Thursday, February 22, 2018

Civil Service “Reform” Should Embrace the Merit Systems Principles – The Alternative Is Much Worse.

In February 2018, as part of its Fiscal Year 2019 Budget Proposal, the White House issued a paper discussing its big-picture vision for civil service reform. In addition to calling for cuts to Federal employee compensation and retirement benefits, the White House proposed changes that will fundamentally alter the makeup of the federal bureaucracy:
While pursuing a series of proposals to overhaul Federal compensation and benefits, the Administration also intends to partner with Congress to cull statutory and regulatory rules that have over time created an increasingly incomprehensible and unmanageable civil service system. The Administration will propose changes in hiring and dismissal procedures to empower Federal managers with greater flexibility.
This echoes President Trump’s request in his first State of the Union Address that Congress “reward good workers and [remove] federal employees who undermine the public trust or fail the American people.” Based on these grandiose policy statements alone, it is difficult to determine how broadly the White House intends to overhaul the federal civil service, or who the White House imagines will constitute the next generation of civil servants. Given some of the President’s statements, there is a concern that he was referring to loyalty as a necessary requirement for the civil service. As with most things, the devil is in the details.

Before making any dramatic changes, the White House and Congress should consider the history of the civil service and why federal employee protections are so important to national policy. Before the modern civil service system, the federal government operated in large part on a spoils system (“to the victor belongs the spoils”) tracing its roots back to Andrew Jackson. At the beginning of his administration in 1829, Jackson removed nearly 10% of the federal workforce in the name of reform and efficiency. In reality, Jackson had promised government positions to his supporters in return for their political support, and he needed to purge the bureaucracy in order to make room for his supporters. The results were predictable. By 1842, U.S. Senator Garrett Davis described the spoils system as “the greatest and most threatening abuse that ever invaded our system,” adding that it makes the president “the great feudatory of the nation and all offices fiefs, whose tenure is suit and service to him.” Later, in 1881, a disgruntled job-seeker shot President James A. Garfield after being rejected by his administration. The assassin, Charles Guiteau, felt the president owed him a patronage position for his assistance in securing Garfield’s election.

The Modern Civil Service was a deliberate reaction to the spoils system. The Pendleton Act of 1883 attempted to reduce the impact of politics on the civil service by making it illegal to fire or otherwise punish federal employees for strictly political reasons. Since the Pendleton Act, the U.S. has consistently built on the idea of an independent civil service with subsequent measures such as the Hatch Act of 1939 (restricting federal employees’ political activities); and the Civil Service Reform Act of 1978 (creating the modern U.S. Office of Personnel Management, Federal Labor Relations Authority, and Merit Systems Protection Board). Indeed, the Civil Service Reform Act codified the “merit systems principles” into law and stated it was national policy:
…to provide the people of the United States with competent, honest, and productive workforce…and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles.
The merit systems principles are designed to ensure fair and open recruitment and competition and employment practices free of political influence, discrimination, or other nonmerit factors. 5 U.S.C. § 2301. They are strong principles that reflect our values as Americans. Moreover, the law already provides for both rewarding excellence and removing underperforming employees. 5 U.S.C. § 2301(b)(3), (6).

While it may be tempting for this or a future administration to move away from the merit systems principles in favor of a system that would allow the president greater authority to staff the civil service with his or her allies, history has shown that such systems are inherently prone to abuse. The public should be skeptical of any effort that raises the risk of returning to a spoils system. The country is ill served by an underpaid civil service with fewer skills and less institutional memory to fulfill each agency’s mission. As former Deputy Secretary of Labor Chris Lu explained, career employees, i.e., employees not selected because of their political affiliation, “are the backbone of ensuring that programs are implemented, people are kept safe, and the government performs its role in providing economic opportunity.” We would do well to keep it that way.

Written by Robert DePriest.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Thursday, February 15, 2018

Are You Entitled to Due Process When You Apply for a Security Clearance?

The answer to this question is easy: “No, you’re not,” at least, not in the constitutional sense. It is axiomatic that no one has a right to a security clearance, and “due process” under the Constitution refers to your right to have notice that the government is about to take away something you have a right to and an opportunity to change the government’s mind. (Think: social security benefits.) But even if you do not have that constitutionally-guaranteed right when you apply for – or are reinvestigated for – a clearance, you do have, under various executive orders and regulations, the right to respond to negative information that turns up in an investigation and appeal a negative decision.

Your opportunity to respond to negative information is built into the security clearance process. First, you must complete the SF-86, the standard form used to collect a wide range of information (you can see the form here). Instructions accompanying the form explain that the information provided “is evaluated on the basis of its currency, seriousness, relevance to the position and duties, and consistency with all other information about you.”

