UNION REP TEST #8 (Part 2) – Prohibited Personnel Practices (PPP)
This continues the self-assessment of your knowledge of prohibited personnel practices. Read through the hypothetical situations provided under each PPP and decide what you think. The correct responses are posted below the quiz questions.
PPP #8. An agency official shall not retaliate against an employee for whistleblowing. 5 U.S.C. § 2302(b)(8) This PPP prohibits agency officials from taking, failing to take, or threatening to take a personnel action because of an employee’s whistleblowing.
Situation: An employee reports to her agency’s internal affairs office that her supervisor illegally brought a gun into the workplace. The internal affairs investigator discloses the identity of the employee to the supervisory chain. Shortly thereafter, the employee is subjected to a retaliatory investigation resulting in her termination from employment based on extremely weak and unsupported charges of misconduct.
PPP #9. An agency official shall not retaliate because an employee:
- filed a complaint, grievance or appeal;
- testified for or helped someone else with one of these activities;
- cooperated with or disclosed information to the Special Counsel or an Inspector General; or,
- refused to obey an order that would require the employee to violate a law.
Situation: A supervisor gives undesirable duties to a subordinate employee who the supervisor knows testified in another employee’s union grievance.
PPP #10. An agency official shall not discriminate due to conduct that does not adversely affect job performance. 5 U.S.C. § 2302(b)(10)
Situation: A supervisor discovers that one of her subordinate employees is gay. Following the supervisor’s discovery, the gay employee is targeted for disparate treatment. For instance, the employee’s time and attendance is scrutinized daily and the employee is forced to take leave for as little as three-minute absences, while other employees’ similar absences are ignored. The supervisor also changes the targeted employee’s schedule to night shift work and openly disparages the employee at staff meetings.
PPP #11. An agency official shall not take or fail to take, recommend, or approve a personnel action if the official knows that doing so would violate a veterans’ preference requirement. 5 U.S.C. § 2302(b)(11)
Situation: a supervisor fails to observe a veterans’ preference requirement, such as not appropriately ranking a veteran in accordance with his military service.
PPP #12. An agency official shall not take or fail to take a personnel action if doing so would violate a law, rule or regulation implementing or directly concerning the merit system principles. 5 U.S.C. § 2302(b)(12)
Situation: Two agency officials steered around the normal employment process by using Temporary Limited Appointment (TLA) authority to place in a position an individual who could not compete under the merit staffing announcement because she lacked competitive status and was not eligible for reinstatement or for consideration as a veteran or an individual with a disability.
PPP #13. An agency official shall not implement or enforce a non-disclosure policy, form or agreement if it does not contain a specific statement notifying employees of their rights, obligations, or liabilities relating to classified information, communications to Congress, whistleblowing to an Inspector General, or any other whistleblower protection. 5 U.S.C. § 2302(b)(13)
Situation: An agency’s general policy is that employees may not disclose any information they learn of during the course of their jobs–without exception.
PPP #14. An agency official shall not access the medical record of another employee or applicant in furtherance of any conduct proscribed by the 13 other PPPs. 5 U.S.C. § 2302(b)(14)
Situation: A supervisor discovers a subordinate employee has disclosed to the media that the supervisor often falsifies safety records. Following the supervisor’s discovery, the supervisor accesses the employee’s medical records to gather information that supports the misconduct allegations the supervisor intends to make against the employee.
ANSWERS:
#8. VIOLATION. To prove whistleblower retaliation, one must show:
The employee disclosed what he or she reasonably believes to be:
- a violation of law, rule, or regulation;
- gross mismanagement;
- gross waste of funds;
- an abuse of authority; or
- a substantial and specific danger to public health or safety.
The personnel action in question must have been taken (or not taken, such in the case of a promotion), threatened, or influenced by an official who knew of the employee’s disclosure; and
The employee’s disclosure was a contributing factor in the personnel action.
Once the employee establishes the above, the agency must prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. Clear and convincing evidence is a higher standard than preponderant evidence.
#9. VIOLATION. This PPP prohibits agency officials from taking, failing to take, or threatening to take a personnel action because an employee engaged in any of the four protected activities mentioned above. To prove a claim of retaliation under this section, one must show:
- The employee engaged in a protected activity;
- The agency official with knowledge of the employee’s protected activity took, failed to take, or threatened to take a personnel action against the employee; and
- There is a causal connection between the protected activity and the personnel action
#10. VIOLATION. This PPP prohibits agency officials from penalizing their employees for conduct that has no adverse impact on their job performance or on the ability of others to perform their jobs. This includes sexual orientation and gender identity discrimination. Management may, however, take action based on an employee’s conduct, even if it occurred off-duty, if it affects job performance.
An SBA training document confirms the following is also a violation: You manage an office of six people. One of your subordinates has submitted a request for a promotion. You have given him a superior rating each of the last three years. However, this subordinate constantly talks about himself and does not attend office gatherings held after hours. Can you deny this subordinate the promotion based on this conduct? No is the correct answer because it would be a PPP.
#11. MAYBE. MSPB has not yet clarified what the word “knowing” means. It could mean taking, recommending, or approving, or failing to take, recommend, or approve a tainted personnel action, whether or not the offending employee actually knew about veterans’ preference laws, rules, and regulations. However, it could mean that the PPP would be established only if a person were found to have knowingly “fail[ed] to comply with veterans’ preference requirements.”
#12. VIOLATION. Considering all the circumstances showing pre-selection, and because TLA authority is limited to temporary positions, but the position at issue was permanent, the Board agreed that the action violated the regulations concerning such authority. Further, it violated the merit system principle at 5 U.S.C. § 2301(b)(1), that “[r]ecruitment should be from qualified individuals from appropriate sources.” As a result, the Board found a PPP under the provision that is now (b)(12). It imposed a $1,000 fine and debarment on one official, who had retired by that time, and a 60-day suspension against the second. (See Special Counsel v. Byrd, 59 M.S.P.R. 561 (1993))
#13. VIOLATION. The policy must include language that employees also have the right to engage in whistleblowing and to file disclosures with OSC and other entities.
#14. VIOLATION: The supervisor has committed this PPP even if the supervisor does not find any relevant information.
Virtually, everything in this post was taken verbatim from an OSC document. However, that has been supplemented by material also taken from other federal government sources, particularly:
https://www.mspb.gov/ppp/ppp.htm
https://www.justice.gov/sites/default/files/ag/legacy/2008/09/05/ag-031008.pdf
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