Sponsored

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm that specializes in DC, Maryland, Virginia, federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry

The U.S. Office of Special Counsel (OSC) investigates many different types of issues. OSC’s authority comes from several federal laws. The primary mission of the OSC is to protect federal employees and applicants from Prohibited Personnel Practices (PPP)s. The OSC has been in the news lately for its defense of probationary federal employees who were recently terminated.

What are Prohibited Personnel Practices?

The OSC’s primary mission is to safeguard the merit system by protecting federal employees and applicants from PPPs, especially reprisal against whistleblowing. The OSC is in charge of investigating many different areas of law. The 14 PPPs that the OSC investigates include:

1. Discrimination: Complaints about discrimination on race, color, religion, sex, national origin, age, disability (or handicapping condition), marital status, or political affiliation;
2. Inappropriate Recommendations: Considering inappropriate recommendations based on political connections or influence;
3. Coercing Political Activity: (Hatch Act cases) Engaging in, or coercing others to engage in the support of political candidates;
4. Obstructing Competition for Employment: Agency officials are barred from intentionally deceiving or obstructing others from competing for federal employment;
5. Influencing Withdrawal from Competition: Similar to obstruction, it is illegal for an agency official to improperly influence an individual to withdraw from federal employment competition in order to benefit or disadvantage another person’s employment prospects;
6. Granting Unauthorized Advantage: Also similar to influence or obstruction, federal agency officials are prohibited from granting unauthorized advantages to benefit others;
7. Nepotism: The unlawful hiring or promotion of a relative;
8. Whistleblower Retaliation: One of the most important PPPs. This involves retaliation taken against a federal employee for their disclosure of: (1) a violation of law, rule, or regulation; (2) gross mismanagement; (3) gross waste of funds; (4) an abuse of authority; or (5) a substantial and specific danger to public health or safety. In many instances, these types of cases can later be taken to the Merit Systems Protection Board (MSPB);
9. Other Types of Retaliation: Retaliation for filing a grievance, giving testimony, cooperating with the OSC or Inspector General, or refusal to obey an unlawful order;
10. Other Types of Discrimination: This section prohibits employees from penalizing employees for conduct that has not adversely impacted their performance;
11. Veterans’ Preference: Federal agencies are barred from taking actions that would violate veterans’ preference requirements.
12. Violating Rules That Implement a Merit System Principle: This is a catch-all provision. This PPP bars federal agency officials from taking–or failing to take– a personnel action that violates any other civil service law or regulation. This type of violation could be applied to most OSC complaints.
13. Imposing Nondisclosure Agreements that Bar Whistleblowing: In the past, some federal agencies, as part of settlement agreements with federal employees, have attempted to bar them from speaking with OSC or Congress about their complaints. This PPP makes any attempt by an agency to do so illegal.
14. Accessing Medical Records in Furtherance of Another PPP: Federal officials are prohibited from accessing the medical records of other federal employees or applicants to facilitate a violation of any of the other 13 PPPs. This PPP is not as common as some others.

How Does the OSC Investigate PPP Complaints?

When an individual files an OSC complaint, the OSC will open a file for investigation. The individual filing the complaint will get a notice from the OSC that a complaint has been opened. The level of investigation conducted varies depending on the facts of the case. The OSC investigates these claims and has the ability to prosecute violations of PPPs by obtaining an agency agreement or by seeking action by the Merit Systems Protection Board (MSPB).

How Can OSC Enforce Their Findings?

If the OSC makes a determination that a PPP complaint should be prosecuted, then they can seek a stay of the personnel action. They can also seek corrective action. The OSC will send a letter to the federal agency asking them to resolve a violation of law. For example, if a complaint of an improper personnel action was found to be true, the OSC can request that the federal employee receive back pay or other remedies. Federal agencies will often agree to resolve cases with the OSC without the need for enforcement.

In cases where a PPP has been committed, the OSC can seek disciplinary action against the federal employee involved. These cases are often resolved through an agreed settlement regarding the disciplinary action to be imposed. If a resolution is not reached, the OSC can petition for disciplinary action against the federal employee directly. One example of when this may occur involves Hatch Act cases.

