Federal Employee Rights and Challenges Under the Trump Administration

The federal civil service is facing significant workplace challenges—some unprecedented in our lifetimes—due to the agenda being implemented by the second Trump administration relating to the federal workplace. This article discusses not only some of these challenges but also some of the unique workplace rights and protections afforded to federal employees.

Challenges Faced by Federal Employees

Some of the unprecedented challenges faced by federal employees under the current administration include:

• Mass firings of probationary employees, which has reached into the tens of thousands. Current legal challenges to these probationary firings center around defining them as illegal reductions in force (RIFs) that did not adhere to applicable RIF procedures.
• Mass resignations outside existing statutory frameworks, resulting in the separation from employment of tens of thousands of federal employees, who accepted the “Fork in the Road” deferred resignation offer. (See “Deferred Resignation Email to Federal Employees,” U.S. Office of Personnel Management, https://www.opm.gov/fork/original-email-to-employees/ (last visited April 2, 2025) (the “Fork Offer”).)
• A new “loyalty” standard for continued employment, (see the “Fork Offer”), which conflicts with the existing merit-based system that has existed since the end of the nineteenth century under the Pendleton Civil Service Reform Act of 1883.

Additional challenges faced by federal employees include the loss of Diversity, Equity, Inclusion and Accessibility programs (DEIA), and the purported loss of legal protections on the basis of gender identity notwithstanding the Supreme Court’s Bostock decision. Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing” (Jan. 20, 2025); Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (Jan. 20, 2025); Bostock v. Clayton County, 590 U.S. 644 (2020).

In addition, some federal employees are again facing the prospect of position reclassifications under an executive order that would strip them of civil service protections. Executive Order 13957, “Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce” (Jan. 20, 2025). This forthcoming wave of reclassifications is intended to occur on an agency-by-agency basis.  Each agency will review positions for potential inclusion into a category known as “Schedule Policy/Career” (formerly known as “Schedule F”), if they are determined to be “policy-influencing” and “not normally subject to change as a result of Presidential transition.” “Policy-influencing” positions are defined as positions of a “confidential, policy-determining, policy-making, or policy-advocating character.” For example, positions that involve the “supervision of attorneys,” “working with proposed regulations,” and “conducting collective bargaining negotiations” on an agency’s behalf are defined as “policy-influencing” positions. In other words, the executive order affects high-level career civil servants at levels of government just below political appointees.

There have also been targeted firings at-will of the heads of independent agencies, including members of the Equal Employment Opportunity Commission, the Federal Labor Relations Authority (the NLRB’s counterpart for unionized federal employees), the Office of Special Counsel (a watchdog agency that enforces whistleblower and other protections within the federal government), and the Merit Systems Protection Board (a court-like agency that processes federal employee challenges to adverse actions, such as being fired, through hearings before administrative judges).

These firings have significant implications for federal employees, because each of these agencies are involved in the regulation of the federal workplace. Relatedly, over a dozen inspectors general (IGs), who act as independent government watchdogs that investigate waste, fraud, abuse, and other illegality within their respective federal agencies, were fired at-will. By statute, IGs are entitled to have notice of their proposed termination sent to Congress, with sufficient explanation, thirty (30) days before being removed from office.

Court challenges abound to these and other actions by the Trump administration. Among them are lawsuits by federal employee unions and public-interest organizations acting on behalf of federal employees. In addition, some of the individual IGs and independent agency heads have brought lawsuits to challenge the terminations of their employments.

In some cases, agency heads who challenged their firings were successful at obtaining injunctive relief to keep them in their jobs. But, to this author’s knowledge, those injunctions have all been stayed upon appellate review.

The prevailing view among appellate courts has been that the President should be permitted to fire the heads of executive agencies at-will. And that the statutes providing protection from at-will firing for, for example, the heads of the Merit Systems Protection Board and the Office of Special Counsel, are unconstitutional and interfere with the President’s Article II prerogative to control executive branch officers.

