Your Rights at Work
As an employee, you have a number of rights in the workplace. This page provides an overview of those rights, including:
- Brookhaven Rights: Protection from coercion during questioning
- Garrity Rights: Protection from threat of job termination or criminal prosecution based on investigatory interviews
- Loudermill Rights: A public employee’s right to a redetermination hearing
- Douglas Factors: The right to like penalties for like offenses in like circumstances
- Weingarten Rights: The employee’s right to union representation
- The Federal Privacy Act of 1974: Protection from the knowing and willful disclosure of employee information and records to the unauthorized.
Protection From Coercion During Questioning
In situations where bargaining unit employees are being interrogated by an Agency representative in preparation for a proceeding before a third party, like arbitration, where the union is either a party to the proceeding or acting as a representative, the agency representative must comply with the following safeguards to mitigate the potentially coercive effects of the situation in order to protect employees’ rights under the Section 7102 of the Federal Service Labor-Management Relations Statute (5 United States Code Chapter 71):
- Inform the employee of the purpose of the questioning, that his/her participation is voluntary, and that no reprisal will occur if he/she refuses
- Ensure that the questioning occurs in a non-coercive (non-threatening) context and
- Limit the questions to the scope of the legitimate purpose of the inquiry, i.e., to the existence of relevant facts, as opposed to the Union’s strategy or what questions the Union asked.
Reference: 9 FLRA No. 132 Internal Revenue Service and Brookhaven Service Center and National Treasury Employees Union and National Treasury Employees Union, Chapter 99
Protection From Threat of Job Termination or Criminal Prosecution Based on Investigatory Interviews
Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. The Constitution’s Fifth Amendment provides protection during the interrogation of public employees (“Garrity Rights”) For example, in Garrity v. New Jersey, 385 U.S. 493 (1967) (Argued November 10, 1966 Decided January 16, 1967), the Supreme Court held that an employee could not be disciplined for invoking their Constitutional Rights to remain silent and seek legal representation during the course of a criminal investigation. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying work-related charge. To ensure that your Garrity rights are protected, you should ask the following questions:
- If I refuse to talk, can I be disciplined for the refusal?
- Are my answers for internal and administrative purposes only or is there a possibility of criminal prosecution associated with this interview?
A Public Employee’s Right to a Redetermination Hearing
In another decision announcing a Constitutional right for public employees not possessed by private employees, the Supreme Court in Cleveland Board of Education v. Loudermill et al. (470 U.S. 532 (1985), 470 U.S. 532) March 19, 1985, held that most public employees are entitled to a hearing before they are discharged. These are hearings prior to decisions by the Agency to suspend, demote or terminate an employee. However, the “hearing” is not a full evidentiary hearing and need not include the opportunity to cross-examine your accusers. All that is required is:
- Oral or written notice of the charges and time for hearing
- An explanation of the employee’s evidence and
- An opportunity to present “his side of the story.”
For Federal employees, the right to make a written and/or oral reply to a proposed disciplinary/adverse action is codified at 5 USC 7503 and 7513.
The determination of which penalty to impose in a particular situation requires the application of responsible judgment. Disciplinary action taken is based on the conclusion that there is sufficient evidence available to support the reason(s) for action and that the disciplinary action is warranted and reasonable in terms of the circumstances which prompted it. In determining the appropriate remedy, one factor management must consider is whether a particular disciplinary penalty has been consistently applied among other similarly situated employees. This means that penalties will be applied as consistently as possible. Management must establish that the penalty selected does not clearly exceed the limits of reasonableness. A well-known Merit Systems Protection Board (MSPB) case (Douglas v. Veterans Administration, 5 M.S.P.R. 280) addressed this issue in detail. A number of factors which management must weigh in deciding an appropriate course of action are discussed in this case. These factors are often referred to as the Douglas factors. Some factors may not be applicable to a given case relevant factors must be considered. Bear in mind, however, that certain offenses (e. g., drug trafficking) warrant mandatory penalties. Any decision notice concerning an adverse action which may be reviewed by the MSPB should cite the fact that the relevant Douglas factors were weighed in reaching the decision. The Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Among the factors the Board considers are:
- The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated
- the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position
- the employee’s past disciplinary record
- the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability
- the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties
- consistency of the penalty with those imposed upon other employees for the same or similar offenses
- consistency of the penalty with any applicable agency table of penalties
- the notoriety of the offense or its impact upon the reputation of the agency
- the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question
- potential for the employee’s rehabilitation
- mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter and
- the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
The Employee’s Right to Union Representation
In a 1975 case (NLRB vs. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689), the U.S. Supreme Court announced the rights of unionized employees to have a union representative present during investigatory interviews. These rights have become known as the Weingarten rights. Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation.
The Privacy Act of 1974
Protection From the Knowing and Willful Disclosure of Unauthorized Employee Information and Records
The Privacy Act of 1974 gives federal employees several rights regarding information that is collected, kept as records, and/or released about them during the course of employment with the Federal government. There are criminal penalties for the knowing and willful disclosure of employee information and records to those not entitled to receive them the willful maintenance of a record that is not in accordance with the privacy act and the knowing and willful attempt to gain access to an individual’s records under false pretenses. The law requires agencies to obtain written permission from an employee before releasing information about that employee. Note that the privacy act and other agency regulations may exempt certain information and release of information for certain reasons. As an example, routine internal releases and releases for law enforcement purposes can be done without the employee’s consent. As another example, if the agency does not provide an adequate alternative means for a union to communicate with the bargaining unit, the agency can provide the name and home address to the union without the employee’s consent. Under the Privacy Act, employees have the right to inspect and receive copies of their files and can request corrections or amendments to erroneous information. If the agency refuses a request for corrections or amendments, the employee can appeal the denial in writing to the contact person which should be listed in the denial. Upon losing such an appeal, the employee has the right to file a brief statement to accompany the records wherever and whenever they are sent. Existing employees should direct requests about their records to the employing agency’s personnel office contact. Former employees should direct their requests to the Office of Personnel Management office in Washington, DC. The employee should include his or her full name, date of birth, and social security number to ensure the proper identification of the records. Finally, employees have the right sue an agency for refusing to release or amend their records, for improper disclosure of information, or for the overall willful and intentional disregard of the provisions in the Privacy Act. An employee may be entitled to monetary damages in certain circumstances if that employee can prove, among other things, that he or she was adversely impacted as a result of the agency’s intentional and willful disregard of Privacy Act provisions. Court costs and attorney fees may also be rewarded.