At-Will Employment, Workforce Cuts and Other Bills From Congress’ First Week
January 6, 2016
Lawmakers have wasted no time introducing measures to overhaul the civil service and adjust the size of the federal workforce, putting forward several pieces of legislation in the first week of the 115th Congress to make wide-ranging reforms.
Perhaps most notably, Rep. Todd Rokita, R-Ind., laid out his plan to reintroduce the Promote Accountability and Government Efficiency Act to turn all new federal workers into at-will employees. First presented in October during the last session of Congress, the measure would strip new federal hires from due process protections, instead allowing supervisors to fire them without notice or the opportunity to appeal. It would also allow agencies to immediately suspend current feds without warning and would prohibit any employees not receiving top marks on their performance reviews from getting a pay raise.
The at-will portion of the measure would only apply to new employees hired one year after its enactment, and allow agency heads to fire workers “without notice or right to appeal.” Employees fired under certain circumstances would retain appeal rights, but only to one agency. An excepted employee could, for example, appeal to the Merit Systems Protection Board or the Equal Employment Opportunity Commission, but not both. Agencies would be required to notify new hires they are at-will employees upon onboarding them.
Other provisions of the bill would prevent feds found guilty of a work-related felony from collecting a retirement pension and allow agency heads to cut Senior Executive Service employees’ pay by downgrading them to a General Schedule position. It also would end the practice of official time, which allows employees to conduct mediation-type union activity while receiving a federal salary and working in a federal workspace.
The bill earned immediate rebuke from federal employee advocates, who said it would effectively end the apolitical civil service.
Is this simply a reaction to being told that finally federal employees were going to be treated like every non-government emploee for a change? The text of the bill can be read HERE.
Section 2: Let’s consider the term “at-will” first. This is a sore point for every employed person in the USA. I actually do believe, from personal experience, that “at-will” needs to addressed in labor laws to better protect individuals from improper or personal vendetta belief firings. Before this bill is passed, I hope that this issue will be addressed to better serve ALL employees across the nation.
However, also having been both, I do believe that every federal employee regardless of government level who is not appointed but hired should have to fall under the same laws as those not in government. So oops. Sorry, I like the idea.
The National Conference of State Legislators made this statement about the term with the caveat that they cannot provide advice or assistance to private citizens or businesses regarding employment-related matters and that consulting a state department of labor or a private attorney is necessary.
“A. At-Will Defined
— “At-will” means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.
— “At-will” also means that an employer can change the terms of the employment relationship with no notice and no consequences. For example, an employer can alter wages, terminate benefits, or reduce paid time off. In its unadulterated form, the U.S. at-will rule leaves employees vulnerable to arbitrary and sudden dismissal, a limited or on-call work schedule depending on the employer’s needs, and unannounced cuts in pay and benefits.
Cause generally includes reasons such as poor employee performance, employee misconduct, or economic necessity. An employment contract may specifically outline the situations or employee actions that would lead to termination for cause.
Common Law Exceptions to the At-Will Presumption
Over the years, courts have carved out exceptions to the at-will presumption to mitigate its sometimes harsh consequences. The three major common law exceptions are public policy, implied contract, and implied covenant of good faith.
The at-will presumption is strong, however, and it can be difficult for an employee to prove that his circumstances fall within one of the exceptions. Further, not all of the exceptions are recognized by all jurisdictions.”
The article goes into more detail on each of those topics and can be read HERE.
Having worked in both business and government sectors, I know exactly how difficult this provision is for average Americans.
According to Lawyers.com (which again cannot provide legal advice but information) this is how regular citizens deal with “at-will”:
Q: When is someone not an at-will employee?
A: In almost every state, the general rule is that employees work at will. This means the employee can quit at any time for any reason, and the employer can fire the employee at any time for any reason (as long as the reason is not illegal). Montana is the only state without a default at-will employment rule; in Montana, employees cannot be fired without cause once they complete a probationary period of employment.
Q: Can an at-will employee be fired for any reason?
