5 with the intention of making it easier for agencies to demote and 

remove poor performers by providing a lower standard of proof than for actions taken under Chapter 

75. For example, as established by Chapter 43, an agency can reduce in grade or remove an employee for 

receiving a rating of “unacceptable” with respect to even a single “critical element” if it follows these steps:200

1. Set up an OPM-approved performance appraisal system; 

2. Communicate to the employee his/her written performance standards and “critical elements” 

of the position; 

3. Warn the employee of inadequacies in their performance of “critical elements” during the 

appraisal period;

4. Counsel the employee, and 

5. Provide a reasonable opportunity for improvement after proper notice.

However, the intended result of providing Chapter 43 as an easier alternative was not fully realized, as 

agencies continue to use Chapter 75 in a majority of cases.201 Therefore, agencies should carefully consider 

the circumstances associated with a poor performer and evaluate the relative merits of using Chapter 43 or 

Chapter 75.202 Although Chapter 75 may prove more appropriate in certain situations (e.g., the agency does 

not have to offer an opportunity to improve nor have the concurrence of an official above the deciding 

official), Chapter 43 offers other advantages, notably the lower standard for proof.203

MSPB has published reports to educate managers regarding how to remedy poor performance:

▪ Addressing Poor Performers and the Law (2009)

▪ What is Due Process in Federal Civil Service Employment? (2015)

Due Process Requirements

A 2015 MSPB report, What is Due Process in Federal Civil Service Employment?, provides an overview of the 

history and reasoning behind the current civil service laws for adverse action, as well as protections offered 

by due process requirements. This report also discusses the two key components of due process: (1) the 

opportunity prior to removal to understand the charges and offer a defense and (2) the right to appeal a 

removal decision before an impartial third party.

200 Lovshin v. Department of the Navy, F.2d 826 (Fed. Cir. 1985).

201 U.S. Merit Systems Protection Board, What is Due Process in Federal Civil Service Employment?, Washington, DC, May 2015.

202 The procedural requirements associated with managing and/or removing a poor performer under Chapter 43 and Chapter 75 are 

discussed in detail in the September 2009 MSPB report, Addressing Poor Performers and the Law. Chapter 43 and Chapter 75 are compared in 

the Appendix of that report on pp. 33–34.

203 U.S. Merit Systems Protection Board, Addressing Poor Performers and the Law, Washington, DC, September 2009.
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Given that affording employees due process is essential to sustaining adverse actions, Federal agencies 

should be careful to provide employees with due process procedures in accord with relevant statutes and 

regulations.204 These include requirements such as:205

1. Ensure adequate notice of an intended adverse action; 

2. Provide the employee with a comprehensive list of charges;

3. Give the employee an opportunity to respond orally and in writing, and 

4. Issue a written decision containing a notification of appeal rights.

The Role of Performance Management

Effective management of performance—to include determining whether performance is adequate, and 

whether corrective action is needed—begins with adequate performance management practices. Agencies 

may encounter difficulties taking performance-based actions—not due to underlying problems with the 

law—but rather due to their failure to establish and adhere to appropriate performance management 

practices. To effectively and efficiently take performance-based actions, supervisors need to carefully create 

standards of performance and document how well employees are meeting those standards. For example, 

supervisors should: 206

▪ Communicate performance expectations through carefully developed performance 

standards;

▪ Work with each employee to define individual performance goals with specified outcomes and 

timelines;

▪ Meet regularly with employees to review their progress toward achieving their goals;

▪ Regularly review employees’ work;

▪ Provide frequent constructive feedback and coaching; 

▪ Provide recognition and other positive consequences for good work; and

▪ Take prompt corrective action when employees are not performing well.

By investing the necessary time and effort into the performance management process, supervisors will be 

better able to help employees improve their performance. And in the cases where employees cannot or will 

not improve, the supervisor will have prepared the groundwork for taking action to remove the employee in 

accord with the requirements of due process.207

204 5 U.S.C. § 4303.

205 U.S. Merit Systems Protection Board, Addressing Poor Performers and the Law, Washington, DC, September 2009.

206 U.S. Merit Systems Protection Board, Managing for Engagement—Communication, Connection, and Courage, Washington, DC, July 2009, p. 70.

207 U.S. Merit Systems Protection Board, What is Due Process in Federal Civil Service Employment?, Washington, DC, May 2015, pp. 28–31.
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MSPB guidance regarding effective performance management is included in the reports:

▪ Managing for Engagement—Communication, Connection, and Courage (2009) 

▪ What is Due Process in Federal Civil Service Employment? (2015)

Lessons Learned from Case Examples

Options for Remedying Poor Performance - Illustration from Case Law: Lovshin v. Navy

History. The appellant was removed from his position for alleged unsatisfactory performance. Upon initial 

appeal, the MSPB found the standards and procedures met the requirements of 5 U.S.C. Chapter 75.208

Instead of petitioning for review by the Board, the appellant appealed directly to the U.S. Court of Appeals 

for the Federal Circuit, asserting that his agency had not proved that his performance was unsatisfactory, 

among other issues of contention.209 Given a decision they had handed down in a similar case in the interim 

(Gende v. Department of Justice, 23 M.S.P.R. 604 (1984)),210 the Board sought for the U.S. Court of Appeals to 

remand the case back to the Board to decide.

Holding and consequences. The U.S. Court of Appeals for the Federal Circuit held that the removal action must 

be sustained because the establishment of Chapter 43 did not eliminate the option of using Chapter 75 to 

remove a poor performer. While Chapter 43 and Chapter 75 have different requirements, the agency met its 

obligations under Chapter 75 to use this procedure to remove the employee and did not have to also meet 

the requirements of Chapter 43. This decision disagreed with the Board’s ruling in Gende that Chapter 43 

was the only available procedure for taking performance-based actions after October 1, 1981.

Implications for practice. Agencies may choose between Chapter 43 and Chapter 75 for removals based on 

poor performance.211 Since Chapter 43 covers the evaluation of an employee’s work performance and 

subsequent remedial efforts and Chapter 75 focuses on removals and other disciplinary actions, both 

may be implemented to manage employee performance and take appropriate action if the employee’s 

performance does not improve to acceptable levels.212 Nevertheless, agencies must be mindful of meeting 

the requirements unique to each procedure and not commit any prohibited personnel practices.

Lessons Learned from Case Examples

The Role of Performance Management - Illustration from Case Law: Henderson v. National Aeronautics and 

Space Administration

History. The appellant was removed by his agency after his supervisor rated his performance as unacceptable 

in two critical elements and he failed to improve during a ninety day Performance Improvement Plan.

208 Lovshin v. Department of the Navy, 32 M.S.P.R. 393 (1987).

209 Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985).

210 In Gende, the Board held that Chapter 43 was the only procedure for removals based on performance.

211 Lovshin v. Department of the Navy, 767 F.2d 826, ¶¶ 4, 141–142 (Fed. Cir. 1985).

212 Id.
“Employees should be provided effective education and training in cases in which such education and 

training would result in better organizational and individual performance.”

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Holding and consequences. The appellant appealed his removal and the MSPB administrative judge found that 

the agency failed to prove that the appellant’s performance standards were valid since the performance 

plan had five ratings, but only stated what was required to “meet” the standard, rather than what would 

be required to avoid performance-based action (the “needs improvement” level vs. the “fails to meet” 

level).213 Additional information that had been provided to the employee via subsequent oral and written 

communication did not compensate for the inadequate performance standards. The agency appealed the 

reversal of the removal and the Board affirmed the initial opinion that the agency must cancel the removal 

action and restore the appellant’s employment status.

Implications for practice. An agency must give every employee a reasonable opportunity to demonstrate 

acceptable performance by providing valid performance standards at the commencement of the 

performance appraisal period. These standards must provide enough information so the employee 

understands what is required to avoid a performance based action that would occur at the “fails to meet” 

expectations level rather than simply stating what is needed to meet the standard—unless this requirement 

is not applicable because the system is two level (pass/fail) or three level with only one level of unsuccessful. 

Additionally, it is insufficient to try to remedy performance standards by communicating additional 

information after informing the employee of unacceptable performance.

MSP 7: Employee Training and Development

Explanation and Intent of MSP 7

By referencing training in the MSPs, Congress sought to better ensure that employees will receive adequate 

training in order to succeed in their jobs and therefore be retained. MSP 7 also communicates the dual goals 

of improving both individual and organizational performance through appropriate training and education 

of employees. MSP 7 was designed to ensure that employees receive the training they need to perform 

their jobs; that training plans are integrated into organizations’ overall strategic plans; and that funds are 

available to accomplish necessary training. Agencies have a responsibility to invest time and money into 

training and development opportunities to help their employees gain the skills needed to adapt and excel 

as their work environments and responsibilities become increasingly complex. Agencies need to maintain 

this commitment to employee development even during stringent budgets because an investment in 

employees can provide an excellent return on investment in terms of improved individual and organizational 

performance. Investing in training and development can also aid employee retention when employees feel 

they are valued and are motivated by the opportunity to enhance their knowledge and abilities.