You are cautioned that “[w]ithholding, misrepresenting, or falsifying information may affect your eligibility for access to classified information, eligibility for a sensitive position, or your ability to obtain or retain Federal or contract employment.” In practice, any misrepresentation of information on – or omission from – the SF-86 will be treated very seriously by security clearance adjudicators and, unless convincingly explained, is likely to result in a clearance denial. After you sign the form, acknowledging that “a knowing and willful false statement on this form can be punished by fine or imprisonment or both (18 U.S.C. § 1001),” you then submit it, usually to the security office at your agency.

The security office looks it over and also does a criminal check of records that are available in federal and state databases. Assuming there are no red flags, you may be issued an interim clearance within a matter of days. The interim clearance is issued at the discretion of your agency security office and is temporary, although it may last until your clearance is granted. Also usually at the discretion of the agency security office (although some agencies have policies on this), your access may be restricted to lower levels of classified information than the clearance you’ve applied for, or it may allow you full access to what is needed for your job. Whether or not you received an interim clearance tells you nothing about the likelihood that your “real” clearance will be granted – that will be based on the results of the full investigation and your responses to any derogatory information that turns up.

A temporary clearance may be rescinded at any time, if the background investigation turns up negative information. Typically, as soon as serious derogatory information turns up in a background investigation, your agency security office is notified and will immediately pull your interim clearance. The background investigation – with your right to answer derogatory information – will continue, but you will be denied access to classified information (removed from your position requiring a clearance) until the investigation and adjudication (with appeals) are completed. You cannot appeal the denial of your interim clearance.

For someone going to work in the White House, the process is slightly different – and usually quicker. “Yankee White” is the term used to describe clearance screening for employees supporting the Office of the President. In addition to the extensive background check, there are likely to be additional financial forms required and there will be a check of Secret Service records. Those positions closest to the President require periodic polygraph examinations, as well. In addition, friends, acquaintances, and family members will be reviewed and possibly interviewed. These investigations are supposed to be completed in 65 days.

The National Security Adjudicative Guidelines for Determining Eligibility for Access To Classified Information or Eligibility to Hold A Sensitive Position are the standards for security clearance adjudications across the federal government. They are available here. Appendix A explains the process for adjudication of security clearances and provides thirteen guidelines for evaluation, including such categories as Guideline B: Foreign Influence, or Guideline F: Financial Considerations, or Guideline G: Alcohol Consumption. If you look at each guideline, you will see three sections: the first provides an overview justifying the concern; the second lists specific things that can raise a concern for adjudicators; the third suggests what would mitigate concerns.

In any security clearance investigation, if the background investigator turns up derogatory information, e.g., unpaid debts, an unreported arrest, a problem with alcohol -- or reported spousal abuse -- you will be asked to respond by admitting or denying the allegations, providing an explanation, or submitting evidence of mitigation. This can happen at a number of junctures, more or less formally. For example, an investigator may meet with you to ask for more information or an explanation. Or you will be asked to respond in writing to requests for more information or to the derogatory information specifically (sometimes called interrogatories). More formally, you will be notified of the reasons your clearance will not be granted and allowed a chance to respond and to appeal. The form of the appeal varies throughout the government, but the right of appeal is mandated. An opportunity, often more than one, will be given to you to respond to derogatory information.

When confronted with derogatory information or simply information that appears to contradict what you said on the SF-86, you should think about consulting an attorney and get help shaping your response. At Kalijarvi, Chuzi, Newman & Fitch, we have had many cases where a fact-based response to derogatory information results in a clearance being granted. In other cases, the facts themselves make success unlikely and we will so advise. But the opportunity to respond, to provide more information or context, is always given to the applicant. For all its flaws, the system does not lack that sort of due process.

Written by Mary Kuntz.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Wednesday, January 24, 2018

Despite Shutdown, Essential Employees Must Be Paid on Time

At midnight on January 20, 2018, the federal government ran out of money. While members of Congress and the White House continued to negotiate a continuing resolution to fund the government, a large portion of the federal bureaucracy shut down. However, federal employees who provide services involving the safety of human life or the protection of property are considered essential and are instructed to continue to report to work. Additionally, the federal government is required to pay these “excepted” or “essential” employees, on their regularly scheduled payday, for the time they worked during the pay period – whether or not Congress has passed a budget.

In 2013, the federal government shut down from October 1 through October 16. Essential employees, like correctional officers at federal prisons, continued to work through this time. On October 11 – the government’s regularly scheduled payday for pay period 21 – these essential employees were not paid for any time they worked from October 1 through October 5 (the last day of pay period 21). Losing a third of a paycheck can be, and was, devastating for some families.

While the government eventually paid the essential employees for their October 1 through October 5 work, KCNF partner Heidi Burakiewicz filed a lawsuit on their behalf arguing that the federal wage and hour law, the Fair Labor Standards Act (“FLSA”), requires that employees be paid on their regularly scheduled pay day for all the hours they worked during a pay period, regardless of whether the government was shut down.

