SLAUGHTER OF THE INNOCENTS: PROBATIONERS AND THE PRIVACY ACT

If you are not heartbroken about what King Kruel has done to thousands of innocent federal probationary employees, then you likely spent your childhood pulling wings off flies and lighting random fires. He took their jobs away, he took their health insurance away,  and he made their futures so much harder by officially firing them for poor performance. I understand why he had to accuse them of being poor performers. He needed some reason and alleged poor performance is very, very difficult to appeal. But now every fired probationer will have to declare on future job applications that they were fired for being poor performers. If those applications go through machine scans, they will be screened out without any human every looking at them. Many probationers are also going to have a hard time getting unemployment insurance quickly because many states penalize you for being fired—as if it is always the employee’s fault. But what about the Privacy Act? 

The Act requires that agencies–

(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination. (5 USC 552a (e)(5))

Listening to newscasters interview these folks it was obvious that virtually none of them were ever told before they were terminated that they were poor performers. In fact, a few talked about just getting small awards for their superior performance. Consequently, if these former feds use the Privacy Act to demand their records be corrected it is likely that agencies will not have a scintilla of evidence to show their performance was poor. That is why they will refuse to correct the records.

That is important because the Act permits the–

individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with § 552a the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official’s determination under subsection (g)(1)(A) of this section; (5 USC 552a(d)(3))

The agency has to refuse to make the correction because by admitting that the allegation was false leaves itself with no grounds for having terminated the employee. That could leave King Kruel Kreeps (aka KKK 2.0) dangerously close to having to reinstate all those folks.

5 USC 2303(b)(4) makes it a prohibited personnel practice to “willfully obstruct”  a person’s right to compete for employment, which is exactly what probationers are considered to be doing under law. (2303(b)(10) will also help the probationer’s case.) Once the agency refuses to make the change, the employee can trigger a process that ends up in court, and here is what the law says about that.

In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of— (A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and (B) the costs of the action together with reasonable attorney fees as determined by the court.

I am no lawyer, but it seems to me unions should be looking into this possibility very, very hard. If your union  does not have a lawyer, contact one to see if they are willing to take on these cases. They could turn into fat fee feasts if everything goes right.

Unions should know how to contact these terminated probationers and assemble a good class—or at least those employees who valued the union enough to become members while they still work for the feds.