213 U.S. Merit Systems Protection Board, Case Report for February 4, 2011, available at www.mspb.gov/netsearch/viewdocs.

aspx?docnumber=574181&version=575908&application=HTML, accessed February 11, 2016. See Henderson v. National Aeronautics and Space 

Administration, 116 M.S.P.R. 96 (2011). 
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Federal Employee Perspective

In response to the 2010 MPS, six out of ten Federal employees agreed that their organization provides 

employees with necessary training. However, just over half concurred that their organization met the higher 

standard of providing employees with opportunities for growth.

Findings and Recommendations Related to MSP 7

MSP 7 acknowledges that agencies have a responsibility to ensure employees receive the education and 

training needed to perform successfully. Agency spending that supports employee training and development 

represents an investment in employees, as well as their ability to better accomplish the organization’s 

mission.

Deciding Where to Invest Training Resources

In order to use their training resources most efficiently and effectively, agencies should take a strategic 

approach to identify which competencies are most needed now and in the future. They should also 

consider which training methods best suit different competencies, as well as the degree of trainability—

how easily a competency can be learned. Competencies can be categorized as highly trainable, moderately 

trainable, and less trainable competencies, and agencies should focus their training and development 

resources accordingly.214 Knowledge competencies tend to be highly trainable; Language (e.g., reading, 

writing, learning other languages), Social (e.g., getting along with others), and Reasoning (e.g., analysis) 

competencies are moderately trainable; while Motivation (e.g., willingness to perform work) and Mental 

Style (e.g., flexibility, conscientiousness, creativity) competencies are less trainable. For the less trainable 

competencies, agencies should focus more resources into the selection of applicants who already possess 

these competencies.

To foster the effectiveness of training and improve the efficiency of investing resources in training and 

development, supervisors should take the following steps:

1. Focus more time and resources on high quality career development planning to take into 

account current and future needs of the individual employees, the work team, as well as 

organizational needs.

2. Take a proactive and comprehensive view of training needs among the staff and consider the 

relative criticality of developing these competencies, taking into consideration how trainable 

they are.

3. Consider training prerequisites to ensure that employees are well-prepared to gain from the 

specific training being offered.

4. Review past training and evaluate how well the newly acquired knowledge and skills have 

transferred to the work environment. Consider testing employees before and after the training 

to be able to assess the return on investment.

214 U.S. Merit Systems Protection Board, Making the Right Connections: Targeting the Best Competencies for Training, Washington, DC, February 

2011. 
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5. Periodically discuss training needs with individual employees so they can provide input 

regarding their interests for career development and so they understand the rationale 

underlying the allocation of training opportunities. Include in the discussion a prioritization 

of competencies that need to be developed (ensuring that these competencies are amenable to 

training) and identify the best means to enhance these capabilities.

Given limitations on resources, supervisors should take trainability of critical competencies into account 

when planning for new hires or promotions of onboard staff. To use their resources most wisely, supervisors 

need to:

1. Assess the criticality and trainability of needed competencies.

2. Prioritize selecting for the most critical competencies that are low in trainability, followed 

by less critical competencies that are moderately trainable, with the least emphasis on other 

competencies that are less important and/or highly trainable.

3. Consult with HRM to identify the assessment tools that are most appropriate for each 

competency.

4. Given that candidates rarely have all of the desired competencies, use results of the assessment 

as input for determining how to prioritize training, focusing resources to address the most 

important needs that are likely to be ameliorated through training.

MSPB provided recommendations for the training and development of Federal employees in the report:

▪ Evaluating Job Applicants: The Role of Training and Experience in Hiring (2014)

Consideration of Training in the Assessment Process

Further, agencies should consider the quality and quantity of training provided to employees because this 

training may later be taken into account as part of the selection process if the training and experience 

(T & E) assessment method is used.215 Indeed, survey results show that this is very likely as 82 percent of 

survey respondents reported using level of education to a great or moderate extent. Although not focused 

solely on training, methods that assess T & E, such as resumes, occupational questionnaires, and educational 

records are among the most frequently used assessment instruments in Federal hiring. T & E assessment 

should give more weight to training that is high quality, relevant to the job to be filled, and positively impacts 

performance in a measurable way. Otherwise, counting irrelevant training that fails to improve performance 

undermines the validity of the assessment process.

MSPB also explored the consideration of training as part of the selection process in the report:

▪ Evaluating Job Applicants: The Role of Training and Experience in Hiring (2014)

215 U.S. Merit Systems Protection Board, Evaluating Job Applicants: The Role of Training and Experience in Hiring, Washington, DC, January 2014.
“Employees should be–

(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or 

affecting the result of an election or a nomination for election.”

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Training and Development for Senior Executives

Regarding specific employee populations, agencies should keep in mind that although senior executives 

have reached the highest levels of the organization, their training and development needs should not be 

overlooked. In fact, given the potential for their great influence over the organization as a result of their 

position, agencies should ensure that time and resources are devoted to ensuring their competence in these 

critical roles.216 Unfortunately, many career senior executives (30 percent) have unmet developmental needs 

and only half have completed an Executive Development Plan as required.217 Therefore, agency leaders need 

to encourage a culture supportive of continuous growth and development among senior executives, as well 

as employees.218

MSPB has addressed issues related to training and development of senior executives in the following report:

▪ Training and Development for the Senior Executive Service: A Necessary Investment (2015)

MSP 8: Neutrality

Explanation and Intent of MSP 8

5 U.S.C. § 2301(b)(8)(A) notes that Federal employees cannot be treated arbitrarily. In other words, in 

contrast to an “at-will” employment process through which employees can be readily terminated without 

cause, Federal employees have rights that prevent agencies from removing them before certain conditions 

are met. This is to prevent actions from being taken under the pretext of removal for cause, when that action 

is actually motivated by a desire to replace the employee with a personal friend or political crony. This serves 

to reinforce the concept, established in the Pendleton Act of 1883, that Federal civil servants should be 

selected and retained based on merit, and not as part of the “spoils” system.

5 U.S.C. § 2301(b)(8)(B) bars Federal employees from using their authority or office to influence 

nominations and elections. The prohibition of Subsection (B) is enforced primarily through the 1939 Act to 

Prevent Pernicious Political Activity, as amended, which is more commonly known as the “Hatch Act.” The 

Hatch Act, like MSP 8, prohibits Federal employees from using their “official authority or influence for 

216 U.S. Merit Systems Protection Board, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015, pp. i–ii. 

217 U.S. Office of Personnel Management, Senior Executive Service Survey 2011.

218 U.S. Merit Systems Protection Board, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015, pp. i–iv.
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the purpose of interfering with or affecting the result of an election.”219 Furthermore, Federal employees are 

prohibited from seeking nomination or running as a candidate for partisan political office.220

Federal Employee Perspective on MSP 8

According to Federal employees responding to the 2010 MPS, one of the biggest challenges for supervisors 

and managers is to refrain from demonstrating favoritism, which occurs when supervisors or managers 

base decisions regarding current or prospective employees on personal feelings and/or relationships and not 

on objective criteria, such as assessments of ability, knowledge, and skills. Only 28 percent stated that their 

organizations do not engage in favoritism.

In response to MSPB’s 2011 Federal Merit Systems Survey, nearly half of all employees (48 percent) agreed 

that favoritism is a problem in their organization. Many felt this impact directly as 28 percent of employees 

responded that their supervisor demonstrated favoritism, while 53 percent believed other supervisors in their 

organization showed favoritism toward some employees. Similarly, on MSPB’s 2007 Career Advancement 

Survey, employees were more likely to agree that promotions were driven by “who you know” (72 percent) 

rather than competence (39 percent) or hard work (36 percent).221 Additionally, 84 percent of employees 

who had applied but not been selected for a position within the last two years said that the selectee had 

been preselected.222 In other words, they believed that the competition was not “fair and open” because 

the selecting official had decided who to select in advance and regardless of the qualifications of the other 

applicants.

However, perceptions of favoritism were not limited to selections. Employees were most likely to believe 

that supervisors demonstrated favoritism through more informal means, such as social interactions 

(27 percent) and work assignments (26 percent). However, they also frequently perceived favoritism in 

awards (23 percent), performance appraisals (21 percent), advancement and promotion (21 percent), and 

acting supervisor opportunities (21 percent).

In a similar vein, employees have also expressed concern about nepotism,223 which occurs when a public 

official provides an advantage (e.g., selection, advancement) to a relative as defined in 5 U.S.C. § 3110. 

