Whether its the war in Ukraine, the war in Israel, the House speaker race or any of a zillion controversial topics, everyone has an opinion. As federal employees, can you express your opinions out loud and not get fired for it? For advice, theFederal Drive with Tom Teminspoke with federal employment attorney John Mahoney.
Tom Temin This question, I guess, is coming up in a lot of offices. It’s not exactly Hatch Act issue, but if you loudly and express an opinion and Lord knows there’s some controversial opinions going around, what can feds do and what should they not do?
John Mahoney Well, they should not be engaging in political speech at work, that’s the bottom line. That’s the easy answer, because it does approach that Hatch Act violation that they are found to be engaging in partizan political activity while being paid by the United States to be an employee.
Tom Temin Well, if it’s say this side is right or that side is right in a particular conflict that’s considered political, do you think?
John Mahoney Depends on the context. Obviously, people can express their views on issues of national importance, for sure. But if it’s labeled in a partizan way, that can get people in trouble and it’s certainly something to avoid both in the office while at work and also on social media. If you’re a federal employee. That is an area where feds are meeting a lot of problems with disciplinary actions for statements made on social media pages.
Tom Temin Yeah, and I guess extremist type of views or views that are anti one group or another that could be taken as out of bounds also, I imagine.
John Mahoney Correct. It’s definitely an area that people need to be watchful of, and certainly, they can face Hatch Act violations. They can face conduct unbecoming a federal employee allegations that stemmed from social media posts, whether they be political or just critical of their supervisors, etc.. So it’s something that needs to be aware of and be careful not to get in the mix up.
Tom Temin But they could be facing disciplinary action, separation or leave or even firing, I guess, if they go too far.
John Mahoney Sure. Now, the way it works, obviously, if we’re talking about a tenured federal employee, a permanent career status, federal employee. If their agency, believes that they have engaged in some kind of misconduct, typically there is some type of investigation, whether it’s an inspector general investigation, a management investigation. Some agencies have OPR, Office of Professional Responsibility, a lot of the law enforcement agencies do. So there is typically an investigation that the agencies will engage in. Traditionally, under the Privacy Act, they were supposed to come to the subject of investigation to the greatest extent practicable. The statute still says that. But unfortunately, that has been somewhat gutted by court decisions. So effectively at this point, to say that the law is as long as the agencies eventually come to the subject and present the allegations to them and give them an opportunity to respond orally and in writing to any written proposed disciplinary action, that’s what the due process requirement is. They have to be given written notice of the allegations, an opportunity to respond orally and in writing and a written decision. And if the decision leads to a suspension of 15 calendar days or worse, demotion grade or removal, most federal employees can file an appeal with the Merit System Protection Board short of 15 calendar days to either have to file a grievance or an Office of Special Counsel complaint or EEO complaint.
Tom Temin Right. So the best thing is not to get into a situation like that in the first place. Fair to say.
John Mahoney Exactly. Definitely better to avoid problems than try to fight your way out of the bad once you’re in it.
Tom Temin We’re speaking with federal employment attorney John Mahoney of Washington. And suppose a furlough should happen as a result of a federal government lapse in funding, which people are worried about now between now and Nov. 17, when the current continuing resolution runs out. Any change in the rules for speech and posting if you’re on furlough?
John Mahoney Well, still not a good idea to engage in political speech if you’re a federal employee, especially if you’re publishing it on social media. It can be used even if it doesn’t rise to the level of a Hatch Act violation. It could be considered conduct unbecoming a federal employee. So it’s definitely something to avoid. Obviously, a lot of federal employees generally are concerned about the potential shutdown. We’ve had five major shutdowns since I’ve been doing this for a living. They can result in MSPB appeals over the furloughs if they’re 30, less than 30 days at length. That’s not a very good thing to appeal. Ultimately, the chances of success are pretty limited there unless there’s a proven prohibited personnel practice involved. So I wouldn’t recommend federal employee file, MSPB appeals over furloughs. Eventually, hopefully, if the budgets are ultimately passed and people go back to work, they should be able to get back pay for the furlough period that they were off on government shutdown. So eventually Congress will get their act together and pay back pay to the people who have been furloughed. Obviously, the essential government employees are going to have to work through the shutdown if there is one, and not get paid until ultimately a budget is passed. It’s a it’s a difficult period for federal employees and they’re sort of used as a pawn in the political struggles on the Hill. And it really does impact people’s lives if they lose 30 days pay and they don’t get it back for 90 days or thereafter, that’s a lot of money.
