Prohibited
Personnel Practices
What are "prohibited personnel
practices?"
Twelve prohibited personnel practices, including reprisal
for whistleblowing, are defined by law at § 2302(b) of title 5 of the United States
Code (U.S.C.). A personnel action (such as an appointment,
promotion, reassignment, or suspension) may need to be
involved for a prohibited personnel practice to occur.
Generally stated, § 2302(b) provides that a federal employee
authorized to take, direct others to take, recommend or
approve any personnel action may not:
(1) discriminate against an employee or applicant based on
race, color, religion, sex, national origin, age, handicapping
condition, marital status, or political affiliation;
(2) solicit or consider employment recommendations based on
factors other than personal knowledge or records of
job-related abilities or characteristics;
(3) coerce the political activity of any person;
(4) deceive or willfully obstruct anyone from competing for
employment;
(5) influence anyone to withdraw from competition for any
position so as to improve or injure the employment prospects
of any other person;
(6) give an unauthorized preference or advantage to anyone
so as to improve or injure the employment prospects of any
particular employee or applicant;
(7) engage in nepotism (i.e., hire, promote, or
advocate the hiring or promotion of relatives);
(8) engage in reprisal for whistleblowing – i.e., take,
fail to take, or threaten to take or fail to take a personnel
action with respect to any employee or applicant because of
any disclosure of information by the employee or applicant
that he or she reasonably believes evidences a violation of a
law, rule or regulation; gross mismanagement; gross waste of
funds; an abuse of authority; or a substantial and specific
danger to public health or safety (if such disclosure is not
barred by law and 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 – if so
restricted by law or Executive Order, the disclosure is only
protected if made to the Special Counsel, the Inspector
General, or comparable agency official);
(9) take, fail to take, or threaten to take or fail to take
a personnel action against an employee or applicant for
exercising an appeal, complaint, or grievance right;
testifying for or assisting another in exercising such a
right; cooperating with or disclosing information to the
Special Counsel or to an Inspector General; or refusing to
obey an order that would require the individual to violate a
law;
(10) discriminate based on personal conduct which is not
adverse to the on-the-job performance of an employee,
applicant, or others; or
(11) take or fail to take, recommend, or approve a
personnel action if taking or failing to take such an action
would violate a veterans’ preference requirement; and
(12) take or fail to take a personnel action, if taking or
failing to take action would violate any law, rule or
regulation implementing or directly concerning merit system
principles at 5 U.S.C. § 2301.
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Who can be protected by the OSC
from prohibited personnel practices?
General.
OSC has jurisdiction over prohibited personnel practices
committed against most employees or applicants for employment
in Executive Branch agencies and the Government Printing
Office.
Limited
Jurisdiction; whistleblower protection. OSC has
jurisdiction over allegations of whistleblower retaliation for
employees of -
- the government corporations listed at 31 U.S.C. § 9101;
- the Federal Aviation Administration;
- the Transportation Security Administration (TSA). (For
personnel actions occurring on or after March 1, 2003, all
TSA employees have full 5 U.S.C. § 2302(b)(8) whistleblower
protections in addition to protections under sections (b)(1)
and (b)(9); see below.)
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Can Transportation Security
Administration employees (including security screeners),
within the newly created Department of Homeland Security, file
complaints with OSC?
Yes. For personnel actions
that occur
on or
after March 1, 2003, pursuant to § 883 of the Homeland
Security Act of 2002, all Transportation Security
Administration (TSA) employees may file prohibited personnel
practice complaints with OSC under 5 U.S.C. §§
2302(b)(1)[discrimination-see OSC’s policy on discrimination
complaints below], (b)(8) [retaliation for protected
whistleblowing] and (b)(9) [retaliation for engaging in
protected activities]. OSC will process these complaints
under its regular procedures, including filing petitions with
the Merit Systems Protection Board, if warranted.
With
respect to security screener complaints alleging retaliatory
personnel actions taken
prior to March 1,
2003, the Memorandum of Understanding (MOU) between OSC
and TSA executed on May 28, 2002, will remain in effect.
Under the MOU, TSA security screeners may only file complaints
alleging reprisal for whistleblowing with OSC. The MOU
and
TSA Directive HRM Letter No. 1800-01 provide
the authority under which OSC may investigate whistleblower
retaliation complaints and recommend that TSA take corrective
and/or disciplinary action when warranted. Additional
information on OSC procedures for reviewing security screener
whistleblower complaints under the MOU is available at
https://www.osc.gov/tsa-info.htm. These
special procedures under the MOU, however, apply only to
personnel actions occurring
before March 1,
2003.
