U.S. Merit Systems Protection Board

Office of Policy and Evaluation Research Brief

The Perceived Incidence of Prohibited Personnel Practices

June 2019

In Brief

The prohibited personnel practices (PPPs), codified in the Civil Service Reform Act (CSRA) of 

1978 at 5 U.S.C. § 2302, are a set of 14 behaviors that Federal agency officials are not permitted 

to engage in when they consider taking personnel actions. The U.S. Merit Systems Protection 

Board (MSPB) has a nearly 40-year history of conducting surveys to track perceptions of the 

frequency of these PPPs. In 2016, we conducted a Merit Principles Survey (MPS) to track 

employee perceptions of whether these PPPs had occurred. This publication provides a brief 

summary of those MPS results with a comparison set of data from the 2010 MPS where available.

For each individual PPP that was measured in both surveys, the data show that the percentage of 

employees who believe that the PPP had occurred has increased, although the size of that increase 

varies greatly by PPP. They also show that the number of individuals reporting that they either 

observed or were personally affected by a PPP increased, from 34 percent of MPS respondents in 

2010 to 46 percent in 2016.

In this same time period, PPP complaints to the U.S. Office of Special Counsel (OSC) increased, 

from 2,415 to 4,124. This appears to support the MPS data’s implications that the percentage of 

employees who perceive that they have experienced or observed a PPP has increased from 2010 

to 2016. The data cannot tell us why perceptions increased. However, to put that increase in 

context, perceptions in 2010 were at their lowest level in years. Furthermore, in the period 

between 2010 and 2016, OSC and many employing agencies made a strong effort to ensure 

employees were educated about the PPPs. It is possible that this increased education resulted in a 

better ability by employees to recognize PPPs, and therefore report them. MSPB currently plans 

to ask questions about the PPPs again on our next MPS, using the 2016 results as a new baseline.

In our 2011 report, Prohibited Personnel Practices: Employee Perceptions, we illustrated the 

business case for preventing PPPs by showing the relationship between PPP perceptions and 

other important workforce perceptions, such as levels of engagement. The 2016 MPS results 

similarly show that employees are less likely to be engaged or to view other aspects of their jobs 

or employers positively if they report observing or experiencing PPPs.

The 2011 report on the PPPs recommended that:

1. Agencies educate their workforces, and in particular their executives, managers, supervisors, 

human capital staff, and equal employment opportunity advisors, about the PPPs.

2. Agencies investigate allegations that a PPP has occurred, correct any improper personnel 

actions, and “consider taking disciplinary action to address the misconduct” of the offender.

Agencies were also advised to address any root causes that permitted the PPP to occur.

3. Where there are perceptions of PPPs, but the agency concludes that PPPs have not occurred, 

agencies should seek to do a better job of explaining to employees the reasons behind 

management decisions so that employees can better understand the merit-based reasons for a 

particular outcome and avoid misperceptions in the future.
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 2

A workplace free of PPPs, as envisioned by the CSRA, requires more than avoiding and 

investigating clear violations. It also involves active efforts to adhere to the merit system 

principles (MSPs) and to comply with the intent, and not merely the letter, of laws and policies 

that implement those MSPs. 

In our 2016 report, The Merit System Principles: Guiding the Fair and Effective Management of

the Federal Workforce, we recommended that agencies ensure that all employees receive training 

on the MSPs, tailored to their level of responsibility, delivered by experts. We further 

recommended that agencies hold supervisors, managers, and executives accountable through 

internal agency mechanisms for adhering to the MSPs and avoiding PPPs.

In the absence of a Board quorum, we are unable to issue new recommendations to Congress and 

the President on behalf of the Board.1 However, there is nothing to indicate these 

recommendations would change, beyond the possible addition of recommendations to promote 

compliance with the requirements of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 

2017 (codified at 5 U.S.C. § 7515). Our 2011 recommendation was that agencies consider taking 

disciplinary action, while the 2017 law requires that under certain circumstances, disciplinary 

action must be proposed against an official who has committed a PPP. The Office of Personnel 

Management (OPM) has indicated it intends to issue regulations to help agencies to implement 

this statute.

Methodology

The 2016 MPS was divided into three versions (“paths”) to support distinct areas of study. The

2016 MPS path containing the questions about the PPPs discussed in this publication was offered 

to 37,397 Federal employees with 14,473 respondents, for a response rate of 38.7 percent. Not all 

respondents chose to answer every question about the PPPs. Employees from 24 agencies took 

part in the 2016 MPS. Administration began in July 2016 and closed in September 2016.

Responses were weighted to ensure representativeness of the overall surveyed population.2

Some PPPs are dependent upon a triggering event. For example, a perception of retaliation based 

upon whistleblowing activity requires a belief that someone engaged in whistleblowing.

Likewise, manipulating a recruitment action to the advantage of a person would require a belief 

that there was a recruitment action. Additionally, some employees may not feel they would be 

aware if a particular PPP had occurred. All PPP questions included a response option for “don’t 

know/NA.” Except when stated otherwise, data in this brief only reflects responses from those 

who expressed they were in a position to form a view that: (1) they were personally affected by 

the PPP in question; (2) they observed the PPP without being personally affected; or (3) the PPP 

did not occur.

 1 By law, the Board is to be led by three members, no more than two of whom can adhere to the same political party. The Board currently 

has no members. The 2011 report, Prohibited Personnel Practices: Employee Perceptions, was issued with the approval of all three Board members.