In response to the 2011 Federal Merit Systems Survey, 5 percent of employees said their supervisor has 

committed nepotism, compared with 27 percent of employees who said that a supervisor elsewhere in their 

organization had demonstrated nepotism.

Regarding politically motivated actions, half of the MPS 2010 respondents agreed that their organization 

protects employees from political coercion. Further, only 1 percent of Federal employees responded that 

they had experienced discrimination based on political affiliation within the past two years and less than 

219 5 U.S.C. § 7323(a)(1).

220 S U.S.C. § 7323(a)(3).

221 U.S. Merit Systems Protection Board, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, 

Washington, DC, December 2013, p. 57.

222 Id. at p. 8.

223 Id. at p. 9.
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1 percent reported that they had experienced coercion related to political activity in the preceding two 

years.224

Therefore, while Federal employees rarely perceive biases based on political affiliation, agencies and selecting 

officials still have substantial room for improvement to convince employees that the best qualified applicant 

will be selected for promotion or that employees will be treated fairly in any other decisions that their 

supervisor makes. Unless supervisors base their decisions on merit rather than social, familial or political 

connections and convince employees that their actions are not arbitrary or motivated by non-merit bases, 

employees will remain skeptical about whether their agencies are operating fully in accord with the merit 

system principles.

Findings and Recommendations Related to MSP 8

MSP 8 draws attention to some of the most common potential threats to basing actions on merit. Instead 

of basing decisions on the merit system principles, a supervisor might arbitrarily act to aid friends or political 

allies.

Preventing Partisan Political Actions

As mentioned earlier, a 2009 report Fair and Equitable Treatment: Progress Made and Challenges Remaining 

summarized survey findings indicating that employees generally believed that discrimination based on race, 

sex and age have decreased and that discrimination based on marital status, disability, religion and political 

affiliation have remained very low.225 Perceptions of political coercion have also remained low.226 However, 

given the criticality of zero tolerance for politically motivated discrimination or coercion of political activities 

within the Federal civil service, agencies should continue to ensure that employees (including political 

appointees) are aware of the limitations on their activities.227

MSPB has recently summarized Federal employee opinions regarding the occurrence of prohibited 

personnel practices related to partisan political actions in several reports:

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

▪ Prohibited Personnel Practices: Employee Perceptions (2011)

224 U.S. Merit Systems Protection Board, Prohibited Personnel Practices: Employee Perceptions, Washington, DC, August 2011, pp. 28–29.

225 U.S. Merit Systems Protection Board, Fair and Equitable Treatment: Progress Made and Challenges Remaining, Washington, DC, December 2009, 

pp. 53–54.

226 U.S. Merit Systems Protection Board, Prohibited Personnel Practices: Employee Perceptions, Washington, DC, August 2011, p. 29.

227 Id. at pp. 27–29.
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Avoiding Favoritism

MSPB research reveals that many Federal employees harbor concerns about whether supervisors base 

decisions on merit or favoritism.228 Agencies have a vested interest in reassuring employees that decisions are 

merit-based because actual or perceived favoritism can undermine employee satisfaction and engagement, 

as well as negatively impacting agency performance, such as through decreased employee effort, increased 

turnover, impaired teamwork, and the employment of less capable employees.229

To remedy employees’ suspicions of favoritism, agencies must first understand what is driving these 

perceptions. Possible explanations include the following:230

1. Intentional favoritism, where a supervisor provides an advantage to an applicant or employee 

based on a personal connection;

2. Unintentional favoritism, where a supervisor makes a flawed decision that conveys an unfair 

advantage based on a lack of guidance;

3. Misinterpretation by employees, when they mistakenly view a merit-based decision to be due 

to favoritism, perhaps due to lack of transparency or the presence of a legitimate professional 

relationship.

Information to educate and guide supervisors and/or observers may prevent misunderstandings such as 

those that arise from unintentional favoritism and misinterpretations by employees.231 However, intentional 

favoritism needs to be addressed by holding supervisors accountable for allowing favoritism to bias their 

decisions.232

To prevent favoritism (and other non-merit based factors) from impeding the Federal merit systems, 

agencies should take the following actions:233

▪ Select supervisors who are committed to supporting the MSPs and avoiding PPPs;

▪ Provide in-depth training to all supervisors at the time of hire and on a regularly recurring 

basis; 

▪ Hold supervisors accountable for adhering to the MSPs and avoiding PPPs; 

228U.S. Merit Systems Protection Board, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, 

Washington, DC, December 2013 and U.S. Merit Systems Protection Board, Fair and Equitable Treatment: Progress Made and Challenges 

Remaining, December 2009.

229 U.S. Merit Systems Protection Board, Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism, 

Washington, DC, December 2013, pp. 49–53.

230 Id. at pp. 31–36.

231 Id. at pp. 31–39.

232 Id. at pp. 32–33 and pp. 36–38.

233 Id. at pp. 57–58.
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▪ Follow best practices in the assessment process, such as: (1) identify key competencies through 

job analysis; (2) develop and implement valid and reliable assessments for critical competencies, 

and (3) ensure transparency by communicating to applicants the key competencies that will be 

measured and the assessment methods that will be used; and

▪ Encourage HRM staff to provide their expert advice and support them when they express 

concerns.

The bottom line is that selecting officials should be vigilant against being influenced by personal 

relationships or feelings of affinity (or any other biases), as opposed to focusing on job-related qualifications. 

However, as shown earlier in the discussion of training that agencies provide on the MSPs and PPPs, 

supervisors do not always have a full understanding of what they should and should not do. Even worse, 

some are aware of prohibitions against non-merit based decisions, and yet choose to proceed since they do 

not believe they will be held accountable.

MSPB has specifically examined the issue of favoritism in the reports:

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

Lessons Learned from Case Examples

Partisan Politics - Illustrations from Case Law: Special Counsel, Petitioner v. Mark234 and Special Counsel, 

Petitioner v. Briggs235

History. Both of these cases were brought before the Board by OSC as Hatch Act violations. In the first case, 

the appellant (Mark) forwarded one email to several co-workers soliciting political campaign donations. 

In the second case, the appellant (Briggs) was a candidate in a partisan election when he was hired by a 

Federal agency. His agency and the Office of Special Counsel repeatedly warned him, but he continued his 

candidacy.

Holding and consequences. In the first case, the Board held that the appellant did violate the Hatch Act. 

However, they stated that a variety of mitigating and aggravating factors should be considered to determine 

whether removal is the appropriate penalty. These include: (1) the nature of the offense and the extent of the 

employee’s participation; (2) the employee’s motive and intent; (3) whether the employee knew the activity 

was forbidden; (4) whether the employee continued the actions; (5) the employee’s past employment record, 

and (6) the extent of the political nature of the activity.236 Upon analyzing these factors, the Board decided 

that the limited nature of the activity (one email), which was sent to colleagues (not under his authority), 

234 Special Counsel v. Mark, 114 M.S.P.R. 516 (2010).

235 Special Counsel v. Briggs, 110 M.S.P.R. 6 (2008).

236 Special Counsel v. Mark, 114 M.S.P.R. 516, ¶ 8 (2010).
“Employees should be protected against reprisal for the lawful disclosure of information which the 

employees reasonably believe evidences—

(A) a violation of any law, rule, or regulation, or

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to 

public health or safety.”

What is whistleblowing?

Whistleblowing occurs when an employee has a reasonable belief of and makes a specific and detailed 

allegation of wrongdoing. Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), 

employees are protected when they make allegations of wrongdoing by disclosing a violation of law, rule 

or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a “substantial and 

specific danger” to public health or safety.

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and which he said he did not realize was a Hatch Act violation, did not warrant removal given his otherwise 

satisfactory performance record. Therefore, the Board reduced the penalty to a 120-day suspension. In 

contrast, in the second case, the Board found that the appellant violated the Hatch Act and failed to 

demonstrate that removal was not warranted.

Implications for practice. Agencies have a responsibility to ensure that all employees are aware of the Hatch Act 

and its restrictions on political activity by Federal employees. In the event that an employee does violate the 

Hatch Act, the agency should promptly notify the employee, orally and in writing, and report the violation 

to OSC.

MSP 9: Public Interest

Explanation and Intent of MSP 9

Federal employees who act as whistleblowers can greatly facilitate the efficiency and effectiveness of the 

Federal Government by reporting serious wrongdoing that involves breaking laws, wasting money or 

endangering the well-being of others.237However, if they are afraid to report it due to fear of reprisal, this 

has a chilling effect on their ability to surface their concerns.238 Therefore, MSP 9 establishes that Federal 

employees should be protected against reprisal when they disclose wrongful conduct.239

237 U.S. Merit Systems Protection Board, Whistleblower Protections for Federal Employees, Washington, DC, September 2010, pp 13–17 and 

U.S. Merit Systems Protection Board, Blowing the Whistle: Barrier to Federal Employees Making Disclosures, Washington, DC, November 2011, 

pp. 15–16.

