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House Panel Votes to Gut Due Process
July 23, 2018
“No person shall be… deprived of life, liberty, or property, without due process of law.”
- 5th Amendment, the Constitution
Due process is a democratic value all Americans cherish. It gives us the right to defend ourselves if accused of wrongdoing. Due process is especially important in a situation where we might be unfairly or falsely accused of wrongdoing. Simply put, without due process, we cannot have a democratic system. Only in a dictatorship where citizens are not protected by a system of due process and could be wrongfully punished. Unfortunately, some politicians are taking our country in that direction.
There are several bills pending in Congress that would gut due process, and the House Oversight and Government Reform Committee on July 17 passed two of them.
These bills seek to game the system and limit due process for America’s workforce to the point where there would not be a fair outcome. Here’s how:
1. The No MERIT Act (H.R. 559)
The bill was introduced by Rep. Barry Loudermilk of Georgia and currently has 55 co-sponsors. See if your representatives are a co-sponsor here. Under the bill:
- You can no longer appeal adverse actions and unfair reductions in force actions through the grievance procedures. The only venue for you to appeal these unfair actions is the severely underfunded Merit Systems Protection Board (MSPB), which reviews similar cases of the entire federal workforce of 2 million employees. The agency’s decision becomes final if the MSPB does not issue a decision within 30 days.
- You won’t have enough time to mount a credible defense if you are accused of performance or disciplinary issues as the bill shortens the response time drastically.
- Your manager is no longer required to work with you on a performance improvement plan to address performance issues. This provision will result in an enormous cost of hiring and training new employees, which will be paid for by the taxpayer.
- The bill lowers the evidentiary burden on your manager to prove why you should be fired.
- If you’re a new employee, for two years you can be fired for any reason with little rights since the bill extends the probationary period from one year to two. This is a backdoor way of gutting workers’ rights.
- Your agency can strip you of bonuses you legally received if you’re later found to have committed misconduct.
2. Merit Systems Protection Board Reauthorization Act
The Executive Order issued by the administration already limits your ability to grieve certain issues – it eliminates the grievance/arbitration option for terminations, performance appraisals, and awards. As a result, your only option is to challenge an unfair removal or performance evaluation to the MSPB. But this bill, which reauthorizes and modifies the board’s authority, would make it harder for you to do that. Here’s why:
- You are now required to pay a fee to file an appeal with MSPB, which could be hundreds of dollars depending on where your appeal is filed. After being removed from your position no matter how unjust it is, you won’t get paid. So you may not have your day in court if you can’t pay the fee.
- The bill allows the board to grant a “summary judgment” – a ruling against one party without a full trial. In practice, this means you may never receive a hearing to which you are entitled.
- Under the VA Accountability and Whistleblower Protection Act, appeals filed by Veterans Affairs employees can be heard by the full MSPB board. But the bill contains no regulations implementing this section of the law, so it is unclear who can hear a VA case or where an appeal can be filed.
“Calls to decrease due process rights like those in H.R. 559 and the Merit Systems Protection Board Reauthorization Act are “dog whistles” for making the career service subject to the partisan or personal whims of supervisors and political appointees without real recourse,” AFGE Legislative Director Tom Khan wrote in letter to the House Committee chair and ranking member. “In this case, federal workers will be inhibited from carrying out their jobs in service to the public.”
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