2 We also spoke with representatives from nine Federal agencies to discuss possible explanations for the increase in perceptions. For more 

on the methodology for the 2016 MPS, please visit MSPB’s Freedom of Information Act electronic reading room (e-FOIA), at www.mspb.gov. The 

electronic version of the 2010 MPS was offered to 70,675 employees, with 41,680 respondents, for a response rate of 59 percent. The paper version 

of the 2010 MPS was mailed to 1,295 employees from the Federal Aviation Administration, with 340 respondents, for a response rate of 26 percent.
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 3

The PPPs Abbreviated

The prohibited personnel practices listed below are adapted from the statutory language that 

appears in section 2302 of title 5, United States Code. It is a prohibited personnel practice to:

1. Discriminate on the basis of race, color, religion, sex, national origin, age, handicapping 

condition, marital status, or political affiliation; 

2. Solicit or consider any personnel recommendation or statement not based on personal 

knowledge or records of performance, ability, aptitude, general qualifications, character, 

loyalty, or suitability;

3. Coerce an employee’s political activity;

4. Deceive or obstruct any person with respect to such person’s right to compete for 

employment;

5. Influence a person to withdraw from competition;

6. Grant any preference or advantage not authorized by law, regulation, or rule;

7. Employ or promote a relative;

8. Retaliate or threaten to retaliate against a whistleblower, whether an employee or an 

applicant; 

9. Retaliate or threaten to retaliate against employees or applicants who exercise their 

appeal, complaint, or grievance rights; testify for or assist an individual in doing so; 

cooperate with an inspector general or the Special Counsel, or refuse to violate a law, rule 

or regulation;

10. Discriminate based on actions not adversely affecting performance; 

11. Knowingly violate veterans’ preference requirements;

12. Violate any law, rule, or regulation implementing or directly concerning the merit 

principles;

13. Implement a nondisclosure policy or agreement that does not comport with the laws 

regarding whistleblower protection and disclosures to Congress or Inspectors General; or

14. Access the medical record of an employee or applicant as part of the commission of any 

conduct described above.

For a more in-depth discussion of the meaning of the first 12 PPPs, which were enacted prior to 

2011, please see our 2011 report, Prohibited Personnel Practices: Employee Perceptions.

Overall Increase in PPP Perceptions

In our 2011 report on PPPs, we stated that “perceptions of PPPs occurring have declined over the 

past 18 years, and were almost uniformly less common in 2010 compared to earlier years[.]”3 In 

 3 U.S. Merit Systems Protection Board, Prohibited Personnel Practices: Employee Perceptions (2011), at 26, available at 

www.mspb.gov/studies. 
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 4

2010, 34 percent of MPS respondents reported that they either observed or experienced one or 

more of the PPPs itemized in that survey. In 2016, 46 percent of employees said that they either 

observed or experienced one or more of the PPPs, even though there were slightly fewer PPP 

items on the survey.

OSC has a statutory responsibility to process complaints that PPPs have occurred. As shown in 

Chart 1, OSC received an increased number of complaints alleging a PPP in in the period 

between 2010 and 2016.

While we cannot make direct comparisons between survey perceptions and PPP complaints filed 

with OSC, the increase in cases submitted to OSC—from 2,415 in FY 2010 to 4,124 in FY 

2016—may be further evidence that perceptions of PPPs increased in this period. However, there 

could be many reasons for an increase in perceptions. It is possible more PPPs are occurring.

However, it is also possible that employees have become better at recognizing and reporting PPPs 

as a result of increased efforts to educate them about the PPPs. Several agencies informed us that 

they believed their workforces had become much better educated about the PPPs. As a result, 

2016 may serve as a better baseline for comparison to our next MPS than 2010 did for the 2016 

data.

Chart 1: PPP Cases Received by OSC (FY 2009–FY 2016)

Increase in Individual PPP Perceptions

The extent to which perceptions of each individual PPP measured on the MPS increased varied 

greatly by PPP. Below we address each PPP individually. Appendix A contains a table providing 

separate data for those who stated they were personally affected by the PPP versus those who 

stated they observed the PPP without being personally affected or did not perceive the PPP at all.

Perceptions of Discrimination

As shown in Table 1, sex-based discrimination had the largest increase in the number of 

respondents perceiving it compared to any other type of discrimination. It nearly overtook racebased perceptions (19.9 percent versus 20.6 percent) as the most perceived type of discrimination. 

 

2,453 2,415 2,580 

2,960 2,930 

3,356 

4,051 4,124 

 -

 500

 1,000

 1,500

 2,000

 2,500

 3,000

 3,500

 4,000

 4,500

FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 5

Table 1: Perceptions of Discrimination (2010 and 2016)

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

In the past 2 years, an agency official (e.g., 

supervisor, manager, senior leader, etc.) in my 

work unit has discriminated in favor or against 

someone in a personnel action based upon...

race 13.7% 20.6% + 6.9%

age 11.5% 17.6% + 6.1%

religion 3.3% 5.1% + 1.8%

sex 11.7% 19.9% + 8.2%

national origin 5.5% 7.7% + 2.2%

disabling condition 7.1% 12.4% + 5.3%

marital status 4.2% 5.3% + 1.1%

political affiliation 3.2% 4.1% + 0.9%

In 2010, 11.2 percent of women and 11.8 percent of men reported they observed or experienced

sex-based discrimination. In 2016, 21.7 percent of women and 18.4 percent of men reported they 

had observed or experienced this. For both men and women, the percentage of respondents who 

said it was a personal experience increased as well as those who said it was an observation of the 

treatment of others. Also, in both years, men were less likely than women to say they had 

personally experienced it, and more likely to say they had observed it without experiencing it.