How Can You Enforce an OSC Complaint?

In whistleblower cases, if the OSC does not find whistleblower retaliation, an individual can usually take further action by filing with the MSPB. This is often the case as the OSC has limited resources compared to the volume of whistleblower cases it receives.

Having Legal Representation

If you have been contacted as a possible target of investigation by the OSC, then you have the right to have an attorney defend you. It is very important to obtain legal defense against allegations made by the OSC. You will also need legal representation if you have been targeted for retaliation or subjected to other illegal actions as a result of whistleblower activities. We represent both complainants and those accused before the OSC.

Contact Us

Our law firm represents and advises federal employees in OSC cases. We represent individuals accused of wrongdoing by the OSC and individuals filing OSC complaints. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or visit our website to schedule a consultation.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John Berry, Esq. & Kara Osborne, Esq.

With the changes that have come to the federal government in light of the Department of Government Efficiency (DOGE), we have seen an increase in federal disability retirement applications to the Office of Personnel Management (OPM) lately. Given the efforts to reduce the size of the federal government, it appears that DOGE may actually not be opposed to increased disability retirement filings by federal employees.

What is OPM Disability Retirement?

OPM disability retirement is an entitlement for federal employees under the Federal Employees Retirement System (FERS). This program allows federal employees who are unable to perform their essential job functions, due to a disability, to receive a retirement annuity early. The disability does not have to be work-related. However, the disability must have arisen or worsened while the employee was working for the federal government. In order to qualify, a federal employee in FERS must have: (1) at least 18 months of full-time service, (2) a disability expected to last at least one year, and (3) the inability to perform job duties with or without reasonable accommodation. This linked article provides tips for federal employees considering OPM disability retirement.

Issues that have Recently Come Up for Disability Applicants

A number of recent issues have caused the increase in OPM disability retirement applications. Many federal employees have previously worked under Reasonable Accommodations (RA), which allowed remote work. While many of these RAs have been honored, many have not. Some agencies have tried to reduce the amount of telework in these existing RA agreements. Individuals are understandably concerned about returning to the office only to have all of their RA-related telework taken away. Other federal employees also had telework agreements in place outside of the RA process. These remote work assignments enabled many federal employees with severe medical issues to continue working for the federal government. Since the government’s commitment to remote work has changed, as a result of OPM and DOGE efforts for a full return to the workplace, many federal employees with disabilities have started to consider OPM disability retirement as an option.

Individuals Struggling with Disabilities May Have Had Enough

Another reason for the increase in OPM disability retirement applications is morale. Many federal employees devote themselves to their position out of pride. The latest developments with Reductions-in-Force (RIF), the Deferred Resignation Program (DRP), and other issues have led to a serious morale issue for many federal employees. Many federal employees who have had serious disabilities have continued to work despite debilitating medical issues. Many federal employees have now come to the conclusion that they shouldn’t struggle with a severe disability any further. As a result, many individuals have decided to seek disability retirement due to a lack of appreciation.

Potential Pitfalls

There are some other disability retirement potential pitfalls that federal employees face with respect to the DRP and other departure incentives. One of these issues includes an unwritten rule where many agencies have been advising federal employees that if they take a DRP and then apply for OPM disability retirement, they may find themselves receiving a negative decision. There is nothing written about this issue yet, but federal employees should at least consider this possibility.

Quicker Processing by OPM

OPM also appears to be processing OPM disability retirement claims faster. While nothing has been specifically written about faster OPM processing times, we have received notes from several clients that disability retirement cases seem to be moving faster. OPM may have been given guidance to speed up the processing of disability retirement claims.

Seek Legal Guidance Before Filing a Disability Retirement Application

Given the unique criteria that OPM uses to decide OPM disability retirement applications, it is important to speak to experienced counsel before filing a claim. Getting legal advice early can help you decide whether or not a particular disability claim stands a good chance of being granted. Getting advice early can also help individuals gather important materials to support their OPM disability retirement claims before they apply. The process can be complex and is not as straightforward as OPM often describes.

Contact Us

Our law firm represents and advises federal employees in OPM disability retirement applications and reconsideration appeals. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or our website to schedule a consultation.