EXAMPLES OF PROHIBITED PERSONNEL PRACTICES

Unions can grieve to enforce any of the law’s Prohibited Personnel Practice. We can include them in a grievance along with allegations that the contract was violated as well as that there was a ULP. Or we can file a grievance alleging a contract violation, a ULP with the FLRA General Counsel, and a Prohibited Personnel Practice allegation with the Office of Special Counsel if each has been violated in an employee’s situation.  The choice is ours.  But before we can do any of that, union reps and employees need to know that they have these rights and what a violation would looks like.  So, we have included examples of each of the prohibited practices that you might want to share with them.  These are taken verbatim from the Office of Special Counsel web-site with the exception of Comment we included about probationary employee rights.

Discriminate (including discrimination based on marital status and political affiliation). EXAMPLE: Supervisor Joe refuses to promote Employee Jane because Jane is a registered Republican; or his refusal is because she is a single mother. (OSC will generally defer Title VII discrimination allegations to the EEO process, rather than duplicating already existing procedures.)

Solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics. EXAMPLE: Selecting Official Joe hires Applicant Jack based on Senator Smith’s recommendation that Jack be hired because Jack is a constituent; or fails to hire Applicant Jane because of Congressman Smith’s recommendation based on the Congressman’s friendship with Jane’s parents.

Coerce the political activity of any person, or take action against any employee as reprisal for refusing to engage in political activity. EXAMPLE: Supervisor Jane takes away significant job duties of Employee Jack because Jack will not make a contribution to Jane’s favorite candidate.

Deceive or willfully obstruct any person from competing for employment. EXAMPLE: Supervisor Joe, located in Headquarters, orders that no vacancy announcements be posted in the field office where Employee Jack works because he does not want Jack to get a new job; or falsely states that there will be extensive travel in the position when he knows that there is no travel.

Influence any person to withdraw from competition for a position to improve or injure the employment prospects of any other person. EXAMPLE: Supervisor Jane, in an effort to hire Employee Joe, tells Employee Jack that he should not apply for a position because he is not qualified and will never be selected. Employee Jack is qualified.

Give an unauthorized preference to a person to improve or injure the employment prospects of any particular employee or applicant. EXAMPLE: Supervisor Jane specifies that Spanish-speaking skills are necessary for a vacant position, for the purpose of selecting Employee Jack, who speaks fluent Spanish. The position, however, does not require Spanish-speaking skills.

Influence any person to withdraw from competition for a position to improve or injure the employment prospects of any other person. EXAMPLE: Supervisor Jane, in an effort to hire Employee Joe, tells Employee Jack that he should not apply for a position because he is not qualified and will never be selected. Employee Jack is qualified.

Engage in nepotism. EXAMPLE: Second-level Supervisor Jane asks First-level Supervisor Joe to hire her son; or to promote her daughter.

Take a personnel action against an employee because of whistleblowing. EXAMPLE: Supervisor Joe directs the geographic reassignment of Employee Jack because Jack reported safety violations to the agency’s Inspector General; or because employee Jill reported a gross waste of funds to the Office of Internal Affairs.

Take a personnel action against any employee because of the exercise of an appeal, complaint, or grievance right. EXAMPLE: Supervisor Jane places Employee Jack on an undesirable detail because Employee Jack filed an administrative grievance about his performance rating.

Discriminate against an employee on the basis of conduct, which does not adversely affect the performance of the employee.  EXAMPLE: Jack’s employment is terminated because he attended an event for an issue or a cause, such as an animal rights rally.

Take or fail to take a personnel action, if such action would violate a veterans’ preference requirement. Example: Supervisor Jane hired Employee Jack, without considering Veteran Jennifer, who was included on the list of eligible employees. (OSC’s jurisdiction is for disciplinary actions only; the Dept. of Labor has jurisdiction to investigate for corrective actions.).

Take a personnel action against an employee which violates a law, rule, or regulation which implements a merit systems principle.EXAMPLE: Supervisor Joe terminates the probationary appointment of Employee Jack because of Jack’s letter to the editor criticizing affirmative action – a valid exercise of First amendment rights, a law implementing a merit system principle. [FEDSMILL Comment: Although most employees believe there is nothing the union can do for them while they are in their probationary period, that is wrong as this Special Counsel example makes clear.  However, probationers have over a dozen different ways to challenge their termination.  Check out “16 Ways Probationers Can Appeals Terminations” and other FEDSMILL postings about their rights.]

Implement or enforce a nondisclosure agreement or policy lacking notification of whistleblower rights.  EXAMPLE: A manager requires all employees in his program to sign a non-disclosure agreement that prohibits the employees from discussing the program in any way, and fails to notify employees of protected channels for making disclosures.

 

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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