While sex-based perceptions increased the most, perceptions of discrimination based upon race, 

age, and disability each increased by more than five percentage points. The overall pattern, in 

which all enumerated section 2302(b)(1) perceptions increased, may speak to a larger issue of 

perceptions about discrimination in the workplace.

Perceptions of Improper Recommendations 

The second PPP prohibits an official from considering recommendations regarding personnel 

actions unless the person providing the recommendation has personal knowledge or possesses 

records that form the basis for the recommendation. Table 2 shows that the overall perception rate 

for this PPP increased by 3.7 percentage points. Most of the increase is attributable to a greater 

number of respondents reporting that they were personally affected (an increase from 3.7 percent 

to 6.4 percent).

Table 2: Perceptions of Improper Recommendations (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...solicited or considered improper employment recommendations 13.2% 16.9% + 3.7%

Perceptions of Political Coercion 

The third PPP prohibits an official from coercing anyone’s political activity or retaliating for 

someone’s refusal to engage in a political activity. As Table 3 shows, this has historically been 

one of the less common perceptions. However, protecting the merit system from being used as a 

“political machine” was the reason why the merit-based civil service was established in 1883 and 

why, in 1939, Congress enacted the Hatch Act, which restricts partisan political activities by 
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 6

Federal civil servants.

4 For the civil service to operate effectively, and for the American people to 

have faith in the Government, it is absolutely crucial that political coercion not be tolerated and 

that both employees and the general public perceive that it is not permitted.

Table 3: Historical Perceptions by Federal Employees of Coercion of Political Activity

1992 1996 2000 2005 2007 2010 2016

Percentage of respondents who reported a 

perception that they experienced coercion related 

to political activity in the preceding 2 years.

0.5% 1.0% 0.6% * 1.9% 0.7% *

Due to a technical error, this PPP was not included on the 2005 or 2016 MPS. However, as shown 

in the last row of Table 1, perceptions of discrimination based on political affiliation increased 

between 2010 and 2016.

Perceptions of Obstruction of Competition

The fourth PPP prohibits an official from using deception or otherwise willfully acting to obstruct 

someone’s right to compete for employment. As shown in Table 4, perceptions of this PPP 

increased by about a third of the 2010 level. As with improper recommendations (the second 

PPP), much of this increase came from an increase in employees responding that they personally 

experienced it (an increase from 4.8 percent to 7.6 percent).

Table 4: Perceptions of Obstruction of Competition (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...obstructed someone’s right to compete for employment 13.6% 18.1% + 4.5%

Perceptions of Influencing a Withdrawal from Competition

The fifth PPP focuses on attempts to influence an individual to withdraw from competition.

As Table 5 shows, perception rates for this PPP more than doubled between 2010 and 2016. Also 

noteworthy was the extent to which rates of perceptions increased that the individual survey 

respondent was personally affected by this PPP—an increase from 2.2 percent in 2010 to 6.0 

percent in 2016.

Table 5: Perceptions of Influencing a Withdrawal from Competition (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...tried to influence someone to withdraw from competition for a

position for the purpose of helping or injuring someone else's chances 7.0% 15.4% + 8.4%

 4 The Supreme Court has explained that “enactment of the Hatch Act in 1939 reflected the conviction that the rapidly expanding 

Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine.” United States v. National 

Treasury Employees Union, 513 U.S. 454, 471 (1995) (internal punctuation and citations omitted). For a discussion of the political patronage spoils 

system prior to the Pendleton Act of 1883, see U.S. Merit Systems Protection Board, What is Due Process in Federal Civil Service Employment? 

(2015), at 3-6, available at www.mspb.gov/studies. 
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 7

Perceptions of Granting an Improper Advantage

The sixth PPP prohibits an official from providing any advantage to a candidate, unless there is a 

law, rule, or regulation that authorizes the advantage. In order for an action to be covered by the 

6th PPP, the official must be acting “for the purpose of improving or injuring the prospects of any 

particular person for employment[.]” As the Board has explained, for this PPP, it is not the 

personnel action itself that violates the law, but, instead, the intent behind the action.5 Across 

more than 20 years of MPS administrations, the sixth PPP has consistently been the most widely 

perceived PPP. As shown in Table 6, approximately 31 percent of respondents perceived this PPP 

in 2016.

Table 6: Perceptions of Granting an Improper Advantage (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...tried to define the scope or manner of a recruitment action, or the 

qualifications required, for the purpose of improving the chances of a 

particular person’s right to compete for employment

22.0% 30.6% + 8.6%

Perceptions of Nepotism

The seventh PPP prohibits an official from acting to appoint, employ, promote, or advance a 

relative, or to advocate for such an act. “Relative” is specifically defined in the statute, which can 

help eliminate confusion about where the law draws the line. A “relative” means “an individual 

who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, 

first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-inlaw, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, 

stepsister, half brother, or half sister.”6 Our 2016 report, Preventing Nepotism in the Federal Civil 

Service, discusses this issue in greater depth and includes recommendations for agencies, 

employees, and applicants to help limit such offenses. As shown in Table 7, perceptions of 

nepotism increased slightly between 2010 and 2016.

Table 7: Perceptions of Nepotism (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...advocated for the appointment, employment, promotion, or 

advancement of a relative 12.2% 14.0% + 1.8%

In both the 2010 and 2016 MPS, we also included a question that asked about perceptions that an 

official had “advocated for the appointment, employment, promotion, or advancement of a 

personal friend of the agency official.” It was our hope that this would help focus the 

respondents’ attention on the distinction between nepotism and favoritism. In 2010, 21.1 percent 

 5 Special Counsel v. Lee, 114 M.S.P.R. 57, ¶ 21 (2010) (citing Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 (1993)), rev’d in part on 

other gds. sub nom. Beatrez v. Merit Systems Protection Board, 413 F. App’x 298 (Fed. Cir. 2011).

