In light of recent news, it is important for federal employees to know and understand that they do not relinquish their constitutional rights as a condition of employment with the federal government, and in fact have constitutionally protected property rights to their job that private sector employees do not have. As an attorney specializing in representing federal employees, including whistleblowers and those facing adverse actions like removal, the uptick in uncertainty and fear that federal employees are feeling is apparent. While this is by no means a comprehensive list of rights, I have tried to identify those more relevant to today’s climate.
The Supreme Court established, nearly 50 years ago, in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, (1968), that “citizens do not surrender their First Amendment rights by accepting public employment,” and that retaliation for exercise of these rights is illegal. This is still the law of the land, and this principle was upheld as recently as 2014, where the Supreme Court, in Lane v. Franks, 134 S. Ct. 2369, 2377 (2014), explained:
“There is considerable value . . . in encouraging, rather than inhibiting, speech by public employees. For ‘[g]overnment employees are often in the best position to know what ails the agencies for which they work.’ Waters v. Churchill, 511 U.S. 661, 674 (1994). ‘The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.’ San Diego v. Roe, 543 U.S. 77, 82 (2004).”
The court also clarified that the First Amendment protects public employees’ speech on matters of “public concern” if the speech is made by that employee as a private citizen, e.g., if made through your own personal social media accounts after business hours. Matters of “public concern” include those relating to any matter of political, social or other like concerns to the community. This means that tweets federal employees have been sending out on the “alt” twitter accounts that have been popping up is First Amendment protected speech.
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If an employee is making the speech as part of their job duties or on behalf of the government, then the speech is likely outside of the protections of the First Amendment, and it possibly can be the subject of a disciplinary action unless it is protected by other laws, such as those protecting whistleblowers.
The whistleblower protection laws make it illegal for an agency to take an adverse action against a federal employee because of a “protected disclosure” made by that employee. The Whistleblower Protection Enhancement Act (WPEA) defines a “protected disclosure” as a disclosure of information a federal employee “reasonably believes evidences a violation of any 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.”
The disclosure can be made within the scope of the employee’s job duties or while the employee was off duty. However, there are certainly limits on whistleblower protection that federal employees need to be aware of to avoid getting in trouble. For example, employees who work for intelligence agencies can usually only make protected disclosures internally, e.g. to the agency’s Office of Inspector General or to Congress.
Also, the Office of Special Counsel (OSC) has come out and said that the “gag orders” rumored to have been issued at some agencies violate the WPEA unless they include required language informing employees that their statutory right to blow the whistle supersedes the terms and conditions of the nondisclosure policy.
The Hatch Act limits political activities of federal employees, and is rarely given a second thought after elections are held. But this is not an ordinary time, and federal employees would be wise to be mindful of the Hatch Act, especially while using social media or attending protests. The good news is that it is usually pretty easy to avoid violating the Hatch Act by: 1) not engaging in political activity while on duty and while in the workplace, or in an official capacity at any time; and 2) not soliciting or receiving political contributions at any time. “Political activity” is any activity directed at the success or failure of a political party, partisan political group, or candidate in a partisan race. “Political activity” is not activity opposing an administration’s policies or agenda or even pending legislation. The First Amendment protects your right to speak on these matters of concern, even publicly or via social media (including on your own Facebook page or on an “alt” twitter account).
Federal employees can be fired for a charge such as insubordination for failing to comply with a lawful order or policy. The general rule for federal employees to keep in mind when assessing whether to comply with a directive you disagree with is, “comply now, complain later,” even where there is substantial reason to believe that an order or policy is improper. The Merit Systems Protection Board (MSPB) has held that the only exceptions to complying with a lawful order are in “extreme or unusual circumstances” in which the employee would be placed in a clear danger or which would cause irreparable harm to the employee.
The other exception is when the directive is in fact illegal, not just “improper” or disagreeable. 5 USC Section 2302(b)(9)(D) makes it a prohibited personnel practice for an agency to “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— …(D) for refusing to obey an order that would require the individual to violate a law[.]” Thus, if your agency management disagrees with the judicial branch over the legality of a directive, you should ultimately be permitted to keep your job if you comply with the judicial branch’s determination, although there are no guarantees that your agency will not take action against you, even if you can ultimately prevail on appeal.
The Supreme Court has held that federal employment is Constitutionally protected property, meaning that it cannot be taken away without due process. At a minimum, before taking an adverse action like termination, an agency must issue a notice to the employee identifying the charge(s) against them. The employee has the right to see the evidence against them and the right to reply to the charge(s), as well as the right to have counsel represent them. If you are terminated because of making speech protected by the first amendment, whistleblowing, or refusing to comply with an illegal order, you will also be able to bring these claims through appropriate channels.
At the end of the day, these rights are what separate federal employees from private sector employees, so DO NOT waste the opportunity to exercise these rights and to ensure you are afforded these rights.
Debra D’Agostino is a founding partner with the Federal Practice Group.