Tom Temin And if people engage in speech, that’s unbecoming during a furlough. Perhaps it’s because they’re bored and they need work while they’re not working. And so maybe go over what you can do for employment, alternative employment while you’re on furlough that will protect your federal position and that doesn’t present a conflict of interest. What kinds of work can people do?
John Mahoney Yeah, so people need to get outside employment authorization from their principal employing agency before they launch into outside work of any kind. So it does become difficult oftentimes, depending on what type of job the employee has, if it’s somewhat sensitive or cleared or law enforcement in nature. Agencies typically don’t allow those people to have outside employment if the agency is presented with the option of the employee working outside employment, then that becomes a difficult question is what happens when the furlough is over and Congress gives people the backpay and they’ve earned money in the interim on the outside, do they have to pay back? Is it mitigated or reduced by the amount of pay they earned in the private sector? So it gets complicated in terms of outside employment.
Tom Temin Yeah, I mean, outside employment in your field, say you’re an attorney or something for the Justice Department and you work for a law firm or something that could be a problem. But what if you go to work for Home Depot just to do something on weekdays and they pay you by the hour?
John Mahoney Yeah. Generally, the best approach is for the employee to go to their agency. And seek authorization for the outside employment. I don’t see a problem with someone working at Home Depot if they’re a federal employee. But there are political issues involved with lobbying by outside corporations to the government, and that could create conflicts of interest. So it’s very important that prior to starting the outside employment position that the employee seek and obtain approval on that by that federal agency to do that.
Tom Temin Those approvals then, are not blanket approvals for simply working outside the agency, but they are required specifically for each particular external position you might take.
John Mahoney Yeah, that is the best approach. You don’t want to accidentally fall into a situation where you’re securing outside payment while you’re supposed to be an employee of the federal government or potentially using government equipment or time or resources to a be outside employment. So it gets a little tricky. The best approach is to bring it to your supervisors, the idea of the outside employment and have it cleared by the ethics people within the agency before you start the job.
Tom Temin And sometimes people are furloughed in their view, for something other than a shutdown. What do you do if you’re furloughed and you believe it was a form of retaliation or you’re being discriminated against, then what?
John Mahoney Sure. I’ve handled cases like that. I represented, I won’t name the name of the group, but anyway, I represented the case before the Court of Appeals for the Federal Circuit on the furloughs, last government shutdown. And the result is that unless the person can prove a prohibited personal practice under 5 USC 2302(b), generally furloughs are not particularly targeted at any one particular federal employees, they apply across the board to people who are nonessential. So it’s a very hard case to prove that when the vast majority of federal employees are furloughed due to a shutdown, that this one particular employee was actually furloughed for a prohibited personnel practice reason. It’s a very difficult case to win.
Tom Temin Yeah, because you have to do that proof and that’s paperwork and time. I mean, how long does it take? Sometimes these can be months long processes.
John Mahoney Yeah. And MSPB appeal from front to back through a hearing and a petition for review can take literally years.
Tom Temin Yeah. Wow. So you really have to have persistence and you want the job badly or it becomes a matter of maybe a sense of justice that makes people pursue so long.
John Mahoney Yeah, certainly federal employees have a strong sense of justice. That’s why they’re in this business of public service. So they do tend to want to die on the stake for particular justice positions that they take on things. But you got to be smart, you got to be cost effective and efficient in how you decide to handle prohibitive personnel practice cases. Otherwise, they can cost hundreds of thousands of dollars and take years to litigate.