6 5 U.S.C. § 3110(a)(3).
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 8

of respondents reported they either observed or were personally affected by such favoritism. In 

2016, the number increased slightly to 22.9 percent.

In an effort to confirm that respondents were truly distinguishing between nepotism and 

favoritism, the 2016 MPS asked a follow-on question, inquiring about the exact nature of the 

relationship between the official who they thought had most recently committed nepotism and the 

beneficiary of the nepotism. The most common answer, child, was given by 32.1 percent of those 

who reported nepotism, while 17.0 percent said spouse, 8.7 percent said sibling, 5.6 percent said 

niece or nephew, 1.8 percent said cousin, and 19.2 percent said it was another “relative by blood 

or marriage.” Yet, 15.6 percent acknowledged that it was a “non-relative.” Thus, it appears that at 

least some of the data that purports to be about nepotism may, in fact, be capturing favoritism 

instead.

While non-merit based favoritism is also problematic, and a violation of a merit principle, it is not 

technically nepotism (a violation of the prohibition contained in 5 U.S.C. § 2302(b)(7) and 

5 U.S.C. § 3110) unless it favors a relative. However, that most of the perceived beneficiaries of 

“nepotism” were identified as individuals covered by the nepotism statute indicates that 

nepotism—as defined in law—is perceived as actually occurring.

Our 2016 MPS also asked respondents to identify the rank of the alleged offender. Nearly a 

quarter (24 percent) of respondents who perceived nepotism reported that it was an executive or a 

person in an equivalent position, while 43.9 percent reported that it was a manager and 16.8 

percent reported that it was a first line supervisor. (The remainder said that it was either a nonsupervisor in human resources or another position.) If perceptions were spread representationally, 

we would expect supervisors to be suspected nearly twice as often as managers, and executives to 

comprise less than five percent of the suspected population. Instead, the data shows managers, 

and particularly executives, are disproportionately believed to be committing acts of nepotism.

Our 2016 report, Preventing Nepotism in the Federal Service, discusses reasons why higherranking officials are more often perceived as committing nepotism and steps agencies should 

consider to reduce perceptions and limit opportunities for such offenses to occur.

Perceptions of Retaliation for Whistleblowing

The eighth PPP prohibits an official from taking or failing to take (or threatening to take or fail to 

take) a personnel action because of an individual’s whistleblowing activity. As shown in Table 8, 

perceptions of reprisal for disclosing wrongdoing nearly doubled between 2010 and 2016.

Table 8: Perceptions of Retaliation for Whistleblowing (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...took or threatened to take a personnel action against an employee 

because the employee disclosed a violation of law, rules, or regulations 

or reported fraud, waste, or abuse

8.1% 14.3% + 6.2%

Employees need to believe that they can safely disclose wrongdoing, and this is less likely to 

occur if they believe they have seen others experience retaliation for it, or if they feel that 
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 9

disclosures they made in the past led to retaliation by agency officials.7 As explained in our 2011 

report, Blowing The Whistle: Barriers to Federal Employees Making Disclosures, the most 

important step that agencies can take to prevent wrongdoing may be the creation of a culture that 

supports whistleblowing.

Perceptions of Retaliation for Other Lawful Activities

The ninth PPP prohibits officials from making reprisals against an employee or applicant for:

(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 part 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) Refusing to obey an order that would require the individual to violate a law, rule, or 

regulation.

To keep matters simple (a necessity for a multiple-choice survey covering a wide range of issues) 

the MPS only asked about reprisal for “exercising a grievance or appeal right.” As shown in 

Table 9, perception rates increased sharply for this type of retaliation. The purpose of appeal and 

grievance rights is not just to protect the employee in question, but also to promote management’s

adherence to laws and merit principles. If fears of retaliation hinder the exercise of complaint, 

grievance, or appeal rights, that could have serious consequences—not just for individual 

employees, but for the ability of the civil service to operate based upon merit.

Table 9: Perceptions of Other Retaliation (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...took or threatened to take a personnel action against an employee 

because the employee filed an appeal or grievance 11.1% 18.9% + 7.8%

Perceptions of Discrimination Based on Employee Conduct Irrelevant to Performance

The 10th PPP prohibits discrimination “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[.]”

In our report, Sexual Orientation and the Federal Workplace, we noted that both OPM and OSC 

had interpreted section 2302(b)(10) to include a prohibition on discrimination based on sexual 

orientation because of the lack of relationship between the conduct associated with such 

orientation and performance on the job.8 However, neither MSPB nor its reviewing court has ever 

explicitly agreed or disagreed with this interpretation in a precedential decision.

 7 See U.S. Merit Systems Protection Board, Blowing The Whistle: Barriers to Federal Employees Making Disclosures (2011), at 17 

(explaining the extent to which various concerns affect employee decisions to report wrongdoing), available at www.mpsb.gov/studies. 

8 U.S. Merit Systems Protection Board, Sexual Orientation and the Federal Workplace (2014), at 19-20, 46, available at 

www.mspb.gov/studies. 
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 10

Our 2016 MPS did not ask about discrimination based on off-duty conduct in general. Instead, we 

specifically asked whether the respondent had been discriminated against on the basis of sexual 

orientation. As shown in Table 10, perception rates increased.