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Who is not protected by OSC from
prohibited personnel practices?
OSC has no jurisdiction over prohibited personnel practices
committed against employees of -
- the Central Intelligence Agency, Defense Intelligence
Agency, National Security Agency, and certain other
intelligence agencies excluded by the President;
- the General Accounting Office;
- the Federal Bureau of Investigation; and
- the U.S. Postal Service and Postal Rate Commission.
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How does the OSC handle
prohibited personnel practice complaints?
Complaints
Examining Unit (CEU). The CEU receives complaints filed
with the OSC (see the Forms section of
this site for complaint forms). The unit initially analyzes
all allegations of prohibited personnel practices (as well as
allegations of other activities prohibited by civil service
law, rule or regulation).
When necessary, the CEU contacts the person requesting OSC
action to ensure that CEU clearly understands the nature of
and basis for each allegation. It conducts further inquiry to
the extent necessary to determine whether the allegation
warrants additional investigation.
Persons who have submitted allegations to the CEU will
receive one or more of the following responses:
- a letter acknowledging receipt of their complaint and
identifying the staff member assigned to handle it, with an
information sheet (Form OSC-53)
enclosed explaining how the complaint will be processed by
the CEU;
- a status report after 90 days, and every 60 days
thereafter while the matter is active;
- a letter advising that the matter has been referred to
an OSC Investigation and Prosecution Division for further
inquiry, with an information sheet (Form
OSC-54) about the investigation and
legal review process, (or, as noted below, a letter inviting
the complainant to participate in mediation as an
alternative to investigation);
- a preliminary determination letter, with a final
opportunity for input when the CEU proposes to close a
matter without remedial action or referral to an
Investigation and Prosecution Division; or
- a letter advising that the OSC will take no further
action because it lacks jurisdiction over the matter.
The OSC asks everyone who seeks an investigation of a
possible prohibited personnel practice to select one of three
consent statements (Form
OSC-49) explaining necessary
communications between OSC and the agency involved.
Investigation and
Prosecution Division (IPD). After a thorough initial
examination, the CEU refers matters indicating a potentially
valid claim (under the laws enforced by the OSC) to one of
three IPD units (I, II, or III). Each unit conducts
investigations to review pertinent records, and to interview
complainants and witnesses with knowledge of the matters
alleged. Matters not resolved during the investigative phase
will undergo legal review and analysis to determine whether
the IPD inquiry has established a violation of law, rule or
regulation, and whether the matter warrants corrective action,
disciplinary action, or both. Complainants will continue to
receive 60-day status notices while matters are pending in the
applicable division.
Alternative
Dispute Resolution (ADR) Unit. After CEU has completed
its examination, OSC offers mediation, as an alternative to
investigation, in selected PPP cases. Participation in the OSC
mediation program is completely voluntary for both the
complainant and the employing agency. If both parties agree to
mediate their dispute, the OSC assigns a neutral third party –
a mediator – to facilitate a discussion between the parties to
reach a mutually agreeable resolution to the complaint. For
more information on mediation at the OSC, click on the
Alternative Dispute Resolution link.
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Can the OSC delay a personnel
action pending investigation of the matter?
An individual may request that the Special Counsel seek to
delay, or "stay," an adverse personnel action pending an OSC
investigation. If the Special Counsel has reasonable grounds
to believe that the proposed action is the result of a
prohibited personnel practice, the OSC may ask the agency
involved to delay the personnel action. If the agency does not
agree to a delay, the OSC may then ask the U.S. Merit Systems
Protection Board (MSPB) to stay the action. (The OSC cannot
stay a personnel action on its own authority.)
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How can the OSC remedy a
prohibited personnel practice?
General.
Current and former federal employees and applicants for
federal employment may report suspected prohibited personnel
practices to the OSC. The matter will be investigated, and if
there is sufficient evidence to prove a violation, the OSC can
seek corrective action, disciplinary action, or both.
Alternatively, parties in selected cases may agree to mediate
their dispute in order to reach a mutually agreeable
resolution of the PPP complaint.