A: At-will employees cannot be fired for illegal reasons. For example, federal antidiscrimination laws prohibit employers from firing employees based on race, color, national origin, sex, pregnancy, religion, age (40 and older), disability, and genetic information. State laws may protect additional characteristics, such as sexual orientation or gender identity. Employees cannot be fired in retaliation for exercising their rights under these laws, either.
Federal and state laws protect employees in several other ways. For example, it’s generally illegal to fire an employee for filing a workers’ compensation claim, making a wage and hour complaint, or reporting a workplace health and safety violation. Many states also have a catch-all provision, which prohibits employers from firing employees for any reason that would violate public policy.
Q: I was recently fired from my job. I never received any warnings and got good performance reviews. Was I wrongfully terminated?
A: If you’re an at-will employee, your employer is not required to give you any advance notice or warnings before you’re fired. However, it does raise some red flags when employees are fired out of the blue, despite glowing performance reviews. In these cases, it may appear that the employer fired the employee for an illegal reason—which would lead to a wrongful termination claim. For example, if your employer hired a new manager who said he didn’t think women should work in sales, and the manager fires you three days later, you may have a claim that you were illegally discriminated against. You should consult with an employment lawyer if you have any doubts as to why you were fired.
One of my pet peeves is that some things make no sense when bills are prepared and when they “edit” a current law. This is one of those times.
Section 3. Immediate Suspension of employees for misconduct or poor performance. Chapter 75 of title 5, United States Code, is amended …
(1) the term `employee’ has the meaning given such term in section 7501(1) and includes any employee of the United States Postal Service or the Postal Regulatory Commission, but does not include any at-will employee…
Okay, the congressman goes to the trouble of forming a bill…he talks about “at-will” and we have all seen ample evidence of employees of government who are NOT paid by the postal service or regulatory commission — sooo, what purpose does this serve? Or like usual, is there a piece missing here that says ALL federal employees are paid through the Postal Service? Seriously, I was paid as an employee through the Navy or rather its civilian division but I don’t remember ever seeing “postal employee” written on a check. Granted that has been roughly fifteen years ago but has it changed since then?
Also why does Section 3 of the bill not include “at-will”? IF the purpose is to say that ALL employees are “at-will” then I am confused. I get that we all are upset that a federal or state employee who is determined to have been abusing position is not terminated but allowed to continue to draw salaries for an unlimited time until their appeals are exhausted. That is wrong. When non-government employees are found guilty of a crime, they are terminated and lose any income from that time forward. Generally being fired does that unless some package given by the company is provided for a two-week separation time period.
Section 5. Restrictions of pay raises.
(a) In General.–Notwithstanding any other provision of law, an employee may not receive an increase in annual rate of pay if such employee did not receive at least a score of 4 or 5 out of 5 (or an equivalent rating with respect to a performance appraisal system that does provide for such a scoring system) on such employee’s latest performance review under the performance appraisal system applicable to such employee.
This one I see a legitimate problem with. Has the congressman considered that government agencies are even more backbiting political animals than non-government? What happens when one person takes a dislike or uses personal beliefs for performance ratings? This is totally unfair especially when for a fact I have known superiors that refused to give 4 or 5 out of 5 ratings because they believe that there is no perfect employee – yada yada. Personal ratings from superiors really do have to be based on criteria not personal opinion or bribery.
So this is why I see that the bill needs to be reworked. Not because federal employees are panicking because cushy, tenured jobs are being made to be no better or worse than non-government but because aspects of the bill need further review and reconciliation with current labor laws.
If laws are made affecting the public, then those laws should be applicable to all including congress and federal employees, period.
We in the public have known for years that government has allowed a lot of nincompoops to be hired and never fired. We have also seen when viewing congressional hearings just how stupid employees can be about everyday functions. We have watched and railed at the unfairness where suspension was nothing more than a slap on the wrist for them while spending more taxpayer money to pay for forced suspension vacation or retirement when we are at risk of losing all we work to achieve.
Time to get real congress…This is not about your public persona after having been elected. This is about the lives of everyone in the USA not only today but for generations to come. Make laws that are well-thought out not hastily thrown together for “political or popularity rating”.