The government opposed the lawsuit and argued that another federal law, the Anti-Deficiency Act (“ADA”), prohibits the government from spending money when specific appropriations are not in place, as is the case during a shutdown. The chief judge of the United States Court of Federal Claims did not buy that argument and held that the ADA does “not … cancel defendant’s obligation to pay its employees in accordance with the manner in which the FLSA is commonly applied.”

Because it was obvious, and mostly undisputed, that the government’s actions in this situation violated the FLSA, the only requirement remaining was for the court to determine if the government could demonstrate that it had reasonable grounds for believing its failure to pay timely wages to essential employees during the shutdown was allowed. The government argued its position that the ADA precluded timely payment of wages to plaintiffs during the shutdown because, in the absence of appropriations, there was no source of appropriated funds by which federal agencies could comply with the FLSA. The court responded:
Here, defendant made no inquiry into how to comply with the FLSA, instead relying entirely on of the primacy of the ADA. By its own admission, the government did not consider—either prior to or during the government shutdown—whether requiring essential . . . employees to work during the government shutdown without timely payment of wages would constitute a violation of the FLSA.
Because the government failed to demonstrate that it had good faith reasons for not paying essential employees’ wages on their regularly scheduled payday, it was liable under the FLSA for liquidated damages – that is, an amount equal to the minimum and overtime wages that the government failed to timely pay to essential employees.

If you have concerns about how you were paid during the 2018 Shutdown, please reach out to the attorneys at Kalijarvi, Chuzi, Newman and Fitch, P.C., for a consultation.


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Thursday, January 18, 2018

Trump's DOL: Employees' Protections Down the Drain

The Fair Labor Standards Act (“FLSA”) establishes, among other things, overtime pay standards affecting employees in both the private and Federal sectors. Workers covered by the FLSA must receive overtime pay (their hourly rate plus an additional 50%) for each hour they work after 40 hours of work in a workweek. The Department of Labor (“DOL”), Wage and Hour Division (“WHD”) enforces the Federal overtime pay requirements of the FLSA.

Historically, interested parties could ask the WHD for official written explanations (“Opinion Letters”) of what the FLSA requires in certain fact-specific situations. In an Opinion Letter, the DOL indicates whether a particular business practice complies with the FLSA. This process, however, largely served the interests of employers: it gave them a legal defense that their practices comported with what the Opinion Letter says, even if the DOL’s guidance in the Opinion Letter was wrong. Specifically, under the Portal-to-Portal Act of 1947, employers may be able to rely on the Opinion Letters for their affirmative defenses and receive deference from the courts if they act “in good faith in conformity with” an Opinion Letter. This can be a challenge for employees’ attorneys to overcome. Additionally, although most beneficial to the employer requesting the Letter, any other employer can cite the Letter as a defense, provided its practice aligns with the material facts underlying the Letter.

DOL’s longstanding practice of issuing Opinion Letters offering interpretive guidance under the FLSA was halted by the Obama Administration in 2009. Beginning in 2010, the DOL discontinued issuing Opinion Letters in favor of “Administrative Interpretations”—broader pronouncements of the DOL’s views on wage and hour issues, unlinked to a particular fact pattern.

In June 2017, the Trump Administration began undoing some of the sub-regulatory activism of the Obama administration by withdrawing two Administrative Interpretations on independent contractors and joint employers:
  • No. 2015-01: addressed the classification of independent contractors as employees under the FLSA, stating that “most workers are employees under the FLSA’s broad definitions,” essentially creating a presumption of employment for all workers. This Interpretation underscores the importance and level of scrutiny placed on employers to confirm that they are properly classifying workers.
  • No. 2016-01: established new standards for determining joint employment under the FLSA and Migrant Seasonal Agricultural Worker Protection Act. The DOL took the position that “[t]he concept of joint employment, like employment generally, should be defined expansively under the FLSA and MSPA.”
The withdrawal of these Interpretations signaled a major shift in wage and hour policy—away from heightened scrutiny of employers with respect to their classification of workers as employees and for determining joint employment with contractors and other related organizations. Later that month, the DOL announced it would return to the practice of issuing Opinion Letters to provide guidance to employers and employees on FLSA issues. The DOL also reissued 17 previously withdrawn Opinion Letters on a wide variety of topics under the FLSA. This shift strongly indicates that the Trump Administration favors less aggressive regulation and oversight of employers: reverting back to a process that largely serves employers’ interests—at the cost of employees’ wages.

Although the DOL may recover back wages (either administratively or through court action) on behalf of employees that have been illegally underpaid in violation of the FLSA, the Trump DOL has shown that it cannot be trusted to uphold workers’ interests. Accordingly, an employee who believes his/her employer has violated the FLSA should seek guidance from an attorney practicing in this area. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue to http://www.kcnlaw.com/Contact.shtml.


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.