Corrective
action. The OSC may enter into discussions with an
agency at any stage of a pending matter in pursuit of a
resolution acceptable to all parties. The OSC follows a policy
of early and firm negotiation to obtain appropriate corrective
action (and/or disciplinary action) for apparent
violations.
If an agency fails to remedy a prohibited personnel
practice upon request by the OSC, corrective action may also
be obtained through litigation before the MSPB. Such
litigation begins with the filing of a petition by the OSC,
alleging that there are reasonable grounds to believe that a
prohibited personnel practice has occurred, exists, or is
about to occur. Corrective actions that can be ordered by the
MSPB include job restoration, reversal of suspensions and
other adverse actions, reimbursement of attorney's fees, back
pay, medical and other costs and damages.
Ref: 5 U.S.C. § 1214
Note:
Pursuant to 5 U.S.C. § 1221 , current or former federal
employees and applicants who allege that they were subjected
to any personnel action because of whistleblowing may seek
corrective action in an appeal to the MSPB. Such an appeal is
known as an "individual right of action" (IRA). By law, the
employee or applicant must seek corrective action from the OSC
before filing an IRA. The IRA may be filed—
- after the OSC closes a matter in which reprisal for
whistleblowing has been alleged; or
- if the OSC has not notified the complainant within 120
days of receiving an allegation of whistleblower reprisal
that it will seek corrective action.
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; or
- gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety.
Procedures for filing an IRA are set forth in MSPB
regulations at 5 C.F.R. Part 1209. (In considering an
IRA, it should be noted that the MSPB may refuse to take
jurisdiction over any matters not specifically raised before
the OSC.)
Disciplinary
action. The OSC may seek disciplinary action against
any employee believed to be responsible for committing a
prohibited personnel practice. The OSC begins a disciplinary
action case by filing a complaint with the MSPB, charging an
employee with the commission of a prohibited personnel
practice, and seeking disciplinary action against that person.
Rights of employees against whom the OSC seeks disciplinary
action in these cases are set forth in MSPB regulations,
at
5 C.F.R. Part 1201, Subpart D. Individuals
found by the MSPB to have committed a prohibited personnel
practice are subject to removal, reduction in grade, debarment
from federal employment for up to five years, suspension,
reprimand, or fine of up to $1,000.
In the alternative, at any time during its investigation of
a matter, the OSC may authorize the agency involved to take
disciplinary action against an employee believed to be
responsible for committing a prohibited personnel
practice. Pursuant to 5 U.S.C. § 1214(f) , during any OSC
investigation under title 5, an agency may not take
disciplinary action against any employee for any alleged
prohibited activity under investigation, or for any related
activity, without approval from the OSC.
Ref: 5 U.S.C. § 1215
Intervention. The
Special Counsel may intervene as a matter of right, or
otherwise participate in most proceedings before the MSPB. The
Special Counsel may not intervene in certain proceedings
(individual rights of action brought under 5 U.S.C. §1221, or matters otherwise
appealable to the MSPB under 5 U.S.C. § 7701) without the consent of the
person initiating the proceeding.
Ref: 5 U.S.C. § 1212(c)
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How can a person file a complaint
of prohibited personnel practices or other prohibited
employment activity with the OSC?
Filers must use Form OSC-11 (Complaint of Possible
Prohibited Personnel Practice or Other Prohibited Activity) to
submit allegations of prohibited personnel practices or other
prohibited employment activity to OSC. Form OSC-11 may
be printed from this Web site (see Forms). The OSC
will not process a complaint submitted in any format other
than a completed Form OSC-11 (except for a complaint alleging
only a Hatch Act
violation).
Except for complaints alleging only a Hatch Act allegation,
OSC will not process a complaint submitted in any format other
than Form OSC-11. If a person uses any another format to file
a complaint, the material received will be returned to the
filer with a blank Form OSC-11 to complete and return to the
OSC. The complaint will be considered to be filed on the date
on which the OSC receives the completed Form
OSC-11.
Complaints of prohibited personnel practices or
other prohibited employment activities within the
investigative authority of the OSC should be sent to the U.S.
Office of Special Counsel, Complaints Examining Unit, 1730 M
Street, NW, Suite 201, Washington, DC 20036-4505.
Ref: 5 C.F.R. § 1800.1
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Can employees seek relief from
the OSC for a prohibited personnel practice if they are
covered by a collective bargaining agreement?
