There are some federal appointments (such as Supreme Court judgeships) that are for life or until the appointee decides to retire. More conventional federal jobs, such as a SSA customer service rep or a USPS city carrier, can easily be taken away. However, federal employees have more job protections in place than their private sector counterparts.
Being fired from a federal job happens more frequently than most people think. People probably have the idea that federal employees are hard to fire because there is a process that has to be followed in order to terminate them.
Most of the time, federal employees can’t just be instantly fired. There has to be documentation of continuing poor performance or evidence of something serious enough to warrant immediate action.
Most federal employees have a performance plan that lays out what is expected of them each year. When you perform all the duties outlined in the plan, you are doing what is expected of you and will likely receive a positive performance review.
If you are not meeting the expectations in some significant way, this would be considered poor performance. In this case, you should be able to work out some kind of corrective action (usually a Performance Improvement Plan, or PIP) with your supervisor. If you still do not meet expectations over a period of time, you could certainly be let go.
However, if you commit a crime or if your behavior is threatening or significantly disruptive, you will see this process move much more swiftly.
You could also be terminated before you’re even hired. A reason for pre-employment termination could be an issue during a background check, such as being fired from a previous position.
When this happens, the Office of Personnel Management (OPM) or the agency will make a suitability determination on whether the candidate may retain the position. You would then have the right to receive and reply to the evidence provided.
In some situations, you may be able to appeal to the Merit Systems Protection Board (MSPB) on the adverse suitability decision. The MSPB has the power and authority to make a final decision on whether an employee may stay employed with the federal government.
After you’re hired as a federal employee, you usually have a probationary period of a year or more. During this probationary period, the agency can fire an employee for any reason without going through this process.
However, the reason for termination cannot violate the law. This means that the reason for termination can’t be based off of discrimination, whistleblower retaliation, political affiliation, or because the employee exercised their First Amendment rights.
Once a federal employee passes their probationary period, they are considered a permanent employee.
The employee can then only be removed for issues such as poor performance, misconduct, or medical inability to perform.
Before removing the employee, the agency has to follow due process. The agency must provide notice of the proposed adverse action, the evidence relied upon, and the right to both give written or oral replies and to be represented by a lawyer.
The agency is supposed to prove that the employee in question either committed the misconduct as charged by preponderance of the evidence, which means the evidence shows it’s more likely true than not.
Otherwise, the agency must show that the employee had poor performance through substantial evidence.
In cases of misconduct, the agency must demonstrate removal as a reasonable penalty under the Douglas factors.
The Douglas factors include criteria such as frequency of the conduct, past performance and discipline, seriousness of the charge, how other similarly situated employees charged with the same conduct were treated, if there are other courses of action available, and whether the employee is likely to be able to correct the behavior.
In any event, federal agencies absolutely cannot fire an employee based on any of the following:
According to 29 C.F.R. §1614, a federal employee also legally cannot be terminated for EEO activity. They also cannot be terminated for making a protected disclosure about waste, fraud, abuse, or illegal activity, under 5 U.S.C. §2302.
Finally, Part 315 of OPM Regulations states that a federal employee also cannot be let go for reason of political affiliation or marital status.
If a federal employee is fired for any of the above reasons, most can appeal the decision through various administrative avenues such as the EEOC, MSPB, or the Office of Special Counsel (OSC).
So what happens when a federal employee gets fired? An agency has to follow the below procedure if they want to fire or suspend competitive-service employees.
Alternatively, the employee can appeal the removal to the MSPB. In order to win, the agency must prove that the conduct in question did occur, is relevant to the employee’s efficiency, and the penalty is proportionate to the behavior.
Firing for excepted-service employees is a similar process. However, SES temporary appointees are at-will and may be separated at any time.
An SES career federal employee will almost certainly be fired if they receive too many unsatisfactory ratings on their performance reviews. SES employees can't appeal to MSPB, but they are able to request a hearing before the board.
If you’re a federal employee who has been fired or is in the process of being removed, and you believe the reason for removal was unlawfully motivated, contact us as soon as possible.
Give us a call or fill out the form below to get in touch with the highly experienced federal employee attorneys at Melville Johnson, P.C. to learn about your rights and how we can help you win your case.