MSPB, EEO, and Federal Employment Law FAQs

Federal Employment Retirement Benefits

What is the Federal Employees Retirement System (FERS)?

The Federal Employees Retirement System (FERS) is comprised of the Basic Benefit Plan, Social Security, and the Thrift Saving Plan – three of the primary retirement benefits offered to federal employees. If you have questions about your retirement or are facing an issue under FERS, we encourage you to review our Federal Employees Retirement System (FERS) page for additional information.

Do U.S. Postal Service employees qualify for federal disability retirement benefits?

Generally speaking, yes. However, postal employees must meet certain requirements in order to qualify for FERS benefits. If you are a postal employee, we recommend consulting with an attorney about your personal situation.

Can I obtain a waiver for the time limit placed on applying for FERS disability retirement benefits?

Federal employees can qualify for a waiver of the time limit in certain, limited circumstances. For example, if you can demonstrate that you were mentally incompetent on the date of your separation from the federal government or within one year of this date, you may qualify for a waiver.

What if I was denied for FERS disability benefits?

Federal employees routinely face FERS disability benefit denials due to a variety of technical and substantive issues. Our attorneys have had success appealing cases for reconsideration by the U.S. Office of Personnel Management (OPM), appealing to the Merit System Review Board (MSPB), and filing appeals in federal courts nationwide.

Merit Systems Protection Board (MSPB) Appeals

Under which branch of government does the MSPB fall?

The MSPB falls under the executive branch of government. It is considered an independent, quasi-judicial agency that safeguards the federal merit systems.

Which entities hear appeals of MSPB determinations?

Generally speaking, appeals alleging discrimination must be filed in federal district court, while all others must be filed in the U.S. Court of Appeals for the Federal Circuit.

What is the largest amount the MSPB has awarded?

To date, it is $820,000 in the 2013 case of Robert W. Whitmore v. Department of Labor, where Whitmore was terminated after testifying before Congress that OSHA’s workplace injury and illness program was deliberately ineffective. (This result is not typical or to be expected.)

Federal Whistleblower Protections

What is the Whistleblower Protection Act?

The Whistleblower Protection Act is a federal law that is designed to strengthen the protections afforded to federal employees who report illegal and certain other improper actions by federal agencies and their employees.

What should I do if I believe my rights as a whistleblower have been violated?

If you filed a discrimination or harassment complaint, or if you engaged in any other “protected activity” and are now facing retaliation by your federal employer (including suspension, termination, or removal), we strongly encourage you to seek legal representation. The law protects you, but you will need an attorney with significant experience in federal employment law matters to help you assert your rights.

Federal Reductions in Force (RIF)

When federal agencies face budget cuts, do they have alternatives to reductions in force?

In most cases, yes. Federal agencies, generally speaking, have the option to reduce program spending in lieu of terminating employees. This could include:

  • Cutting travel or training expenses (this is one of the most common ways agencies avoid RIFs since travel and training are generally paid from the same accounts that disburse salaries)
  • Cutting purchase or maintenance expenses
  • Instituting unpaid furloughs
  • Offering employee buyouts or Voluntary Separation Incentive Payments (VSIP)
  • Offering employee retirement packages

What duties do federal agencies have with regard to maintaining reemployment priority lists?

Federal agencies must establish Reemployment Priority Lists (RPLs) for each area in which they separate eligible competitive service employees as a result of a reduction in force. They must also give employees information about these RPLs when they issue notices of separation. In order to register for reemployment programs, federal employees must complete and submit an RPL application on or before their RIF separation date.

What should I do if my federal agency is considering an RIF?

If you are concerned about a possible reduction in force, you should discuss your situation with one of our experienced federal employment attorneys. There are several steps you should be taking to prepare, including ensuring that your performance appraisals are complete and in your file (your placement on the retention register will play a factor in your likelihood of being terminated). If appropriate, our attorneys may also be able to negotiate a demotion in lieu of termination that allows you to keep your current pay for at least two years.