Table 10: Perceptions of Discrimination Based on Sexual Orientation (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...discriminated in favor or against someone in a personnel action based 

upon sexual orientation 4.4% 6.3% + 1.9%

Perceptions of Deliberate Violations of Veterans Preference

This PPP is particularly hard to measure with perception data because section 2302(b)(11) 

focuses on an official knowingly violating an individual’s veterans’ rights. This means that the 

survey respondent must make assumptions about the nature of those rights, the official’s 

knowledge, and the official’s motives. Therefore, survey data of perceptions by observers should 

not be seen as definitive evidence of wrongdoing. However, such data can be a sign that actions 

should be scrutinized to determine if the perceptions are faulty or if wrongdoing is occurring.

Table 11 contains the survey results from 2010 and 2016 regarding violations of veterans’ 

preference. We also asked a related question—whether the respondent was personally affected by 

an official inappropriately favoring a veteran. In 2016, where only 7.0 percent of respondents 

reported that a knowing violation of preference had occurred (personal experience and 

observations combined), 11.5 percent reported an official had inappropriately favored a veteran.

Agencies should be vigilant to ensure that the only preferential treatment being granted is that 

which is authorized by law.

Table 11: Perceptions of Veterans Preference Violations (2010 and 2016)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has...

Change in Perceptions (Percentage Points) ↓

Observed (Including Those Affected) – 2016 Survey ↓

Observed (Including Those Affected) – 2010 Survey ↓

...knowingly violated a lawful form of veterans’ preference or 

protection laws 4.5% 7.0% + 2.5%

Perceptions of Other PPPs

We cannot report on changes in perceptions of the other PPPs at this time. The 12th PPP applies 

to personnel actions that violate “any law, rule, or regulation implementing, or directly 

concerning, the merit system principles[.]” Because this PPP does not lend itself to an informed 

multiple choice question or a short series of questions, perception data for this PPP is not directly 

captured by the 2016 MPS. For a discussion of perceptions related to the individual merit system 

principles, please see The Merit System Principles: Guiding the Fair and Effective Management 

of the Federal Workforce and the 2013 report Managing Public Employees in the Public Interest: 

Employee Perspectives on Merit Principles in Federal Workplaces. Both discuss 2010 MPS 

responses to 25 questions related to the merit system principles.
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 11

Because the 13th PPP was enacted after the 2010 MPS, we have no longitudinal data to offer on 

that PPP at this time. In order to explore the new PPP in greater depth, this PPP received more 

questions on the 2016 MPS than other PPPs. The next section discusses that data.

The 14th PPP is relatively recent and was enacted after the administration of the 2016 MPS. We 

therefore have no survey data to offer on that PPP at this time.

Nondisclosure Agreements and Policies

The 13th PPP says that it is illegal to “implement or enforce any nondisclosure policy, form, or 

agreement, if such policy, form, or agreement does not contain” the specific language set forth in 

the statute at 5 U.S.C. § 2302(b)(13).

9 By statute, a nondisclosure agreement (NDA) or 

nondisclosure policy (NDP) must state (among other things) that it does not supersede the right to 

report wrongdoing to an Inspector General and does not supersede whistleblower protections.

As OSC has not yet filed charges with MSPB alleging a violation of section 2302(b)(13), we can 

offer no case law interpreting the meaning or applicability of this PPP. (Our 2011 report offers 

case law for many of the other PPPs.) However, that OSC has not filed any charges for 

disciplinary or corrective actions regarding section 2302(b)(13) should not be interpreted as a 

lack of findings on their part regarding violations of this PPP. Rather, OSC has resolved a number 

of such matters through negotiated agreements.10

As shown in Table 12 on the following page, the NDAs—and to a lesser extent the NDPs—may 

be missing the required language about protecting rights. Approximately half of those who signed 

an NDA did not recall if the agreement promised they could still blow the whistle or be protected 

if they blew the whistle. Of those who could recall, the responses were nearly evenly divided 

between those who recalled that the protective language was there and those who recalled it being 

absent.11

 9 This PPP was added to section 2302 by the Whistleblower Protection Enhancement Act (WPEA) of 2012. The history of this PPP can be 

traced back to 1988, when, “Senator Grassley sponsored an amendment to the Treasury, Postal and General Government Appropriations bill, which 

is referred to as the ‘anti-gag’ provision. This provision [was] included in appropriations legislation every year since then [until the passage of 

WPEA].” S. Rep. 112-155, at 62-64 (112 U.S.C.C.A.N. 589) (Apr. 19, 2012).

10 See, e.g., “OSC’s Enforcement of the Anti-Gag Order Provision in Whistleblower Law,” Press Release, Jan. 25, 2017, available at 

https://osc.gov/News/pr17-03.pdf (“To date, OSC has obtained 33 corrective actions addressing violations of the anti‐gag provision. Typically, these 

corrective actions require agency management to revise their communication to employees to include language explicitly stating that employees have 

the right to blow the whistle.” At least one of these cases involved an explicit finding by OSC that the required language was missing from the 

employing agency’s nondisclosure agreements.)

11 We typically remove the “not sure” or “don’t know” categories from discussions of data because the greatest value usually lies in 

discussing perceptions that have been formed, whether positive or negative. However, there are situations where a respondent’s lack of certainty 

about events is noteworthy. Our 2010 MPS asked employees what effect a particular consequence might have on their willingness to disclose 

wrongdoing. Sixty-two percent reported that protection from reprisal would be important to their decision-making process. Therefore, it is pertinent 

if an employee is aware of an NDP or NDA, but is not aware of retention of the right to: (1) blow the whistle; or (2) be protected for blowing the 

whistle.
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 12

Table 12: Perceptions of Provisions in Nondisclosure Policies and Agreements (2016)

Yes No Not Sure

In the past two years, has your agency asked you to enter 

into a nondisclosure agreement? 10.5% 70.4% 19.1%

If you were asked to enter into such an agreement—

Did the nondisclosure agreement state that the 

provisions did not supersede or alter your right to 

blow the whistle on wrongdoing?