238 U.S. Merit Systems Protection Board, Blowing the Whistle: Barrier to Federal Employees Making Disclosures, Washington, DC, November 2011, 

pp. 15–24.

239 For more information on filing an appeal based on retaliation for whistleblowing, please see www.mspb.gov/appeals/whistleblower.htm

for MSPB Questions and Answers About Whistleblower Appeals.
64 The MSPs: Guiding the Fair and Effective Management of the Fede

Overview of the Merit System 

As noted earlier, Federal employment originated in a system built upon hiring and removal based 

upon political loyalties. The Pendleton Act of 1883 shifted employment criteria to merit, but it did not 

address removals. Therefore, its provisions did nothing to ensure that removals were purely due to poor 

performance or conduct and to ensure that Federal whistleblowers would not be removed if they disclosed 

wrongdoing within their agencies. To address this need, in 1912, Congress enacted the Lloyd-LaFollette 

Act, which stated that removal actions must be for merit-based reasons and not inappropriate causes, which 

would include whistleblowing. In 1978, Congress enacted the CSRA, which included the establishment of 

the OSC. OSC has the responsibility to listen to complaints filed by alleged whistleblowers and seek redress 

on behalf of complainants who meet the legal definition of a whistleblower.240

Congress passed the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection 

Enhancement Act of 2012 (WPEA) to expand the circumstances under which a disclosure would 

constitute a protected activity. Additionally, Congress passed the Notification and Federal Employee 

Antidiscrimination and Retaliation Act of 2002 (the No FEAR Act) which requires agencies to provide 

annual notice to employees about their rights under the anti-discrimination and whistleblower laws, as well 

as training every two years.241 Therefore, the provisions of the CSRA, the WPA and the WPEA enhanced 

whistleblower appeal rights, while the No FEAR Act helps ensure that employees are aware of these rights.

Federal Employee Perspective

According to 2010 MPS data as shown earlier in Figure 2, slightly under half of Federal employees agreed 

that their organization protects employees against reprisal for exercising a grievance, complaint or appeal 

right (46 percent) or against reprisal for whistleblowing (45 percent). By comparison, when asked if they 

actually experienced retaliation for exercising a grievance, complaint or appeal right or for conducting 

whistleblower activity, analysis of other longitudinal survey items reveals a downward trend since 1992 of 

employees reporting that they actually experienced reprisal after taking one of those actions.242 In 2010, only 

3.9 percent of survey respondents said they experienced retaliation for exercising a grievance or appeal while 

3.2 percent said they experienced whistleblower retaliation.243 Although these percentages are small, any 

instances of retaliation remain a cause for concern so additional steps should be taken—not only to decrease 

the instances of retaliation—but also to reassure employees who might consider engaging in whistleblowing 

or exercising grievance or appeal rights. Further, it is worth noting that survey results have revealed that 

significant percentages of employees harbor concerns that reporting wrongdoing would negatively influence 

their future careers:, such as through their ability to get a promotion (31 percent), their performance 

appraisal (36 percent), or that they would be suspended, demoted or fired (37 percent).244

240 OSC was initially established as an office within the MSPB, but in 1989, OSC was made an independent agency and in 1994, 

whistleblowers were given the right to file retaliation complaints with MSPB if they were unable to get relief through OSC.

241 Notification and Federal Employee Antidiscrimination and Retaliation (No FEAR) Act, P.L. 107-174, Section 202.

242 U.S. Merit Systems Protection Board, Prohibited Personnel Practices: Employee Perceptions, Washington, DC, August 2011, p. 33. 

243 Id. at p. 33.

244 U.S. Merit Systems Protection Board, Blowing the Whistle: Barrier to Federal Employees Making Disclosures, Washington, DC, p. 17. 
A Report by the U.S. Merit Systems Protectio

Overview of the Merit System Pr

Findings and Recommendations Related to MSP 9

As mentioned above, Congress has taken incremental steps over the past thirty-five years to improve 

protections for whistleblowers and those who exercise grievance or appeal rights. In addition, they have 

implemented requirements to ensure that employees are aware of these rights. Nevertheless, there is still 

room for improvement to ensure that employees feel that they can safely raise concerns. 

Create a Culture Supportive of Exercising Rights

MSP 9 encourages Federal employees to report “a violation of any law, rule or regulation,” or gross 

“mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to 

public health or safety.”245 As a result of Federal employees identifying these significant problems, the agency 

leadership can take appropriate steps to better accomplish their mission and maintain the respect of their 

employees and the American public. However, given concerns that employees may have about the potential 

dangers to their careers if they do report problems, agencies must work to create cultures that are viewed as 

supportive of whistleblowers.246 To achieve this, agencies should:

▪ Encourage employees to speak to their supervisors and managers regarding potential 

wrongdoing without fear of suffering consequences, such a being punished or shunned.

▪ Demonstrate to employees that reports of wrongdoing will result in positive changes.

▪ Inform employees that they can report a reasonable suspicion of wrongdoing rather than 

requiring them to be certain.

▪ Provide training every two years to employees regarding whistleblower rights.247

▪ Provide the legally mandated annual notice of their rights.

▪ Ensure that potential whistleblowers know precisely what must be established in order to prevail 

on their claims, as any criteria found lacking will strip the MSPB of jurisdiction over an appeal 

of alleged retaliation.

MSPB has provided recommendations for agencies and employees regarding how to protect the rights of 

whistleblowers in reports such as:

▪ Blowing the Whistle: Barriers to Federal Employees Making Disclosures (2011)

▪ Whistleblower Protections for Federal Employees (2010)

245 5 U.S.C. § 2301(b)(9).

246 U.S. Merit Systems Protection Board, Blowing the Whistle: Barriers to Federal Employees Making Disclosures, Washington, DC, November 2011.

247 Id. MSPB survey data confirm that most agencies are taking the required steps to train employees regarding their whistleblower rights, 

although 25 percent of survey respondents indicated that they had not received this training.
66 The MSPs: Guiding the Fair and Effective Management of the Fede

Overview of the Merit System 

Lessons Learned from Case Examples

Create a Culture Supportive of Exercising Rights - Illustration from Case Law: Chambers v. Department of 

the Interior

History. The appellant, who was the Chief of the U.S. Park Police, expressed concerns regarding her 

organization’s need for additional resources and these statements were published in The Washington Post. 

The agency placed her on administrative leave and ultimately removed her on charges of misconduct for 

(1) disclosing budget information, (2) not following her supervisor’s instructions, and (3) not following the 

chain of command. She appealed the removal, which she attributed to retaliation for her disclosures of what 

she regarded as public safety dangers.248

Holding and consequences. This case continued over several years and multiple decisions by the Board and the 

U.S. Court of Appeals for the Federal Circuit.249 However, the end result was a holding that the appellant 

had made a protected disclosure and established by preponderant evidence that her protected disclosures 

were a contributing factor to her being placed on administrative leave and ultimately removed. The agency 

failed to prove with clear and convincing evidence that it would have taken the same actions if she had not 

made these protected disclosures. Therefore, the Board reversed the removal of the appellant for statements 

she made pertaining to safety and other issues.250

Implications for practice. The Whistleblower Protection Act (WPA) and the Whistleblower Protection 

Enhancement Act of 2012 (WPEA) prohibit any employee who has the authority to take, direct others 

to take, recommend, or approve any personnel action from taking, failing to take, or threatening to take 

or fail to take, any personnel action because of the disclosure of information by an employee or applicant 

for employment that the employee or applicant reasonably believes evidences, among other things, gross 

mismanagement or gross waste of funds.251 Therefore, agencies and employees must exercise caution 

when determining whether employees’ statements meet the criteria for protection under whistleblower 

protection laws. If they do, agencies should respond appropriately to this information and not retaliate 

against employees for reporting concerns. Ideally, agencies will create a supportive culture that proactively 

encourages employees to share their concerns with those who can address them to further the efficiency 

and effectiveness of the government. This will create a work environment that is more closely aligned 

with MSP 9.

248 U.S. Merit Systems Protection Board, Case Report for January 14, 2011. This case report summarizes the multiple decisions of the Board 

and the U.S. Court of Appeals for the Federal Circuit.

249 Id.

250 Chambers v. Department of the Interior, 116 M.S.P.R. 17, 71 (2011).

251 5 U.S.C. § 2302(b)(8).
A Report by the U.S. Merit Systems Protectio

Conclusions

According to MSPB surveys, most, but not all, Federal employees and supervisors respond that they are 

aware of the MSPs. However, the MSPs are so critical to the fair and effective management of the Federal 

workforce that agencies should strive for higher rates of awareness and greater depth of understanding, 

particularly among supervisors. No supervisor should exercise workforce management authority without 

full comprehension of the expectations inherent in the MSPs, as well as a commitment to uphold the MSPs 

and avoid committing PPPs.

