Workplace Due Process For Employees

Improve Processes and Procedures Established to Provide Workplace Due
Process for Employees

Background

Workplace due process includes the various avenues of redress that
employees may pursue when they believe agency management has treated
them unfairly. For example, the equal employment opportunity (EEO)
complaint process is available to employees who believe an action is
discriminatory. An individual who has been suspended, reduced in grade
or pay, or removed may file an appeal. An employee may protest other
management actions by using an administrative or negotiated grievance
procedure.  Unions (or management) may file unfair labor practice
charges or negotiability disputes.

These various avenues of redress are governed by separate legal and
regulatory authorities. Due process is typically pursued first within
the employing agency and, failing resolution, may then be taken before a
third party for adjudication. Since enactment of the Civil Service
Reform Act in 1978, four agencies adjudicate disputes between employees
and agency management: the Merit Systems Protection Board (MSPB), the
Office of Special Counsel (OSC), the Equal Employment Opportunity
Commission (EEOC), and the Federal Labor Relations Authority (FLRA). It
is possible for a mixed case arising from the same set of circumstances
to be pending at the same time before two or more of these agencies.

Decisions by these agencies may be further appealed to the courts.  The
United States Court of Appeals for the Federal Circuit has exclusive
jurisdiction over most appeals from MSPB decisions. Equal employment
opportunity (EEO) and labor cases are handled by other courts, usually
based on geography. These courts may conflict with one another in
deciding similar cases, causing uncertainty in the law as it applies to
federal employees.(1)

Internal agency processes and procedures that must be used prior to
access to the third parties vary by subject matter. They also tend to be
functionally stovepiped, with grievances handled by employee relations
specialists, EEO complaints handled by EEO specialists, and unfair labor
practice charges dealt with by labor relations specialists.

In addition to stovepiping, internal agency systems of redress tend to
be driven to inflexibility by adherence to process and procedural
correctness. Managers are advised of this necessity based on the fear of
being overturned in a third party forum due to harmful error.  Strict
adherence to established administrative procedures governing the large
number of appeals and complaints filed by federal employees every year
has also contributed to high cost and lengthy delays involved in
exercising due process rights.

Implementation of National Performance Review recommendations will
dramatically change the workplace, for managers in particular.
Increased flexibility and elimination of mandatory processes and
procedures will give managers greater freedom to exercise judgment.  For
managers and employees alike, this represents high risk and an
unprecedented culture change.  Managers must be held accountable for
their actions, and employees must have ways to take issue with perceived
unfair or discriminatory treatment. Sensitive, responsive, and fast
avenues of due process protect the rights of both managers and employees
and provide a powerful mechanism for ensuring that managers are held
accountable for their human resource management decisions.

Many federal agencies are turning to alternative dispute resolution
(ADR) methods as a way to improve their internal systems of redress,
with the clear objective of solving problems at the worksite and
reducing the number (and the associated costs) of cases appealed to
third parties. In 1990 Congress enacted two federal laws that endorse
the use of ADR in the way agencies resolve disputes.(2) According to the
authors of a recent article:

Both the scope and the goals of the Administrative Dispute Resolution
Act are ambitious. In effect, the new law endorses the use of
facilitation, mediation, and other more formal procedures (such as
arbitration) as means to resolve the conflicts that inevitably arise in
the conduct of federal government business. The goal of the legislation
is to encourage agencies to use dispute resolution techniques that can
achieve more cost-effective and satisfying results than traditional
administrative procedures or litigation.(3) The Department of Health
and Human Services has made noteworthy progress with interest-based
problem-solving approaches to ADR developed in cooperation with the
National Treasury Employees Union.  Their methods include a Negotiated
Discrimination Complaint Arbitration Process, the Early Complaints
Resolution Process, and the Departmental Appeals Board Mediation
Service.

Need for Change

Critics of the current forums and mechanisms for due process have
recommended the establishment of a single adjudicatory body for federal
employee appeals, complaints, and labor disputes.  The primary reason
cited for change is the issue of overlapping jurisdiction in the
processing of complicated mixed cases, which causes confusion and
frustration on the part of everyone involved.(4) An additional
complication is the jurisdiction of the federal courts with review
authority over federal EEO and labor matters. While the Court of Appeals
for the Federal Circuit has exclusive jurisdiction of appeals from MSPB,
jurisdiction of the other courts in other areas is often based upon
geography. Thus, federal employees governed by common nationwide
policies and laws may "receive inequality of justice as a result of
nothing more than their residence in different parts of the country."(5)
Additionally, the lack of nationally uniform resolution of issues in EEO
and labor matters may contribute to legal confusion about the governing
laws from circuit to circuit, may increase the cost of litigation, and
may be wasteful and inefficient.(6) In addition to the procedural
constraints, internal agency systems of redress are often adversarial in
nature and do not have the confidence of managers or employees. They are
costly and time consuming. Workplace problems that are not resolved in a
timely and sensitive way impair productivity and morale and impede
mission accomplishment. Use of ADR methods during the informal or early
stages of due process can alleviate these problems, thereby improving
the workplace climate, reducing the number of formal cases pending
before third parties, and reducing the costs of litigation.

Cross References to Other NPR Accompanying Reports

Department of Labor, DOL04: Expand the Use of Alternative Dispute
Resolution by the Department of Labor.

Improving Regulatory Systems, REG03: Encourage Consensus-Based
Rulemaking; and REG06:  Encourage Alternative Dispute Resolution when
Enforcing Regulations.

Endnotes

1. U.S. Judicial Conference Committee on the Bicentennial of the
Constitution of the United States, A History, 1982-1990 (Washington,
D.C.: The United States Court of Appeals for the Federal Circuit, 1991),
p. 3.

2. Administrative Dispute Resolution Act (Public Law 101-552) and
Negotiated Rulemaking Act (Public Law 101-648).

3. Lawrence E. Susskind, Eileen F. Babbitt, and Phyllis N.  Segal, "When
ADR Becomes the Law: A Review of Federal Practice," Negotiation Journal,
vol. 9, no. 1 (January 1993), p. 59.

4. Feder, David L., "Pick a Forum--Any Forum: A Proposal for a Federal
Dispute Resolution Board," Labor Law Journal (May 1989), p.  268.

5. U.S. Judicial Conference Committee, p. 3.

6. Ibid., p. 4.