Challenge a Federal Hiring Decision
What if any are options to challenge a federal hiring or denial of a Federal employee?
Thank you for your question.
Challenging a federal hiring decision or a denial of federal employment involves a structured process. Federal employment decisions are subject to rules and regulations that govern the hiring process and protect the rights of both applicants and federal agencies.
It's crucial to understand that the specific process for challenging a federal hiring decision can vary considerably, depending on the agency, the type of position, and the circumstances surrounding the decision. You may need to consult with an attorney or legal advisor who specializes in federal employment law for guidance tailored to your situation. Keep in mind that filing complaints or appeals often involves strict timelines, so it's essential to act promptly if you believe your rights have been violated.
Here are some options you can consider if you believe you have been unfairly denied federal employment or believe there was a violation of federal hiring regulations:
Start by contacting the HR department of the federal agency that made the hiring decision and request feedback on the decision. Seek clarification on the reasons for the denial and request a reconsideration of your application.
Many federal agencies have an internal appeals process. If your request for reconsideration is denied, you may be able to file an appeal within the agency. Follow the specific procedures outlined by the agency for filing an appeal, including deadlines and required documentation.
Merit Systems Protection Board (MSPB):
If your appeal within the agency is unsuccessful or if the agency does not have an appeals process, you can file an appeal with the Merit Systems Protection Board (MSPB).
The MSPB handles cases related to federal employment, including issues of hiring and termination. Be aware that MSPB appeals can be complex, and it's advisable to seek legal representation.
Office of Special Counsel (OSC):
The Office of Special Counsel is an independent agency that investigates and takes corrective action on certain types of prohibited personnel practices, such as discrimination and retaliation, in federal employment. They are responsible for investigating and prosecuting violations of the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act. OSC also protects the reemployment rights of federal employee military veterans and reservists under the Uniformed Services Employment and Reemployment Rights Act and investigates arbitrary withholding of information subject to release under the Freedom of Information Act.
If you believe that your hiring denial involved prohibited personnel practices, you may file a complaint with the OSC.
The OSC is authorized to investigate allegations of discrimination based on race, color, religion, sex, national origin, age, or handicapping condition. However, procedures for investigating such complaints have separately been established in federal agencies and the Equal Employment Opportunity Commission (EEOC). Therefore, OSC follows a general policy of deferring complaints involving discrimination to those agencies’ procedures. Allegations of discrimination based on marital status and political affiliation are not within the jurisdiction of the EEOC. Such allegations, however, may be prohibited personnel practices or other violations of law subject to investigation by the OSC.
A federal employee or applicant for employment engages in whistleblowing when the individual discloses to the Special Counsel or an Inspector General or comparable agency official (or to others, except when disclosure is barred by law or by executive order to avoid harm to the national defense or foreign affairs) information which the individual reasonably believes evidences the following types of wrongdoing:
- 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.
The Whistleblower Protection Enhancement Act of 2012 (PL 112-199) strengthened these legal protections in several ways, including removing a prior limitation on protection for those who disclose wrongdoing as part of their job, who disclose wrongdoing to a supervisor who participated in the wrongdoing disclosed, or who are not the first to make the disclosure. Protection was added for challenging the consequences of government policy decisions and for disclosure of critical infrastructure information.
THE HATCH ACT
The Hatch Act regulates partisan political activity by federal employees, with tighter restrictions applying in certain agencies, primarily those involved in law enforcement and intelligence work. OSC’s Hatch Act unit provides advisory opinions, enabling individuals to determine whether their contemplated political activities are permitted under the act, and investigates potential violations. Depending on the severity of a violation, OSC will either issue a warning letter to the employee, or prosecute a violation before the MSPB. Penalties can range up to dismissal.
The Equal Employment Opportunity Commission handles discrimination claims against federal agencies. If you believe you were denied federal employment due to discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information, you can file a complaint with the EEOC.
Note that federal employee EEO complaints are processed under rules different from those applying to the private sector. Generally, federal employees must exhaust the administrative process before pursuing their complaints in court.
The Federal Labor Relations Authority provides policies and guidance relating to federal sector labor-management relations and resolves disputes under Title VII of the Civil Service Reform Act of 1978, known as the Federal Service Labor-Management Relations Statute.