Additionally, knowledge of the MSPs should go beyond basic familiarity and strive for a more thorough 

understanding, such as how the MSPs should influence decisions made by employees at all levels within the 

Federal workforce. To accomplish this, agencies should ensure that all employees receive information on 

the content, as well as applications of the MSPs and PPPs to the work environment. Unfortunately, results 

of our research indicate that many agencies have neglected to provide employees with adequate training on 

the MSPs and PPPs, in spite of requirements for supervisors to receive related training at a minimum of 

every three years, following their selection for this role. Further, given their influential roles and authority 

to impact large numbers of employees with their decisions, leaders (supervisors, managers and executives) 

should receive training on the MSPs that is tailored to their needs and agencies need to hold leaders 

accountable for acting in accord with the spirit and intent of the MSPs.

Results from MSPB surveys indicate that Federal employees perceive that some aspects of the MSPs have 

been widely achieved but others remain challenging. For example, more than half of Federal employees 

agreed that their organizations effectively combated discrimination, yet fewer than 30 percent felt their 

organizations addressed poor performers effectively or refrained from favoritism.

As long as members of the Federal workforce lack confidence that their organizations are fully 

implementing the MSPs, there exists a need for more attention to improving understanding of the MSPs by 

all employees—from the front line employees to the top level executives. We recognize that comprehensive 

and continuing education requires a commitment of time and resources. Nevertheless, because the MSPs 

were designed to improve outcomes for employees, agencies and the value to the taxpayers, we believe there 

is a clear business case—as well as a legal mandate—for providing this education. Ultimately, promoting the 

MSPs remains vital to achieving the full potential inherent within the Federal merit systems.

Conclusions an

Recommenda
68 The MSPs: Guiding the Fair and Effective Management of the Fede

Conclusions and Recomme

Recommendations

A variety of actions at various levels within agencies can improve the ability of the Federal Government 

to live up to the ideals of the MSPs and avoid the commission of PPPs. These recommendations address 

improving both the knowledge level of Federal employees regarding the MSPs and PPPs, as well as 

addressing the role that accountability can play for those who to disregard the responsibilities inherent in 

maintaining the MSPs and avoiding PPPs.

Key Recommendations for Agencies

To ensure a merit-based culture that promotes the MSPs and protects against PPPs, agencies must:

▪ Select supervisors who are knowledgeable of and committed to upholding the high expectations 

of the Federal merit systems.

▪ Provide in-depth training regarding the content and applications of the MSPs and PPPs (as well 

as the potential costs for not adhering to these expectations) to all supervisors at the time of 

hire and on a regularly recurring basis.

▪ Ensure that supervisors receive the required training at the time of selection and as needed 

in subsequent years (at a minimum frequency of every three years as legally mandated). 

Although the requirements do not specifically mention the MSPs and PPPs, to help supervisors 

adequately perform their duties, this training should cover not only the content of the MSPs 

and PPPs, but also the practical implications.

▪ Ensure that political appointees are well informed on the practical implications of the MSPs 

and PPPs and understand the criticality of demonstrating their full support of the Federal merit 

systems given their influential leadership role.

▪ Hold all supervisors, managers and executives accountable for adhering to the MSPs and 

avoiding PPPs.

▪ Ensure HRM employees have the expertise to correctly advise regarding the impact of the 

MSPs on all workforce management decisions.

▪ Educate employees regarding their rights and responsibilities according to the MSPs and PPPs 

and ensure that they are aware of the procedures for redress in the event they feel their rights 

have been violated.

▪ Understand the dual responsibility to employees and the public to manage the Federal 

workforce fairly and effectively.
A Report by the U.S. Merit Systems Protectio

Conclusions and Recomm

Key Recommendations for Supervisors

Supervisors directly manage the Federal workforce, therefore, each supervisor must:

▪ Fully appreciate the implications of each MSP and PPP to understand how their actions impact 

their agency’s embodiment of the merit systems.

▪ Ask for assistance from HRM staff or others with relevant expertise prior to taking an action 

that could be inconsistent with the MSPs or constitute a PPP.

▪ Work with HRM to understand the options available to achieve the desired merit-based goals 

and not request that HRM take actions that violate MSPs or result in PPPs.

Key Recommendations for Human Resources Management Staff

HRM employees play a critical role in helping agencies and managers promote the MSPs and avoid the 

commission of PPPs. To that end, they should:

▪ Provide expert advice on merit-based workforce management, including best practices for 

recruiting, hiring (including promoting), evaluating performance, determining awards, 

distributing work assignments and training and development opportunities, and administering 

discipline.

▪ Speak up when they observe a violation of a MSP or the commission of a PPP and for HRM 

supervisors, managers and executives to support HRM staff when they raise concerns regarding 

MSPs or PPPs.

Key Recommendations for Employees

Employees should take the following steps to manage their performance and careers:

▪ Learn more about the MSPs and the PPPs.

▪ Work with supervisors and colleagues to support the MSPs.

▪ When it appears that a MSP has been violated or a PPP committed, consider discussing the act 

with HRM or the EEO office or by filing a grievance, appeal or complaint.
70 The MSPs: Guiding the Fair and Effective Management of the Fede

Conclusions and Recomme
A Report by the U.S. Merit Systems Protectio

Appendix A. The Meri

Principles – 5 U.S.C. § 23

Federal personnel management should be implemented consistent with the following Merit System 

Principles: 

(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a 

work force from all segments of society, and selection and advancement should be determined solely on the 

basis of relative ability, knowledge and skills, after fair and open competition which assures that all receive 

equal opportunity.

(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects 

of personnel management without regard to political affiliation, race, color, religion, national origin, sex, 

marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional 

rights.

(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national 

and local rates paid by employers in the private sector, and appropriate incentives and recognition should be 

provided for excellence in performance.

(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.

(5) The Federal work force should be used efficiently and effectively.

(6) Employees should be retained on the basis of adequacy of their performance, inadequate performance 

should be corrected, and employees should be separated who cannot or will not improve their performance 

to meet required standards.

(7) Employees should be provided effective education and training in cases in which such education and 

training would result in better organizational and individual performance.

(8) Employees should be—

(A) protected against arbitrary action, personal favoritism, or coercion for partisan political 

purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or 

affecting the result of an election or a nomination for election.

(9) Employees should be protected against reprisal for the lawful disclosure of information which the 

employees reasonably believe evidences—

(A) a violation of any law, rule, or regulation, or 

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific 

danger to public health or safety.
72 The MSPs: Guiding the Fair and Effective Management of the Fede

Appendix A. The Merit System Principles – 5 U.S.
A Report by the U.S. Merit Systems Protectio

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, 

shall not, with respect to such authority— 

(1) discriminate for or against any employee or applicant for employment— 

(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the 

Civil Rights Act of 1964 (42 U.S.C. § 2000e–16); 

(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in 

Employment Act of 1967 (29 U.S.C. §§ 631, 633a); 

(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 

(29 U.S.C. § 206 (d)); 

(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation 

Act of 1973 (29 U.S.C. § 791); or 

(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or 

regulation; 

(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who 

requests or is under consideration for any personnel action unless such recommendation or statement is 

based on the personal knowledge or records of the person furnishing it and consists of— 

(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such 

individual; or 

(B) an evaluation of the character, loyalty, or suitability of such individual; 

(3) coerce the political activity of any person (including the providing of any political contribution or 

service), or take any action against any employee or applicant for employment as a reprisal for the refusal of 

any person to engage in such political activity; 

(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment; 

(5) influence any person to withdraw from competition for any position for the purpose of improving or 

injuring the prospects of any other person for employment; 

Appendix B. The Prohibited Pers

Practices–5 U.S.C. § 23
74 The MSPs: Guiding the Fair and Effective Management of the Fede

Appendix B. The Prohibited Personnel Practices - 5 U.S.C

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant 

for employment (including defining the scope or manner of competition or the requirements for any 

position) for the purpose of improving or injuring the prospects of any particular person for employment; 

(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or 

advancement, in or to a civilian position any individual who is a relative (as defined in section 3110 (a)(3) of 

this title) of such employee if such position is in the agency in which such employee is serving as a public 

official (as defined in section 3110 (a)(2) of this title) or over which such employee exercises jurisdiction or 

control as such an official; 