24.6% 28.7% 46.7%

Did the non-disclosure agreement state that the 

provisions did not supersede or alter your right to 

whistleblower protections if you made a disclosure 

of wrongdoing?

24.2% 25.8% 50.0%

In the past two years, has your agency informed you of a

nondisclosure policy? 11.0% 57.8% 31.2%

If you were informed about such a policy—

Did the communication about the nondisclosure 

policy include that the policy did not supersede or 

alter your right to blow the whistle on wrongdoing?

47.0% 14.9% 38.0%

Did the communication about the nondisclosure 

policy include that the policy did not supersede or 

alter your right to whistleblower protections if you 

made a disclosure of wrongdoing?

44.0% 14.7% 41.4%

In contrast, more respondents recalled the content of the NDP. Among those who recalled 

communications about the policy regarding the right to blow the whistle, approximately three out 

of every four respondents said the communication informed them that they could report 

wrongdoing (47 percent vs. 15 percent). While this is far better than responses to the mirror 

question for NDAs, there is still room for improvement.

Similarly, for those who recalled communications about NDPs and protections if they blew the 

whistle, approximately three out of every four respondents said the communication included that 

they would have such protections (44 percent vs. 15 percent). Again, this is far better than the 

mirror question for NDAs.

The Effect of PPPs

Officials who desire that their workplaces run efficiently and effectively should take steps to 

ensure that PPPs do not occur and that the workforce perceives their officials as complying with 

these rules.

In recent years, MSPB, OPM, and others have emphasized the importance of engagement in the 

effective operation of the civil service. Our 2008 report, The Power of Federal Employee 

Engagement, explained that, among other things, employee engagement had a relationship to 

agency performance results, reduced use of sick leave, and reduced workplace injuries. 

Our 2011 report on the PPPs noted that employees who reported they had observed or 

experienced a PPP were less likely to be highly engaged. As shown in Chart 2, that finding 

remains true for the 2016 MPS data as well.
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 13

Chart 2: Relationship Between Engagement and PPP Perceptions (2016)

While 57 percent of those respondents who neither saw nor experienced a PPP were engaged, 

only 21 percent of those who observed a PPP (without experiencing one) were engaged, and only 

14 percent of those who reported being personally affected by a PPP were engaged.

Research has shown that a workplace’s culture can cause an individual to “bring themselves into 

or remove themselves from particular task behaviors.”12 If you want an employee to bring all of 

himself or herself to the performance of a duty (e.g., creativity, energy, and commitment to 

excellence), then the workplace culture matters.

Our 2016 MPS asked respondents a series of questions about their workplace culture. The 

relationship between PPP perceptions and the individual workplace culture survey items can be 

seen in Appendix B. To aid discussion, we combined responses to the 19 workplace culture 

questions into a single measure and assigned respondents to 3 categories of approximately equal 

size (“most positive,” “moderately positive,” and “least positive”) based on that measure. 

As shown in Chart 3, only 10 percent of those who experienced one or more PPPs, and 18 percent 

of those who observed one or more PPPs (without experiencing any), reported a workplace 

culture in the “most positive” category. That contrasts with 46 percent among the respondents 

who did not experience or observe a PPP.

The data cannot establish whether observing a PPP increases the likelihood of an employee 

perceiving the workplace culture negatively, or whether perceptions of a poor culture increase the 

likelihood that management actions will be negatively interpreted as the commission of a PPP.

Similarly, the data cannot establish whether observing a PPP increases the likelihood of an 

employee feeling disengaged, or whether disengagement increases the likelihood that 

management actions will be negatively interpreted as the commission of a PPP. However, none of 

these scenarios are good for the merit systems or an effective and efficient civil service.

 12 William A. Kahn, “Psychological Conditions of Personal Engagement and Disengagement at Work,” Academy of Management Journal

(Dec. 1990), Vol. 33, No. 4, at 692, 700-01.

51%

29%

6%

36%

50%

37%

14% 21%

57%

0%

20%

40%

60%

80%

100%

Experienced

one or more PPPs

Observed

one or more PPPs

Did not experience or

observe any PPPs

Engaged

Somewhat

Engaged

Not Engaged
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 14

Chart 3: Relationship Between Culture and PPP Perceptions (2016)

Given the comparatively negative workplace culture in work units where PPPs are perceived, it is 

unsurprising that PPP perceptions also coincided with perceptions that there were barriers to 

employees doing their best work. On our 2016 MPS, we asked respondents if they agreed with 

the statement, “My work unit produces high-quality products and services.” Of those employees 

who reported they neither saw nor experienced any PPPs, 90 percent agreed with the statement 

about their work unit producing high-quality products and services. But, of those who reported 

they experienced a PPP, only 59 percent agreed the work unit’s products and services were highquality. Of those who reported they observed at least one PPP—while personally experiencing no 

PPPs—only 71 percent agreed the products and services were high-quality. In other words, there 

was a nearly 20 percentage point drop between those in a workplace without visible PPPs and 

those in a workplace where PPPs were seen, and another 12 point drop beyond that for those who 

perceived they experienced one or more PPPs. 

It is important to recognize that these views about products and services are perceptions, and it is 

possible for perceptions to be in error. However, it is problematic that employees in the work 

units, who would—presumably—be in a good position to judge what the work units were 

producing, would have these views. 