The Authority is a quasi-judicial body with three full-time members who are appointed for five-year terms. The Authority adjudicates disputes arising under the statute, deciding cases concerning the negotiability of collective bargaining agreement proposals, appeals concerning unfair labor practices and representation petitions, and exceptions to grievance arbitration awards.
For individual employees, FLRA’s role is primarily as an appellate agency for grievances.
FLRA’s authorities apply only in unionized settings in the federal government, which make up a majority of the workplace (although union-represented employees aren’t required to pay union dues and most don’t). Unions and agencies may pursue unfair labor practice complaints against each other before FLRA, and the Authority also decides disputes over the negotiability of proposals raised in bargaining.
FLRA’s Office of General Counsel investigates and may prosecute unfair labor practice complaints filed with the FLRA, actively encouraging the use of alternative dispute resolution. The office reviews appeals of a regional director’s decision not to issue an unfair labor practice complaint and establishes policies and procedures for processing unfair labor practice charges.
The Federal Service Impasses Panel resolves impasses between federal agencies and unions representing federal employees arising from negotiations over conditions of employment.
The Foreign Service Labor Relations Board administers the labor-management relations program for Foreign Service employees. The Foreign Service Impasse Disputes Panel resolves impasses in those agencies involving Foreign Service personnel.
There are two types of grievances, administrative and negotiated. The former type applies to all employees of agencies that have established such procedures—virtually all of them—while the latter type applies only to employees who are within union bargaining units.
Administrative grievance procedures range from very informal to formal among different agencies and the subject matter covered varies as well. Commonly, administrative grievance procedures assure review by someone other than the supervisor who made the contested decision—usually, but not always, someone at a higher level—and many provide for an appeal to a higher level as well. But generally decisions are not appealable to bodies outside the agency.
Negotiated grievance procedures must be present in all federal labor-management contracts. The two parties also negotiate over the scope of matters to be subject to the process. Often this includes matters that an employee otherwise might be allowed to challenge by filing an appeal at the Merit Systems Protection Board or at the Equal Employment Opportunity Commission or by filing a complaint with the Office of Special Counsel.
The Office of Personnel Management is the federal government’s human resources agency. OPM supports agencies with personnel services and policy leadership including staffing tools, guidance on labor-management relations, preparation of future leaders, compensation policy development, and programs to improve workforce performance. The agency manages the federal retirement system, as well as oversees insurance programs, and operates job listing services, among other functions.
POSITION CLASSIFICATION APPEALS
If you believe your position description does not accurately describe your work, first discuss this with your supervisor. If your supervisor believes that your position should be reevaluated, he or she can request a review by the personnel office. Further, you may appeal the classification of your position to your agency at any time. You may seek a change in the grade, occupational series, and sometimes the title of your position. You also may seek to have your general schedule position changed to the wage system or vice-versa.
You may not appeal the content or accuracy of your official position description, the accuracy of a classification standard, an agency’s proposed classification decision, the classification of positions to which you are not officially assigned, or the classification of positions to which you are detailed or temporarily promoted for a period of less than two years.
First, you should make sure that your position description identifies the major duties you are assigned and perform. If the position description is significantly inaccurate, you should try to resolve the problem by discussing it with your supervisor and perhaps a representative of your personnel office. If you are unable to resolve the problem at that level, use your agency’s negotiated or administrative grievance procedure. If you are unable to obtain what you believe is an accurate position description through the grievance procedure, you may appeal to the OPM.
If you are a general schedule employee, you may appeal at any time to your agency or directly to OPM, although you may not appeal to both at the same time. You also may make an appeal to OPM through your agency. Your agency must act on your appeal within 60 days or forward it to OPM for action.
If you are a wage system employee, you must first appeal to your agency. If you are dissatisfied with your agency’s decision, you may appeal to OPM. Your appeal to OPM must be filed within 15 calendar days of the date you receive your agency’s decision. You must specify that part of your agency’s decision with which you disagree.
You may have a representative (designated in writing) help you prepare and present your appeal case, but the representative cannot be someone with management or classification authority over your position. Submit to the Classification and Pay Claims Manager, Room 6484, Office of Merit System Audit and Compliance, Office of Personnel Management, 1900 E St., NW, Washington, D.C. 20415, phone (202) 606-7948.