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or 

applicant for employment because of— 

(A) any disclosure of information by an employee or applicant which the employee or applicant 

reasonably believes evidences— 

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and 

specific danger to public health or safety, if such disclosure is not specifically prohibited by 

law and if such information is not specifically required by Executive order to be kept secret 

in the interest of national defense or the conduct of foreign affairs; or 

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another 

employee designated by the head of the agency to receive such disclosures, of information which the 

employee or applicant reasonably believes evidences— 

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and 

specific danger to public health or safety; 

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or 

applicant for employment because of— 

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation; 

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to 

in subparagraph (A); 

(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special 

Counsel, in accordance with applicable provisions of law; or 

(D) for refusing to obey an order that would require the individual to violate a law; 
A Report by the U.S. Merit Systems Protectio

Appendix B. The Prohibited Personnel Practices - 5 U.S

(10) discriminate for or against any employee or applicant for employment on the basis of conduct which 

does not adversely affect the performance of the employee or applicant or the performance of others; except 

that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or 

fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District 

of Columbia, or of the United States; 

(11) 

(A) knowingly take, recommend, or approve any personnel action if the taking of such action would 

violate a veterans’ preference requirement; or 

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such 

action would violate a veterans’ preference requirement; or 

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates 

any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in 

section 2301 of this title; or

(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement 

does not contain the following statement: “These provisions are consistent with and do not supersede, 

conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or 

Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting 

to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of 

funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other 

whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created 

by controlling Executive orders and statutory provisions are incorporated into this agreement and are 

controlling.”
76 The MSPs: Guiding the Fair and Effective Management of the Fede

Appendix B. The Prohibited Personnel Practices - 5 U.S.C
A Report by the U.S. Merit Systems Protectio

To obtain feedback regarding current agency training practices regarding the MSPs and PPPs, we 

distributed an agency questionnaire to the Chief Human Capital Officers (CHCOs) of the 26 departments 

and large independent agencies listed below. Given that practices may vary within departments by bureau, 

we gave the CHCOs discretion regarding the appropriate level of distribution within their organization. As a 

result, we received a total of 73 completed agency questionnaires.

Departments and Large Independent Agencies Completing the MSP Education Agency 

Questionnaire

Departments Independen

Department of Agriculture

Department of Commerce

Department of Defense

Department of Education

Department of Energy

Department of Health and Human Services

Department of Homeland Security

Department of Housing & Urban Development

Department of the Interior

Department of Justice

Department of Labor

Department of State

Department of Transportation

Department of the Treasury

Department of Veterans Affairs

Environmental Protection Agency

Equal Employment Opportunity Commission

Federal Deposit Insurance Corporation

General Services Administration

National Aeronautics and Space Administration

National Science Foundation

Nuclear Regulatory Commission

Office of Personnel Management

Small Business Administration

Social Security Administration

U.S. Agency for International Development

A replica of the agency questionnaire, formatted for printing, appears on the following pages.

Appendix C. Method for th

Education Agency Questio
78 The MSPs: Guiding the Fair and Effective Management of the Fede

Appendix C. Method for the MSP Education Agency 

MSPB Questionnaire for Federal Agencies

Merit System Principles Education

You have been asked to complete this questionnaire to support a study being conducted by the U.S. Merit 

Systems Protection Board (MSPB). Under 5 U.S.C. §§ 1204(a)(3), MSPB has the authority to study issues 

related to the civil service and issue reports of its findings to the President and the Congress. MSPB is 

authorized by 5 U.S.C. § 1204(e)(3) to obtain from agencies the information, reports, and records it deems 

necessary to the performance of this mission. 

To send us your survey responses, you have the options to—

1. Complete the survey in the fillable pdf, save your responses and return it electronically as an 

email attachment; or

2. Print out the survey, complete it on paper, and email a scanned copy of your responses; 

or 

3. Print out the survey, complete it on paper, and fax it.

Thank you for your assistance with this important project. If you would like to receive a copy of the report 

when it is completed, please send an email to studies@mspb.gov and request to be added to our mailing list.

Please provide the name, phone number and email address for the person who completed this 

questionnaire. We may follow up with you to ask additional questions.

Name: ______________________________________________________

Title: _______________________________________________________

Organization: _________________________________________________

What organization (e.g., Department, agency, bureau) does this cover?

Telephone: ___________________________________________________

Email: ______________________________________________________
A Report by the U.S. Merit Systems Protectio

Appendix C. Method for the MSP Education Agency Que

Merit System Principles Education

1. Does your agency provide instruction on the following topics to employees, new and experienced 

supervisors, and political appointees? Please mark your responses in the corresponding boxes using the 

following numbers:

1 = Yes, this training is provided to all in this group as part of a focused course on the topic

2 = Yes, this training is provided to all in this group as part of a broader course (e.g., introduction 

 to supervision)

3 = Yes, this training is provided to some in this group

0 = No, this training is not provided to anyone in this group

9 = Don’t know

Topic Employees New

Supervisors

Refresher Training 

for Supervisors

Political

Appointees

Overview of the Merit 

System Principles

Overview of the Prohibited 

Personnel Practices

Recruitment

Hiring

Preventing or Remedying 

Discrimination

Setting Pay

Awards and Recognition

Maintaining Standards of 

Conduct

Efficient and Effective 

Workforce Management

Managing Poor Performers

Protecting Employees 

Against Arbitrary Action, 

Favoritism, Political 

Coercion

Protecting Employees 

Against Reprisal for 

Whistleblowing or 

Exercising a Grievance, 

Complaint or Appeal Right
80 The MSPs: Guiding the Fair and Effective Management of the Fede

Appendix C. Method for the MSP Education Agency 

Questions 2–7 only apply to training provided for new supervisors. If your organization does not provide 

this training to new supervisors, then skip to Question 8.

2. When do new supervisors typically receive training on the Merit System Principles (MSPs) and 

Prohibited Personnel Practices (PPPs)?

□ After selection, but before assuming supervisory responsibilities

□ Within one week of becoming a supervisor

□ Within one month of becoming a supervisor

□ Within 1-3 months of becoming a supervisor

□ Within 4-6 months of becoming a supervisor

□ More than 6 months after becoming a supervisor

□ Not applicable, we don’t provide new supervisor training on the MSPs and PPPs

3. What is the total length of new supervisor training on the MSPs and PPPs?

□ Less than 1 hour 

□ 1-3 hours 

□ 4-8 hours

□ More than 1 day but less than 3 days 

□ More than 3 days

4. What percent of the training is on the MSPs? _____%

5. How is the MSP/PPP training for new supervisors provided? (Select all that apply.)

□ Via self-paced computer modules

□ Live presentation by a person through a webinar/video-based instruction

□ Live presentation by a person in a large group setting (classroom)

□ By a person on a one-to-one basis

□ Other: _____________________
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Appendix C. Method for the MSP Education Agency Que

6. Who provides the MSP/PPP training for new supervisors? (Select all that apply.)

□ Human Resources Management (HRM) Staff

□ Equal Employment Opportunity (EEO) Staff

□ Staff from within the new supervisor’s organization

□ Other: ___________________________

7. Do you conduct evaluations of the MSP/PPP training for new supervisors?

□ Yes

□ No

8. Is refresher training on the MSPs/PPPs provided to supervisors?

□ Yes If so, how frequently? ________________________ 

□ No

9. How well do you think the following groups understand the MSPs/PPPs?

(a) Career employees (nonsupervisory) Excellent Good Fair Poor

(b) New career supervisors Excellent Good Fair Poor

(c) Experienced supervisors/managers Excellent Good Fair Poor

(d) New non-career (political appointee) supervisors/executives

 Excellent Good Fair Poor

10. Do you have any additional comments or suggestions regarding training on the MSPs and PPs?
82 The MSPs: Guiding the Fair and Effective Management of the Fede

Appendix C. Method for the MSP Education Agency 
A Report by the U.S. Merit Systems Protectio

As mentioned earlier, the MSPs are not self-executing, which means they cannot serve as the basis for a 

corrective action.1 However, violations of MSPs may also involve the commission of PPPs. As a result, 

there exists a close correspondence between the MSPs and the PPPs as the PPPs clearly define actions that 

would undermine a merit system. Together, these MSPs and PPPs establish the vision for how the Federal 

workforce should be fairly and effectively managed and how Federal employees should view their rights 

and responsibilities. The general themes across the MSPs and PPPs relate to treating employees fairly in all 

aspects of their employment; protecting employees from harm, such as reprisal for the exercise of a legally 

protected right; and encouraging the efficiency of the Federal workforce.2

The tables below summarize the relationship between the MSPs and the PPPs. This demonstrates how the 

two complement each other to establish an ideal for how the workforce should be managed 

(generally through the MSPs), as well as to clarify what actions are clearly forbidden as PPPs. For example, 

while MSP 1 aims for a representative workforce that is selected based solely on merit, PPP 1 prohibits 

discrimination against employees or applicants and PPP 2 requires that any personnel decision be based on 

merit (as determined by “an evaluation of the work performance, ability, aptitude or general qualifications”). 