Arguably, the case brought by former Board member Kathy Harris, who was fired from her position on the Merit Systems Protection Board, presents the strongest case in favor of independence from at-will firing, because of the quasi-judicial and independent nature of that agency, as contemplated by existing Supreme Court precedent such as Humphrey’s Executor v. United States, 295 US 602 (1935).

Unique Workplace Rights and Protections for Federal Employees

Despite the challenges they are facing, federal employees have significant rights and protections. This article highlights three sets of those rights and protections that are, in at least some respects, unique to the federal workplace.

1. Federal employees have the right to blow the whistle on waste, fraud, abuse, and other illegality under the Whistleblower Protection Act, and to be protected from retaliation for exercising those rights. The Office of Special Counsel is the main bulwark against whistleblower retaliation, and is empowered to both investigate and remedy unlawful whistleblower retaliation. In certain circumstances, the Office of Special Counsel can seek a stay from the Merit Systems Protection Board on behalf of an employee who alleges unlawful discipline because they made protected disclosures. A federal employee’s ability to stave off being fired through injunctive relief is a powerful and unique protection for whistleblowers. The Office of Special Counsel also receives complaints of whistleblower retaliation from federal employees, who may then file those complaints with the Merit Systems Protection Board after allowing the Office of Special Counsel an opportunity to investigate the claim.
2. Federal employees have the right to initiate discrimination, harassment, and retaliation claims through an Equal Employment Opportunity (“EEO”) process unique to federal employees. Under 29 CFR Part 1614, federal employees initiate an EEO claim by making contact with an EEO counselor within forty-five days of the discrimination, retaliation, or most recent harassment. All agencies must have a designated EEO office for this purpose. (See “Federal Agency EEO Directors,” U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/federal-sector/federal-agency-eeo-directors (last visited February 14, 2025).) Initially, a federal employee’s EEO claim is processed by the employing agency, not by the EEOC. Agency processing of an EEO claim culminates in a formal investigation and the issuance of a Report of Investigation (or “ROI”). After the ROI is issued, the employee has thirty days from receipt to elect either: A.) a hearing before an EEOC administrative judge, which is an administrative litigation culminating a bench trial that is usually bifurcated on liability and damages; or B.) a Final Agency Decision (or “FAD”) from the agency (in other words, a legal analysis of liability and damages, written by the agency’s EEO office, based on the ROI evidence). Employees looking for the most direct path to federal court, for example, typically request a FAD so they can more quickly exhaust their administrative remedies.
3. Federal employees who meet the statutory definition of a covered “employee” under 5 U.S.C. § 7511(a)(1), and who are not otherwise excluded from coverage under 5 U.S.C. § 7511(b), have MSPB appeal rights to challenge misconduct-based adverse actions, such as terminations (or “removal”), demotions in grade or pay, and suspensions greater than fourteen days, among others. (Performance-based adverse actions rely on a different definition of “employee,” under 5 U.S.C. § 4301, and are not covered here.) Such adverse action appeal rights are special, because they require the employing agency to prove by a preponderance of the evidence that an employee engaged in misconduct as specifically alleged against them and that the penalty of removal, demotion, or suspension was reasonable under a twelve-factor test known as the Douglas factors.  Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). In contrast, employment claims in the private sector typically require the employee to prove by a preponderance that an adverse action, such as the termination of an employee’s employment, was unlawfully motivated, such as a discrimination claim under Title VII of the Civil Rights Act. In other words, civil servants with Merit Systems Protection Board appeal rights enjoy unique protections.  Specifically, they enjoy protections similar—but by no means identical—to those of a defendant in a civil action, while the employing agency is left to prosecute its case akin to a plaintiff.

Conclusion

Federal employees have unique workplace rights and protections rooted in a merit-based system that has existed for nearly 150 years. But that merit-based system could potentially be replaced by a loyalty-based one, depending on how recent executive actions and court challenges play out, not to mention the potential for legislative action.  In the meantime, federal employees are facing significant challenges and uncertainty in the workplace, which may continue for the foreseeable future. How and when this situation resolves is anyone’s guess.