Employment discrimination and unlawful employment practices occur against employees who work in local, state, and federal government positions. Government employees who believe they have been unlawfully treated are faced with unique opportunities and challenges in pursuing those claims. At Wiley Walsh, P.C., our Austin employment lawyers have experience helping government workers effectively assert their claims.Government Employers may not Take Employment Actions that Violate the U.S. Constitution
The U.S. Constitution prohibits the government from taking certain actions against citizens. Government employee do not generally forfeit those rights by accepting employment with a governmental entity. For example, most government workers may not be fired for speaking out as a citizen on a matter of public concern or for supporting an elected official’s opponent in a campaign. Government employees are also entitled to equal protection of the law under the Constitution. Some government workers have due process rights associated with their positions.Federal Government Employees have Special MSPB Rights and Procedures for Asserting Them
Often, federal employees who have been terminated, demoted, suspended, furloughed, or removed have the right to appeal such a decision to the Merit Systems Protection Board, or the MSPB. The MSPB protects the civil service system for the United States and is not limited to discrimination and retaliation claims. Through what are called Prohibited Personnel Practices, most federal employees are entitled to fair and equitable treatment in all aspects of their employment, including performance, even if the unfair treatment was not necessarily based on an otherwise protected characteristic such as race, sex, disability, or religion. Under MSPB regulations, some employment decisions can also be reversed if the federal agency failed to follow proper procedures in addressing an employee’s behavior or performance. For example, a federal employee covered by the MSPB must be given adequate notice and a genuine chance to improve performance before some adverse actions, such as suspension or termination can be taken.Government Employees may not be Retaliated Against for “Blowing the Whistle.”
Another protection local, state, and federal employees have is the protection from retaliation for blowing the whistle on unlawful activity within the government. However, whistleblowing protection for government employees can be confusing and counterintuitive. Deadlines also tend to be short. Therefore, if you believe you have been retaliated against for reporting a violation of law, it is important to consult with an Austin employment attorney to discuss your situation as soon as possible.Suing the Government can be Complicated. An Experienced Employment Attorney can Help You Avoid Potential Pitfalls.
Asserting claims against the government can be difficult because of a doctrine called sovereign immunity. Sovereign immunity prevents lawsuits against a governmental entity unless the entity has expressly consented to that lawsuit. Sometimes a claim can only be asserted against a government employer in certain courts or in a certain way. For example, state employees may not bring lawsuits directly against the State of Texas for violations of some federal laws and the U.S. Constitution. Some of those claims can be brought through a process known as an Ex Parte Young action, which is named after the Supreme Court case that established a procedure for asserting claims against state officials in their official capacities. Sovereign immunity may also limit the damages available to a worker asserting a claim.
Additionally, government officials themselves may be entitled to another type of immunity called qualified immunity. Qualified immunity may exist where a government official violates the constitution, but the right was not clearly established at the time the right the violated.
Determining whether sovereign immunity and/or qualified immunity exists in a particular case can be a complex question. If you are a government employee and you believe your rights have been violated, you should contact an experienced Austin employment attorney to discuss your case.Deadlines for Asserting Claims Against the Government are Short and Strict. Consult an Austin Employment Attorney if you Believe you Have Been Unlawfully Treated.
Deadlines for asserting employment discrimination claims are short. Often, these deadlines are even shorter for government employees. For example, a federal employee has only 45 days to contact an EEO counselor if that employee believes they have been discriminated or retaliated against because of a protected characteristic. Federal employees with MSPB appeal rights must file appeals within 30 days of the effective date of the adverse action. A state employee in Texas asserting a whistleblower action must initiate an internal grievance and, in some situations, file a lawsuit within 90 days of the retaliatory action.
The attorneys at Wiley Walsh, P.C. can help determine the appropriate action to take and when that action must be implemented. Wiley Walsh, P.C. represents government workers who are seeking an employment attorney in cities such as Austin, Georgetown, Round Rock, Cedar Park, Pflugerville, Leander, Del Valle, Kyle, San Marcos, San Antonio, New Braunfels, and Fredericksburg. Contact us at (512) 271-5527 or via our online form for an appointment.
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