Why you should care
Because nobody wants to hear “You’re fired!”
R. Scott Oswald is managing principal of The Employment Law Group, P.C.
Yesterday, President Donald J. Trump put federal hiring on ice, acting on a campaign promise that many of his supporters relished: to reduce the federal workforce by attrition. But it’s no wonder that many public servants remain fearful of losing their hard-won careers. Trump nominated cabinet members who are hostile to the departments they will oversee, and his team has requested lists of government employees who, some worry, could face reprisal for working on disfavored policies.
“Donald likes to fire people,” as Trump’s then-henchman Chris Christie told donors last year, confirming that he was compiling a list of public employees for dismissal.
The new Republican Congress, meanwhile, has reinstated an obscure rule that could allow it to slash individual government programs — or even, theoretically, to target specific federal workers for firing. Some lawmakers have threatened to scrap the entire civil service merit system, which professionalized the federal workforce more than 130 years ago, and whose rules protect more than 2 million public servants from political interference and other unfair actions.
Government workers are protected by a wide range of laws that won’t be repealed, and in some cases by the First Amendment.
The last big ideological attack on the time-tested General Schedule advancement system — a “pay-for-performance” plan at George W. Bush’s Pentagon — collapsed due to its arbitrariness, yet civil servants who follow the rules approved by lawmakers still are demeaned as overpaid, overprotected bureaucrats. And that’s unfair. The objective mechanisms of today’s professional civil service aren’t perfect, but they are the taxpayers’ bulwark against the pillage of government funds. Remember what came before the modern, merit-based system was established in 1883: A “spoils” system that unashamedly used the public purse as a trough for political followers.
But don’t despair, federal employees, and don’t be scared into silence. You should not keep quiet if — as some fear — the Trump regime starts to promote political loyalty, or other disallowed biases, ahead of professionalism. Even in a worst-case scenario, government workers are protected by a wide range of laws that won’t be repealed, and in some cases by the First Amendment of the U.S. Constitution.
Here’s a Q&A for public servants who want to work with honor under an administration that may not value them.
Can I be punished for my previous work on projects that are now out of favor?
Unless you’re a political appointee or a member of the Senior Executive Service (the top rank of civil servants), you are protected from punishment on the basis of political retaliation. You can appeal adverse actions, and in some circumstances you might also have a case under the Whistleblower Protection Act, a law that Congress is unlikely to repeal. If your job were to be defunded individually by Congress under the revived Holman Rule, which is unlikely but possible, many lawyers would be willing to challenge the action on constitutional grounds.
Can I be punished for speaking out against policies I disagree with?
In general, as long as your objections are made respectfully and via the appropriate channels, you should never face retaliation, and can appeal if you do. While Trump appointees might reject your appeal at an administrative level, you can escalate to a more objective federal court. If you speak out publicly as a citizen on a matter of major public concern, you are protected by the First Amendment.
Can I be punished for refusing to implement a policy that I believe is illegal?
If the policy truly is illegal, you are protected by the Whistleblower Protection Act. Refusing a legal order from your superiors, however, is insubordination and difficult to defend. If you are facing a gray area, seek legal advice.
Can I be refused advancement because I am a Muslim in a sensitive area of government, or punished if I stand up for a person who faces such discrimination?
No. You are protected by Title VII of the Civil Rights Act of 1964, as amended. Congress is highly unlikely to change this law.
Can I be discriminated against because I am gay or transgender, or punished if I stand up for a person who faces such discrimination?
You are currently protected by federal policy and by Title VII, and many things would need to change for you to lose this protection. Many federal courts already have accepted the current position of the Equal Employment Opportunity Commission, which is that discrimination on the basis of sexual orientation, gender identity or gender expression is prohibited under Title VII. It’s possible that a Trump EEOC could change its position, but such a change might not be recognized by courts — and even if it were, it would take years to percolate. And please note: While Trump isn’t the only relevant player here, he has expressed support for “the gays.”
Will Trump be able to restrict my rights of appeal if I face punishment or discrimination?
Trump can appoint like-minded members of the Merit Systems Protection Board, a main avenue for appeals by federal employees — and he could harm that body by starving it of personnel and funds. (The MSPB recently lost its quorum and can’t currently act, but that’s not Trump’s fault.) The same is true of Equal Employment Opportunity Counselors, who accept workers’ discrimination complaints. None of this would affect employees’ rights, but it could make justice a slow and frustrating process.
More substantive changes to federal employees’ rights mostly would need to be legislated by Congress. Even in that scenario, claims that have already been filed should not be affected.
Will Trump be able to freeze my pay or eliminate my job?
Generally speaking, yes, especially as part of a broader budgetary action — but you should never be singled out for individual action, except based on performance or conduct issues.
Will Trump be able to take away the pension I’ve already earned?
Highly unlikely. Retroactive action against any benefit is unlikely to pass legal muster, except in very unusual cases. But Trump and the new Congress could collaborate to change retirement benefits moving forward.