Also worrisome is the negative relationship between PPP perceptions and perceptions that 

creativity and innovation would be rewarded. For those who neither saw nor experienced PPPs, 

59 percent of respondents agreed that creativity and innovation are rewarded. But, for those who 

observed at least one PPP—while experiencing none—the agreement rate dropped by more than 

half, to 25 percent. For those who experienced at least one PPP, only 16 percent agreed.

The Government has become increasingly dependent on knowledge-based work and relies on 

innovative ideas for improvement. For those who observed or experienced a PPP, the low 

agreement levels that creativity and innovation are rewarded are especially problematic. Human 

capital is the Government’s most valuable resource and the American people cannot afford to 

have the value of that resource so greatly diminished.

68%

49%

17%

22%

33%

37%

10%

18%

46%

0%

20%

40%

60%

80%

100%

Experienced

one or more PPPs

Observed

one or more PPPs

Did not experience or

observe any PPPs

Most Positive

Culture

Moderately

Positive

Culture

Least Positive

Culture
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 15

The Government also needs to be able to recruit high-quality employees. Yet, employees who 

perceive PPPs are much less likely to recommend their agency as a place to work. Among those 

who did not observe or experience a PPP, 81 percent agreed that they would recommend their 

agency as a place to work. For those who observed one or more PPPs, the agreement rate dropped 

to 51 percent, while those who reported personally experiencing one or more PPPs had only 36 

percent of respondents agree.

The 2016 MPS asked respondents if there was a spirit of trust in their work unit. While 74 percent 

of those who reported observing or experiencing none of the listed PPPs agreed there was a spirit 

of trust, only 38 percent of those who observed a PPP and 29 percent of those who experienced a

PPP reported there was a spirit of trust. (The relationship between PPP perceptions and more 

workplace culture survey items can be seen in Appendix B.)

Personnel decisions can be subjective, with reasonable people disagreeing on the best approach.

This can produce an opportunity for suspicion about motives and therefore perceptions that a 

personnel action is based on a prohibited practice. The perception alone is not proof of an 

impropriety, but such a perception can, nevertheless, have a negative effect on the work unit.

As the data has shown, employees perceiving that their agency engages in PPPs has a strong 

relationship to how employees view their work unit and agency as a whole. In addition to being a 

violation of law, the commission of a PPP is simply a bad business practice with real-world costs 

for the organizations that are seen as permitting them to occur.

Conclusion

In 2012, Congress established in statute a requirement that NDAs and NDPs contain language 

informing employees that they retained their whistleblowing rights. With respect to NDPs, the 

data indicates that nearly four years later, less than half of those operating under such policies 

recalled being told of their whistleblower rights. The data is even more disturbing for NDAs, 

where only a quarter of employees under such agreements recalled being told, despite the legal 

requirement. The data indicate that agencies need to do more to ensure that employees operating 

under NDAs and NDPs understand their whistleblowing rights and abilities. 

Every PPP that was included in both the 2016 and 2010 surveys showed higher levels of

perception in 2016 compared to 2010. In some cases the increase was minor, in others it was 

more dramatic. This pattern in which all showed some degree of increase is, perhaps, a greater 

source of concern than the increase in any one PPP, as it may speak to a larger cultural issue.

Agencies must not permit PPPs to occur, and yet nearly half of surveyed employees perceived 

that at least one has.

Both employees who felt personally affected by a PPP and employees who reported seeing a PPP 

without being personally affected reported a less positive workplace culture overall and lower 

levels of engagement than those who did not perceive PPPs occurring. If the Government is to 

have an effective, efficient, merit-based civil service then agencies need to take PPPs seriously.

Taking PPPs seriously means communicating the importance of sound personnel management 

practices at all levels of an agency, ensuring that supervisory employees are educated concerning 

the PPPs, monitoring the workplace to detect PPPs, and holding employees accountable when a 

PPP has been committed. But “taking PPPs seriously” does not end there. It also encompasses 

taking the MSPs seriously. From both management and legal perspectives, it is far better to do the 

right thing than to merely refrain from doing the wrong thing. Adhering to the MSPs involves, 
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 16

among other things, establishing personnel policies and practices that promote merit-based hiring, 

compensation, development, and management of employees. It involves training supervisors and 

managers to exercise personnel authority wisely, and not merely legally. And, most important, it 

involves treating people as assets rather than costs or burdens, and treating policies and practices 

designed to implement the MSPs as tools for managing people fairly and effectively.
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 17

Appendix A: 2016 PPPs (Personally Experienced, Observed, or Did Not Occur)

In the past 2 years, an agency official (e.g., supervisor, manager, senior leader, etc.) in my work unit has... 

