Congress specifically focused on eliminating coerced political activity in structuring the federal civil service system. United States Code, Title 5, Section 2302(b) says that federal employees are protected against “coercion for partisan political purposes.” This protection extends to most employees and applicants for employment in Executive Branch agencies.
There are two procedural circumstances in which the prohibited personnel practice (“PPP”) of coerced political activity can be asserted by an employee: as an affirmative claim or as a defense to an adverse action.
Affirmative Claim to OSC
If a federal employee or applicant believes that a PPP has occurred, the employee may file a complaint with the U.S. Office of Special Counsel (“OSC”). OSC may investigate and prosecute coerced political activity under both the PPP provision of Title 5 and the Hatch Act.
After receiving a complaint of coerced political activity, OSC will conduct an investigation into the allegation. The investigation may include a review of records and interviews of the complaining employee and witnesses. Based on OSC’s investigation, OSC can seek corrective action, disciplinary action, or both. If an agency refuses to take action recommended by OSC, the matter can be brought before the MSPB.
With an affirmative claim of PPP coerced political activity (where the MSPB would not otherwise have jurisdiction over the claim), individual employees or applicants cannot bring a legal claim on their own behalf. The claim can only be brought before the MSPB by OSC.
As Defense to Personnel Action
An employee subject to an adverse action over which the MSPB has jurisdiction may claim that coerced political activity was a motivating factor in the agency’s action. For example, employees have claimed that termination actions were motivated by the employees’ refusal to engage in coerced political activity. OSC has the authority to delay an agency’s proposed personnel action if the action resulted from coerced political activity. If coerced political activity is raised as an affirmative defense in an MSPB appeal of an adverse action, the employee must produce evidence to support the claim.
If you have been subjected to coerced partisan political activity, contact KPW today to discuss your legal options.