COMPENSATION, OVERTIME, LEAVE AND OTHER CLAIMS
OPM has the authority to settle claims involving federal employees’ compensation (including overtime) and leave, deceased employees’ compensation, and proceeds of canceled checks for veterans’ benefits payable to deceased beneficiaries.
A claim must be submitted by the claimant in writing and must be signed by the claimant or by the claimant’s representative. While no specific form is required, the request should describe the basis for the claim and state the amount sought. The claim should also include:
- the name, address, telephone number, and facsimile machine number, if available, of the claimant; the name, address, telephone number, and facsimile machine number, if available, of the agency employee who denied the claim;
- a copy of the denial of the claim, issued by the employing agency; and,
- any other information, which the claimant believes OPM should consider.
At the discretion of the agency, the agency may forward the claim to OPM on the claimant’s behalf. The claimant is responsible for ensuring that OPM receives all the information requested above.
A claim filed by a claimant’s representative must be supported by a duly executed power of attorney or other documentary evidence of the representative’s right to act for the claimant. Submit to the Classification and Pay Claims Manager, Room 6484, Office of Merit System Audit and Compliance, Office of Personnel Management, 1900 E St., NW, Washington, D.C. 20415, phone (202) 606-7948.
Alternative Dispute Resolution
Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.
ADR increases the parties’ opportunities to resolve disputes prior to or during the use of formal administrative procedures and litigation (which can be very costly and time-consuming). It typically is not intended to replace the more traditional approaches and it can provide long term solutions to employee-employer conflicts through stakeholders’ participation and buy-in. In contrast, traditional dispute resolution procedures often impose a solution handed down by a third party, where neither party walks away satisfied, and the disputing parties’ conflict continues or increases.
In employee and labor relations and equal employment opportunity disputes, ADR has most commonly taken the form of mediation. However, there are many other options available including conciliation, cooperative problem solving, dispute panels, facilitation, fact finding, interest-based problem solving and bargaining, settlement conferences, ombudsing, peer review, and alternative discipline. Alternative discipline as an ADR technique involves taking some type of action in lieu of traditional discipline to correct misconduct without resorting to more costly formal procedures and litigation. Parties can use any of these ADR techniques, combinations of them, or others. Note: Agencies may not agree in settlements to remove or alter information about an employee’s performance or conduct from the employee’s personnel files.
A number of recent initiatives by Congress and the agencies engaged in resolving disputes in the federal workplace have encouraged the use of ADR methods. These include:
Equal Employment Opportunity Commission — All federal agencies are required to establish or make available an ADR program during the pre-complaint and formal complaint stages of the EEO process. The EEOC regulations do not require federal agencies to conduct ADR in every EEO case; rather, agencies have the discretion as to which EEO cases are offered ADR. Complainants may not file a new complaint based on the agency’s refusal to offer ADR in their particular case. See www.eeoc.gov/federal-sector/federal-sector-alternative-dispute-resolution.
Federal Labor Relations Authority — The Authority has an agencywide program known as the Collaboration and Alternative Dispute Resolution Program (CADR). This program joins all three independent components of the FLRA—the Authority, the Office of General Counsel, and the Federal Service Impasses Panel—to reduce the cost of conflict in the federal workplace. See www.flra.gov/fsip_drpg.
Merit Systems Protection Board — Administrative judges at the regional level may initiate attempts to settle the appeal informally at any time. As part of the Board’s settlement program, the judge assigned to the case uses standard language requesting the parties to attempt to resolve and settle the matter in the judge’s first correspondence after an appeal is filed. After being assigned a case, some judges will immediately contact the parties by telephone to initiate settlement discussions. See www.mspb.gov/appeals/mediationappeals.htm.
Office of Special Counsel — OSC operates a mediation program in which OSC chooses complaints that seem appropriate for mediation and if the parties agree, the case will be referred to a neutral mediator trained in civil service law. The mediator will not be able to impose a settlement but could help the two sides reach one. If no settlement is reached, the regular complaint investigation process takes over. See www.osc.gov/Services/Pages/ADR.aspx
As a last resort, you may consider taking legal action in federal court. This option is typically pursued after exhausting administrative remedies. Consult with an attorney experienced in federal employment law to determine the viability of your case.
I hope this information is helpful. If this is not what you need, or if you should require any further assistance, please let us know.
Lead Government Information Reference Associate
University of North Texas Libraries