Pursuant to 5 U.S.C. § 7121(g), employees covered by a
collective bargaining agreement must choose one of three
avenues: an OSC complaint, an MSPB appeal, or a grievance
under the collective bargaining agreement.
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What is the OSC's policy about
allegations of discrimination?
Race, color,
religion, sex, national origin, age, handicapping
condition. The OSC is statutorily authorized to
investigate allegations of discrimination based on race,
color, religion, sex, national origin, age, or handicapping
condition (see (1), under "Prohibited Personnel Practices,"
above). However, procedures for investigating such complaints
have already been established in federal agencies and the
Equal Employment Opportunity Commission (EEOC). Therefore, to
avoid duplicating those investigative processes, the OSC
follows a general policy of deferring complaints involving
discrimination to those agencies' procedures.
Sexual
orientation, marital status, political affiliation.
Allegations of discrimination based on sexual orientation,
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.
Ref: 5 C.F.R. § 1810.1
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What other violations does the
OSC have jurisdiction to investigate?
The OSC is authorized by law to investigate and seek
appropriate corrective and disciplinary action for—
- activities prohibited by any civil service law, rule, or
regulation (including any activity relating to political
intrusion in personnel decision making);
- arbitrary or capricious withholding of information under
the Freedom of Information Act; and
- involvement by any employee in any prohibited
discrimination found by a court or administrative authority
to have occurred in the course of any personnel action.
The OSC also has authority to investigate and litigate
cases referred by the Department of Labor, involving the
reemployment rights of veterans and reservists returning to
the federal workplace after active duty.
Ref: 5 U.S.C. § 1216; 38 U.S.C. § 4324
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What do I do if I believe my
veterans preference rights were violated?
You should file a complaint with the U.S. Department of
Labor, Veterans Employment and Training
Service.
The Veterans Employment Opportunities
Act of 1998 (VEOA), 5 U.S.C. § 3330 et seq., created a new
avenue of administrative redress specifically for a preference
eligible who alleges that a federal agency violated such
individual’s rights under any statute or regulation relating
to a veteran’s preference eligible.
Under the
VEOA, in order to seek corrective action, a preference
eligible is to file a written complaint with the U.S.
Department of Labor, Veterans Employment and Training Service
(VETS), within 60 days of the alleged violation. VEOA requires
the Secretary of Labor, through VETS, to investigate the
complaint and, upon determining that a violation occurred, to
attempt to resolve the complaint by making reasonable efforts
to ensure that the agency complies with the statute or
regulation relating to veteran’s’ preference. If the Secretary
is unable to resolve a complaint within 60 days, the Secretary
is to provide notification of an unsuccessful effort to
resolve the complaint to the complainant.
In light of
the VEOA, OSC does not investigate allegations of violations
of veterans’ preference rights for corrective action purposes.
(We still investigate such allegations for possible
disciplinary action, however.) Thus, you should file a
complaint alleging a violation of a veterans’ preference right
with VETS, not OSC.
Additional Information about VETS
can be found at https://www.dol.gov/vets/welcome.html.
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Are federal employees required
to cooperate with OSC investigations?
Title 5 of the U.S. Code authorizes the OSC to issue
subpoenas for documents or the attendance and testimony of
witnesses. During an investigation, the OSC may require
employees and others to testify under oath, sign written
statements, or respond formally to written questions.
Federal employees are also required to provide to the OSC
any information, testimony, documents, and material, the
disclosure of which is not otherwise prohibited by law or
regulation, in investigations of matters under civil service
law, rule, or regulation. The same rule requires federal
agencies to make employees available to testify, on official
time, and to provide pertinent records to the OSC.
Ref: 5 U.S.C. § 1212(b); Civil Service Rule
5.4
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What legal responsibilities do
federal agencies have to prevent prohibited personnel
practices?
Section 2302(c) of title 5 requires federal agency heads,
and officials with delegated authority for any aspect of
personnel management, to:
- prevent prohibited personnel practices, including
reprisal for whistleblowing;
- comply with and enforce civil service laws, rules and
regulations; and
- ensure (in consultation with the OSC) that federal
employees are informed of their rights and remedies.
The OSC has developed a training guide for use by agencies
in carrying out the duty of informing employees of their
rights and remedies under title 5. On request, the OSC may
also make speakers
available to assist in conducting such training.