What is a Voluntary Separation Incentive Payment (VSIP)?

A Voluntary Separation Incentive Payment (VSIP) is a cash payment offered to federal employees as an inducement to leave their employment voluntarily. The maximum VISP is typically $25,000 (or $40,000 for employees of the U.S. Department of Defense), and VISP payments are considered taxable income. If a federal employee accepts a VSIP, he or she will generally be required to leave one or before a specific date and will be prohibited from returning to employment for at least five years (unless they repay the VSIP).

Where can I find the regulatory requirements governing federal reductions in force?

The regulatory requirements for federal RIFs are found in Title 5, Part 351 of the Code of Federal Regulations.

What are the “two rounds” of RIF competition?

In the “First Round RIF Competition,” the federal agency applies the four retention factors to a competitive level to identify which employee has the lowest retention factor. In the “Second Round RIF Competition,” the agency applies the four retention factors to determine whether a released employee has a bump or retreat right to a position in a different competitive level.

Federal Discipline and Adverse Actions

Is the procedure for disciplining a federal employee based on misconduct treated differently from that for discipline based on poor performance?

Generally speaking, yes. In most cases, discipline based on misconduct is subject to a different set of procedures than discipline based on poor performance. In both types of cases, however, the employing federal agency must give the employee a written proposal and right to reply before taking any disciplinary or adverse action, and the employee has the right to appeal to the MSPB.

Are “discipline” and “adverse action” different?

Yes. In the federal employment context, discipline is generally considered less severe than adverse action. However, both must be taken very seriously, as adverse employment action by the federal government can have severe and long-term consequences.

When should I hire an attorney for my federal discipline or adverse action case?

In both types of cases, early intervention is critical. Ideally, you should seek legal representation while your investigation remains ongoing. Your attorney will be able to help you understand your rights, communicate with the government’s investigators on your behalf, and make quick decisions if you need to file an EEO complaint or MSPB appeal.

Can you negotiate a settlement in federal discipline and adverse action cases?

Yes; and, if you are facing discipline or adverse action based on sound allegations, it may be in your best interests to negotiate a settlement. Our attorneys have represented federal employees in settlement negotiations that have preserved our clients’ federal employment records and allowed them to retain their federal employment. Knowing when (or whether) to settle requires a clear understanding of the facts involved in your case and the federal laws that apply.

Discrimination and EEO Complaints

What is a “protected class” and how is this relevant to my discrimination case?

In order to file a successful case for unlawful discrimination or harassment, you must be able to demonstrate that (i) you are a member of a “protected class,” and (ii) you were subjected to discrimination or harassment based upon your membership in the protected class. Protected classes include those based upon:

  • Age
  • Disability
  • Gender
  • Genetic information
  • National origin
  • Pregnancy
  • Race or color
  • Religion
  • Sexual orientation

Is there a special EEO procedure for federal employees?

Yes. While private-sector employees can generally file a complaint directly with the Equal Employment Opportunity Commission (EEOC), Federal employees must begin the process by contacting their agency’s EEO counselor. Once you contact your EEO counselor, you will then likely be given the option to either participate in counseling or go to mediation. If neither of these methods of resolution is successful, your next step is to file a formal discrimination or harassment complaint against your agency.

Am I entitled to a hearing on my EEO complaint?

Yes, it is up to you whether to request a hearing when you file your formal complaint, and this is a decision you should make with the help of your attorney.

More Questions? Schedule a Confidential Consultation Today

If you are a federal employee and you have questions about your rights with regard to discipline or adverse action, discrimination or harassment, retirement, or a reduction in force, we encourage you to speak with one of our attorneys. To schedule a confidential consultation, please call (888) 846-7844 or submit our consultation request form now. We represent federal employees nationwide.

Successfully litigated against all federal agencies for 24 years, has brought cases before most circuit courts of appeals, as well as the United States Supreme Court on behalf of federal employees he has represented.