This has NOT Occurred in my work unit ↓

This has occurred in my work unit, but I was not personally affected by this ↓

I was personally affected by this ↓

...discriminated in favor or against someone in a personnel action based 

upon race

7.8% 12.8% 79.4%

...discriminated in favor or against someone in a personnel action based 

upon age

7.0% 10.7% 82.4%

...discriminated in favor or against someone in a personnel action based 

upon religion 2.0% 3.1% 94.9%

...discriminated in favor or against someone in a personnel action based 

upon sex

6.8% 13.1% 80.1%

...discriminated in favor or against someone in a personnel action based 

upon national origin 2.6% 5.1% 92.3%

...discriminated in favor or against someone in a personnel action based 

upon disabling condition 4.7% 7.6% 87.6%

...discriminated in favor or against someone in a personnel action based 

upon marital status 2.1% 3.2% 94.7%

...discriminated in favor or against someone in a personnel action based 

upon political affiliation 1.4% 2.7% 95.9%

...solicited or considered improper employment recommendations 6.4% 10.6% 83.1%

...obstructed someone’s right to compete for employment 7.6% 10.5% 81.9%

...tried to influence someone to withdraw from competition for a position 

for the purpose of helping or injuring someone else's chances 6.0% 9.4% 84.6%

...tried to define the scope or manner of a recruitment action, or the 

qualifications required, for the purpose of improving the chances of a 

particular person’s right to compete for employment

8.5% 22.1% 69.4%

...advocated for the appointment, employment, promotion, or 

advancement of a relative 2.8% 11.2% 86.0%

...took or threatened to take a personnel action against an employee 

because the employee disclosed a violation of law, rules, or regulations or 

reported fraud, waste, or abuse for employment

6.0% 8.3% 85.7%

...took or threatened to take a personnel action against an employee 

because the employee filed an appeal or grievance 5.9% 13.0% 81.1%

...knowingly violated a lawful form of veterans’ preference or protection 

laws 2.8% 4.2% 93.0%

* Row totals may not equal 100% due to rounding. 
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 18

Appendix B: PPPs and Individual Workplace Culture Items

The table below contains the individual workplace culture questions that were combined into a single item 

for discussion in the research brief and illustrates how differently each question was seen by those who 

experienced one or more PPPs, those who observed one or more PPPs without experiencing any, and those 

who nether experienced nor observed any PPPs.

Workplace Culture

Question PPP Exposure Agree

Neither 

Agree nor 

Disagree Disagree

I feel fully appreciated at 

work

Experienced PPP(s) 23% 21% 55%

Observed PPP(s) 40% 26% 33%

Neither Experienced nor Observed 71% 18% 11%

I am able to share my true 

thoughts and feelings at 

work

Experienced PPP(s) 23% 23% 54%

Observed PPP(s) 38% 27% 36%

Neither Experienced nor Observed 69% 19% 12%

I feel encouraged to try new 

things in my work

Experienced PPP(s) 24% 26% 51%

Observed PPP(s) 41% 27% 32%

Neither Experienced nor Observed 67% 21% 12%

There is a culture of 

openness and support for 

new or different 

perspectives in my work unit

Experienced PPP(s) 26% 19% 55%

Observed PPP(s) 38% 24% 38%

Neither Experienced nor Observed 71% 17% 11%

I feel cared about personally 

at work

Experienced PPP(s) 28% 25% 47%

Observed PPP(s) 41% 28% 31%

Neither Experienced nor Observed 72% 18% 9%

I have an opportunity to 

develop my character in my 

organization

Experienced PPP(s) 28% 33% 39%

Observed PPP(s) 37% 38% 25%

Neither Experienced nor Observed 68% 25% 7%

I am able to openly express 

my concerns at work

Experienced PPP(s) 29% 20% 51%

Observed PPP(s) 44% 21% 36%

Neither Experienced nor Observed 77% 14% 9%

There is a spirit of trust in 

my work unit

Experienced PPP(s) 29% 19% 52%

Observed PPP(s) 38% 22% 40%

Neither Experienced nor Observed 74% 16% 10%

I thrive at work

Experienced PPP(s) 33% 36% 32%

Observed PPP(s) 40% 38% 22%

Neither Experienced nor Observed 70% 23% 7%

I feel valued at work

Experienced PPP(s) 34% 21% 45%

Observed PPP(s) 50% 23% 27%

Neither Experienced nor Observed 81% 12% 7%

* Row totals may not equal 100% due to rounding. 
Perceptions of Prohibited Personnel Practices in the Federal Civil Service

U.S. Merit Systems Protection Board, Office of Policy and Evaluation 19

Workplace Culture 

Question PPP Exposure Agree

Neither 

Agree nor 

Disagree Disagree

I feel comfortable talking 

to my supervisor about 

the things that matter to 

me at work

Experienced PPP(s) 36% 17% 47%

Observed PPP(s) 50% 17% 32%

Neither Experienced nor Observed 82% 10% 8%

There is a culture of 

helping and supporting 

one another in my work 

unit

Experienced PPP(s) 36% 20% 44%

Observed PPP(s) 52% 20% 28%

Neither Experienced nor Observed 81% 11% 8%

I am empowered to do 

my work the way I see 

best

Experienced PPP(s) 40% 21% 39%

Observed PPP(s) 55% 19% 26%

Neither Experienced nor Observed 79% 13% 7%

I feel comfortable being 

myself at work

Experienced PPP(s) 43% 23% 34%

Observed PPP(s) 63% 20% 17%

Neither Experienced nor Observed 84% 12% 5%

There is a spirit of 

friendship and 

camaraderie in my work 

unit

Experienced PPP(s) 43% 19% 38%

Observed PPP(s) 57% 20% 23%

Neither Experienced nor Observed 81% 12% 7%

My perspective is sought 

on important work 

matters

Experienced PPP(s) 45% 17% 37%

Observed PPP(s) 55% 21% 24%

Neither Experienced nor Observed 78% 15% 7%

I like the quality of 

relationships I have with 

my coworkers

Experienced PPP(s) 47% 28% 24%

Observed PPP(s) 61% 26% 13%

Neither Experienced nor Observed 81% 15% 5%

I feel needed and 

depended on at work

Experienced PPP(s) 51% 21% 28%

Observed PPP(s) 64% 19% 16%

Neither Experienced nor Observed 84% 12% 4%

My judgment is trusted 

and relied on at work

Experienced PPP(s) 52% 18% 30%

Observed PPP(s) 67% 17% 16%

Neither Experienced nor Observed 87% 9% 4%

* Row totals may not equal 100% due to rounding.