Similarly, PPP 10 prohibits discrimination against employees or applicants based on conduct not related to 

the job. Further, PPPs 4, 5, 6, and 7 outline common means through which officials might impede meritbased decisions.

MSP 2 notes that legally protected bases for discrimination such as “political affiliation, race, color, religion, 

national origin, sex, marital status, age, or handicapping condition” cannot be considered; neither should any 

factors that would compromise the employee’s “privacy and constitutional rights.” PPPs 1 and 10 provide 

comparable protections.

MSP 8 also remarks on the criticality of fairness—by protecting employees against partisan influence. In 

similar wording, PPP 3 prohibits the coercion of political activity or retribution against an employee for not 

engaging in partisan activity. MSP 8 also discourages “arbitrary action” and “personal favoritism” which 

corresponds to MSP 1’s expectation that personnel decisions be merit-based with selections made through 

“fair and open competition.” Also, PPP 10’s general protection against discrimination based on conduct that 

is not related to the job also echoes MSP 8’s protections.

MSP 3 notes the right to “equal pay for equal work” which frequently invokes a need to guard against 

paying employees differently based on their demographic characteristics (as noted in PPP 1) rather than their 

ability to perform the work. However, MSP 3 goes further to suggest that the Federal Government should 

also compensate employees fairly in reference to private sector, as well as to provide recognition and awards 

for excellent performance.

1 Pollard v. Office of Personnel Management, 52 M.S.P.R. 566, 569–570 (1992).

2

 A factor analysis of MPS 2010 results is discussed on p. 7 of the 2013 MSPB report, Managing Public Employees in the Public Interest: Employee 

Perspectives on Merit Principles in Federal Workplaces. The resulting factors were labeled “fairness,” “protection,” and “stewardship.”

Appendix D. Relationship

the MSPs and the P
84 The MSPs: Guiding the Fair and Effective Management of the Fede

Appendix D. Relationship between the MSP

As previously noted in Figure 2, Federal employees believe that MSP 6 represents the greatest challenge for 

supervisors. In contrast to MSP 3, which directs agencies to reward desired performance, MSP 6 requires 

corrective action for poor performance, including removing those employees who “cannot or will not 

improve their performance to meet required standards.” The corollary PPPs 1 and 2 indicate that non-merit 

reasons should not influence personnel decisions, such as removal.

Similarly, as described in MSP 9 and PPPs 8, 9, and 13, employees are protected from retaliation for certain 

covered actions. Specifically, in the event that an employee discloses information that meets the criteria for 

whistleblowing or exercises covered appeal, complaint or grievance rights, or assists others with exercising 

their rights or for refusing an order that would require them to break the law, an employer cannot take 

punitive actions against the employee.

In contrast to other MSPs, MSPs 4 and 5 discuss broad aspirational goals established for the Federal 

Government and do not uniquely relate to specific PPPs. Instead, these MSPs identify in general why 

PPPs should not occur since committing any of the PPPs would undermine the integrity, efficiency and 

effectiveness of the Federal civil service. 

Likewise, MSP 7 lacks an individually corresponding PPP, given that it relates to the aim of providing 

employees with needed education and training to enable them to effectively perform their duties. In this 

manner, it clearly identifies a goal which would enable the Federal workforce to be more effectively and 

efficiently managed because even in times of budget crisis, judiciously providing employees with needed 

learning opportunities can provide a positive return on investment. Additionally, providing employees with 

training can have the causal effect of reducing the likelihood of these employees committing PPPs.

In summary, there is considerable interaction between the aspirational MSPs and the actionable PPPs which 

demonstrates extensive overlap between these guiding principles. In other words, although MSPs were 

intended to serve as aspirational goals and have been deemed not to be “self-actuating,” violations of an 

MSP will likely result in a PPP that can be prosecuted. Further, PPP 12 may cover additional actions that 

result in a violation of a MSP. Together the MSPs and PPPs create a clear standard of expectations for not 

only the minimal standards, but also the ideals for fair, effective and efficient management of the Federal 

workforce.
A Report by the U.S. Merit Systems Protectio

Appendix D. Relationship between the MSPs an

Summary of the MSPs and Related PPPs3

Merit System Principle

Related 

PPP(s)

1

Recruit a diverse pool of applicants.

Hold fair and open competition.

Select the best-qualified applicants. 

1, 2, 4, 5, 6, 

7, 10

2 Treat employees and applicants fairly and equitably, and with respect for their 

privacy and constitutional rights.

1, 10

3 Pay employees fairly.

Recognize and reward performance.

1

4 Hold employees to high standards.

Put the public interest first.

All

5 Use the workforce efficiently and effectively. All

6 Retain employees based on performance.

Effectively address poor performance.

1, 2

7 Provide employees with training and development. All

8 Protect employees against arbitrary action, favoritism, and political coercion. 3; also 1, 2, 4, 

5, 6, 7, 10

9 Protect employees against reprisal for whistleblowing or exercising a right. 8, 9, 13

Prohibited Personnel Practice

An employee who may take, influence, or recommend a personnel action may not—

1 Discriminate on any protected basis, such as sex, ethnicity or race, disability, or religion.

2 Consider any reference or recommendation that is not directly related to the job to be 

performed.

3 Coerce political activity or base a personnel action on political activity or inactivity.

4 Obstruct any person’s right to compete for employment.

5 Influence any person to withdraw from competition.

6 Grant any unauthorized preference to an employee or applicant.

7 Provide an advantage to a relative.

8 Take or influence a personnel action in reprisal for whistleblowing.

9 Take or influence a personnel action in reprisal for exercise of a right of complaint or appeal.

10 Discriminate on the basis of conduct that is not job-related.

11 Take or influence a personnel action that violates any veterans’ preference requirement.

12 Take or influence a personnel action that violates any merit system principle.

13 Implement or enforce any improper nondisclosure policy or agreement.

3

 The MSPs and PPPs here are paraphrased for simplicity and brevity. For the full text of the MSPs and PPPs, refer to Appendix A and 

Appendix B or 5 U.S.C. §§ 2301(b) and 2302(b), respectively.
86 The MSPs: Guiding the Fair and Effective Management of the Fede

Appendix D. Relationship between the MSP
“Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a 

work force from all segments of society, and selection and advancement should be determined solely on 

the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all 

receive equal opportunity.”

A Report by the U.S. Merit Systems Protectio

Appendix E. MSPB R

Merit System Pri

These reports (and more) are available at: www.mspb.gov/studies/viewallstudies.htm.

MSP 1: Recruitment, Selection and Advancement

Recruitment

▪ Managing Federal Recruitment: Issues, Insights, and Illustrations (2004)

▪ Attracting the Next Generation: A Look at Federal Entry-Level New Hires (2008)

▪ In Search of Highly Skilled Workers: A Study on the Hiring of Upper Level Employees from Outside the Federal 

Government (2008)

▪ Reforming Federal Hiring: Beyond Faster and Cheaper (2006)

Fair and Open Competition

▪ The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs (2015)

▪ In Search of Highly Skilled Workers: A Study on the Hiring of Upper Level Employees from Outside the Federal 

Government (2008)

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism 

(2013)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

Assessment

▪ Reforming Federal Hiring: Beyond Faster and Cheaper (2006)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

▪ Assessing Federal Job Seekers in a Delegated Examining Environment (2001)

▪ Federal Appointment Authorities: Cutting through the Confusion (2008)
“All employees and applicants for employment should receive fair and equitable treatment in all aspects 

of personnel management without regard to political affiliation, race, color, religion, national origin, sex, 

marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional 

rights.” 

88 The MSP: Guiding the Fair and Effective Management of the Feder

Appendix E. MSPB Reports by Merit Sy

Assessment and Selection Instruments

▪ The Federal Selection Interview: Unrealized Potential (2003)

▪ Evaluating Job Applicants: The Role of Training and Experience in Hiring (2014)

▪ Identifying Talent Through Technology: Automated Hiring Systems in Federal Agencies (2004)

▪ Job Simulations: Trying Out for a Federal Job (2009)

▪ Reference Checking in Federal Hiring: Making the Call (2005) 

Probationary Period

▪ The Probationary Period: A Critical Assessment Opportunity (2005)

▪ Navigating the Probationary Period After Van Wersch and McCormick (2007)

MSP 2: Equity

Trends in Federal Workforce Composition and Employee Opinions

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining Employee Opinions (2009)

▪ Women in the Federal Government: Ambitions and Achievements (2011)

▪ Fair and Equitable Treatment: A Progress Report on Minority Employment in the Federal Government

(1996)

▪ A Question of Equity: Women and the Glass Ceiling in the Federal Government (1992)

▪ Achieving a Representative Federal Workforce: Addressing the Barriers to Hispanic Participation

(1997)
“Equal pay should be provided for work of equal value, with appropriate consideration of both national 

and local rates paid by employers in the private sector, and appropriate incentives and recognition should 

be provided for excellence in performance.”

