AFSA is Here for You: Know Your Rights

Dear Members,

Coming through loud and clear in your recent messages is your need for clarification and guidance on how to understand and interpret the multiple executive orders and memoranda that have been issued by the new administration and OPM. We have already passed on to agency leadership the concerns you have expressed to us, and we are pushing them for clarification and more detailed guidance.

We know that many of you have asked about the “deferred resignation” email from OPM that was sent out to all federal employees on January 28. We are urgently seeking answers on if and how it applies to the Foreign Service as well as how it will be implemented. At this time, AFSA advises members to wait for additional guidance from their respective agencies before making such a momentous decision. Such questions as whether Foreign Service members are eligible and other concerns are still unresolved.

Below are some of the most important rights and protections of which you should all be aware, as compiled by AFSA’s labor lawyers. Since each agency implements regulations slightly differently, please consult your AFSA agency vice presidents or representatives if you need more specific guidance.

Disciplinary Action (to Include Separation) Based on Misconduct

Tenured, untenured, and limited non-career employees who are proposed for disciplinary action, to include separation, based on allegations of misconduct, are entitled to a proposal which sets forth the basis for the proposed disciplinary action, and the opportunity to respond in writing and orally. All Foreign Service employees proposed for separation for cause, other than those convicted of a felony, have a statutory right to a hearing before the Foreign Service Grievance Board.

Performance-Related Separation

Limited non-career appointees may be separated at any time, akin to an “at-will” employment. If separation is based on allegations of misconduct, see above guidance.
Untenured employees can be separated for failure to gain tenure or for unsatisfactory performance.
Tenured members may be separated due to time-in-class and time-in-service limitations or poor performance as determined by a performance standards board.
As discussed above, all members (tenured, untenured, and LNA) can be separated for misconduct or a failure to maintain a security clearance.

Reductions in Force (RIFs)

Reductions in Force (RIFs) in the Foreign Service are rare and must follow detailed procedures set forth in the Foreign Affairs Manual (3 FAM 2580), or for USAID, the ADS chapter (ADS 454). RIFs are based on competition groups generally consisting of employees in the same grade and the same cone/specialty/backstop.

Employees who may be impacted by a RIF:

Agencies determine which categories of employees will be affected by a RIF.
Employees compete for retention based on ranking factors like promotions, language skills, and veterans’ status.
Typically, LNAs are separated first, followed by untenured members, and then tenured employees.
Employees who are riffed have limited rights to file a grievance with the Foreign Service Grievance Board or an appeal with the Merit Systems Protection Board.
Employees separated by a RIF prior to reaching the age and years of service required for a voluntary retirement may receive their full retirement or severance pay. FS-1s and above in that situation would receive an immediate annuity for the rest of their life regardless of their age and years of service. FS-2s and below in the FSPS retirement system would receive a severance pay equal one-twelfth of a year’s salary at his or her current salary rate for each year of service, but not exceeding a total of one year’s salary.

Due Process Rights for Separations Other than a RIF

Employees can file grievances with their agency. Denial of agency-level grievances can be appealed to the Foreign Service Grievance Board.
In many cases (except separation for cause or RIF), employees may remain in paid status until a final decision on the proposed separation.
Employees eligible for an immediate annuity (typically age 50 with 20 years of service) cannot be deprived of it, except in cases involving espionage.

Employees who wish to contest their separation through the grievance system must file a grievance before they go off the rolls.

Prohibited Personnel Practices (PPP)

Discrimination, including political affiliation bias, is prohibited.
Employees can file complaints with the Office of Special Counsel if they believe a PPP has occurred. See Prohibited Personnel Practices Overview for categories of PPP.

Weingarten Rights

Weingarten rights are the rights of members of AFSA bargaining unit to have a union representative present during interviews that could result in disciplinary action against the employee. Discipline could include written reprimands, suspension, or termination. These rights were established by the Supreme Court in the 1975 case National Labor Relations Board v. J. Weingarten, Inc. Please note that employers are not required to inform the employee of these rights. All employees, regardless of their bargaining unit status, have the right to have an attorney or other representative present during any interview that could lead to disciplinary action. For more information on Weingarten rights, please click here.

Whistleblower Protections

Over recent years, AFSA has partnered with the Government Accountability Project (GAP) staff to bring information on whistleblower protections to AFSA members. This Foreign Service Journal article and our joint webinar provide information on the legal rights of Foreign Service members who make the decision to bring allegations of waste, fraud, or illegal activity to the fore.

Bullying and Harassment

For workplace bullying issues, differing expectations, and communication issues, the Office of Ombudsman (S/O) can act as a neutral party to help manage a solution. S/O provides resources for dispute resolution on an informal and voluntary basis. The Office of the Ombudsman maintains strict confidentiality. Note: S/O does not intervene in formal complaints, HR complaints, union and formal grievances, EEO matters, or OIG matters.

If you believe you have been discriminatorily harassed based on conduct that showed hostility towards you based on race, color, sex (including pregnancy, sexual orientation, and gender identity), national origin, age (40 or over), disability, genetic information, participation in the discrimination complaint process, please contact the Office of Civil Rights (S/OCR) at SOCR_Harassment@state.gov. The newly created S/OCR Anti-Harassment Program is also available to employees who have encountered workplace harassment issues. Depending on the circumstances of your case, employees may also have the option to pursue alternative paths such as mediation or filing a grievance.

Contacting Congress

We’ve also seen interest from AFSA members in expressing their concerns to members of Congress in their personal capacities.

If you do not know your members of Congress, you can locate them here. Please note that federal employees must comply with the Anti-Lobbying Act when communicating with Congress. Please see a summary of AFSA’s guidance below and a longer version on our website here.

The Anti-Lobbying Act (18 U.S.C. 1913) prohibits unauthorized government employees from using appropriated funds to influence Congress on legislation.

Employees have the constitutional right (5 U.S.C. Section 7211) to petition Congress in a personal capacity but must clarify that their views are personal and do not represent their agency.
Personal communications must not occur during duty hours and employees must not use any government resources.
Employees also cannot assist or encourage the public to lobby Congress on behalf of the government.
Employees should not suggest others contact Congress about legislation in an official capacity.

Professional Liability Insurance

AFSA strongly advises members to obtain professional liability insurance (PLI). More information about PLI can be found here. To access a list of providers, please click here.

Social Media Guidance

During this time of profound change, we want to remind you to read our guidance on the usage of social media for federal employees.

Requesting Assistance From AFSA

To request assistance from AFSA, we recommend members use their personal email accounts to email member@afsa.org. It is AFSA’s policy to protect its members’ privacy and confidentiality to the greatest degree possible. As such, only AFSA staff whose official duties require them to review requests for assistance shall have access to these queries and requests.

AFSA communications back to you will be sent to the primary email on your AFSA account. Please ensure you have updated the primary email on your account by visiting your My Account page and selecting contact info. If you have more than one email address on your account, your primary email will be indicated by a flag icon. If you need assistance or are not receiving AFSA email, please let us know by emailing member@afsa.org.

Lastly, we understand that this period of uncertainty is challenging, and we appreciate your patience as we work to obtain the clarity you need. As soon as we have concrete information to share, we will communicate it to you promptly. In the meantime, please continue to reach out with your concerns by emailing member@afsa.org.

Thank you for your dedication and service.