A Report by the U.S. Merit Systems Protectio

Appendix E. MSPB Reports by Merit System

Fair and Equitable Management of Employees

▪ A Call to Action: Improving First-Level Supervision of Federal Employees (2010)

▪ Managing for Engagement—Communication, Connection, and Courage (2009)

▪ Managing Public Employees in the Public Interest: Employee Perspectives on Merit Principles in Federal 

Workplaces (2013)

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

▪ Women in the Federal Government: Ambitions and Achievements (2011)

MSP 3: Compensation

Pay, Performance Management and Recognition

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Managing Public Employees in the Public Interest: Employee Perspectives on Merit Principles in Federal 

Workplaces (2013) 

▪ Federal Employee Engagement: The Motivating Potential of Job Characteristics and Rewards (2012)

▪ Managing for Engagement—Communication, Connection, and Courage (2009)

▪ Designing an Effective Pay for Performance Compensation System (2006)
“The Federal work force should be used efficiently and effectively.”

MSP 4: Conduct

“All employees should maintain high standards of integrity, conduct, and concern for the public interest.”

How to Avoid Hiring of Employees with Conduct Issues

▪ Reference Checking in Federal Hiring: Making the Call (2005) 

▪ Clean Record Settlement Agreements and the Law (2013)

How to Handle Conduct and/or Performance Issues

▪ Clean Record Settlement Agreements and the Law (2013)

▪ The Probationary Period: A Critical Assessment Opportunity (2005) 

▪ Navigating the Probationary Period After Van Wersch and McCormick (2006)

▪ Employee Perceptions of Federal Workplace Violence (2012)

MSP 5: Utilization

Selection and Training of Supervisors 

▪ As Supervisors Retire: An Opportunity to Reshape Organizations (2009)

▪ A Call to Action: Improving First-Level Supervision of Federal Employees (2010)

How to Improve Employee Engagement and Organizational Outcomes

▪ The Power of Federal Employee Engagement (2008)

▪ Managing for Engagement—Communication, Connection, and Courage (2009)

▪ Federal Employee Engagement: The Motivating Potential of Job Characteristics and Rewards (2012)

▪ Telework: Weighing the Information, Determining an Appropriate Approach (2011)

90 The MSP: Guiding the Fair and Effective Management of the Feder

Appendix E. MSPB Reports by Merit Sy
“Employees should be retained on the basis of the adequacy of their performance, inadequate 

performance should be corrected, and employees should be separated who cannot or will not improve 

their performance to meet required standards.”

“Employees should be provided effective education and training in cases in which such education and 

training would result in better organizational and individual performance.”

A Report by the U.S. Merit Systems Protectio

Appendix E. MSPB Reports by Merit System

MSP 6: Retention

How to Remedy Poor Performance

▪ Addressing Poor Performers and the Law (2009)

▪ What is Due Process in Federal Civil Service Employment? (2015)

Effective Performance Management 

▪ Managing for Engagement—Communication, Connection, and Courage (2009) 

▪ What is Due Process in Federal Civil Service Employment? (2015)

MSP 7: Employee Training and Development

Training and Development

▪ Evaluating Job Applicants: The Role of Training and Experience in Hiring (2014)

▪ Training and Development for the Senior Executive Service: A Necessary Investment (2015)
“Employees should be protected against reprisal for the lawful disclosure of information which the 

employees reasonably believe evidences— 

(A) a violation of any law, rule, or regulation, or

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to 

public health or safety.”

“Employees should be—

(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or 

affecting the result of an election or a nomination for election.”

92 The MSP: Guiding the Fair and Effective Management of the Feder

Appendix E. MSPB Reports by Merit Sy

MSP 8: Neutrality

Preventing Partisan Political Actions

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

▪ Prohibited Personnel Practices: Employee Perceptions (2011)

Avoiding Favoritism

▪ Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism

(2013)

▪ Fair and Equitable Treatment: Progress Made and Challenges Remaining (2009)

MSP 9: Public Interest

Protecting the Rights of Whistleblowers 

▪ Blowing the Whistle: Barriers to Federal Employees Making Disclosures (2011)

▪ Whistleblower Protections for Federal Employees (2010)
A Report by the U.S. Merit Systems Protectio

Appendix F. Basic Obliga

Public Serv

General Principles (5 C.F.R. § 2635.101(b))4

(1) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and 

ethical principles above private gain.

(2) Employees shall not hold financial interests that conflict with the conscientious performance of duty.

(3) Employees shall not engage in financial transactions using nonpublic Government information or allow 

the improper use of such information to further any private interest.

(4) An employee shall not, except as permitted by subpart B of this part, solicit or accept any gift or other 

item of monetary value from any person or entity seeking official action from, doing business with, or 

conducting activities regulated by the employee’s agency, or whose interests may be substantially affected by 

the performance or nonperformance of the employee’s duties.

(5) Employees shall put forth honest effort in the performance of their duties.

(6) Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to 

bind the Government.

(7) Employees shall not use public office for private gain.

(8) Employees shall act impartially and not give preferential treatment to any private organization or 

individual.

(9) Employees shall protect and conserve Federal property and shall not use it for other than authorized 

activities.

(10) Employees shall not engage in outside employment or activities, including seeking or negotiating for 

employment, that conflict with official Government duties and responsibilities.

(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

(12) Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, 

especially those—such as Federal, State, or local taxes—that are imposed by law.

(13) Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans 

regardless of race, color, religion, sex, national origin, age, or handicap.

(14) Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or 

the ethical standards set forth in this part. Whether particular circumstances create an appearance that the 

law or these standards have been violated shall be determined from the perspective of a reasonable person 

with knowledge of the relevant facts.

4

 www.gpo.gov/fdsys/pkg/CFR-2005-title5-vol3/pdf/CFR-2005-title5-vol3-sec2635-101.pdf.

The Merit System Principles (MSPs) in this summary have been paraphrased and reformatted.

The MSPB report The Merit System Principles: Guiding the Fair and Effective Management of the Federal Workforce 

(September 2016), available at www.mspb.gov, provides the full text of each MSP, accompanied by an 

explanation of its intent, a discussion of Federal employee perceptions of adherence to the principle, related 

MSPB research findings and recommendations, and a brief discussion of illustrative MSPB cases. 

The Merit System Principles

Adapted from Title 5, United States Code, Section 2301(b).

1

Recruit a diverse pool of applicants. 

Hold fair and open competition. 

Select the best-qualified applicants. 

2 Treat employees and applicants fairly and equitably, and with respect for their 

privacy and constitutional rights. 

3 Pay employees fairly. 

Recognize and reward performance.

4 Hold employees to high standards. 

Put the public interest first.

5 Use the workforce efficiently and effectively.

6 Retain employees based on performance. 

Effectively address poor performance.

7 Provide employees with training and development.

8 Protect employees against arbitrary action, favoritism, and political coercion.

9 Protect employees against reprisal for whistleblowing or exercising a right.
The Prohibited Personnel Practices (PPPs) in this summary have been paraphrased and reformatted.

The MSPB report The Merit System Principles: Guiding the Fair and Effective Management of the Federal Workforce 

(September 2016), available at www.mspb.gov, provides the full text of the PPPs and a discussion of how 

they reinforce the Merit System Principles (MSPs).

Information on the PPPs and their enforcement is available on the website of the Office of Special Counsel, 

www.osc.gov.

The Prohibited Personnel Practices

Adapted from Title 5, United States Code, Section 2302(b).

An employee who may take, influence, or recommend a personnel action may not—

1 Discriminate on any protected basis, such as sex, ethnicity or race, disability, or 

religion.

2 Consider any reference or recommendation that is not directly related to the job to 

be performed.

3 Coerce political activity or base a personnel action on political activity or inactivity.

4 Obstruct any person’s right to compete for employment.

5 Influence any person to withdraw from competition.

6 Grant any unauthorized preference to an employee or applicant.

7 Provide an advantage to a relative.

8 Take or influence a personnel action in reprisal for whistleblowing.

9 Take or influence a personnel action in reprisal for exercise of a right of complaint 

or appeal.

10 Discriminate on the basis of conduct that is not job-related.

11 Take or influence a personnel action that violates any veterans’ preference 

requirement.

12 Take or influence a personnel action that violates any merit system principle.

13 Implement or enforce any improper nondisclosure policy or agreement.

U.S. Merit Systems Protec

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The Merit System Principles:

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of the Federal Workforce

September 2016