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We'll assume you're ok with this, but you can opt-out if you wish. Was the keyed response the right one for the question being asked? In the case of multiple choice exams, you may file an appeal concerning a keyed response to a test item or regarding whether the test is appropriate or related to the job being tested for to the Civil Service Commission either within five days of reviewing the test booklet, or within five days of the test date if you do not schedule a review of the test booklet.

Also with respect to multiple choice exams, you may file a scoring appeal to the Commission within 20 days after receiving your test results. Regarding tests other than multiple choice, you may file a scoring appeal or an appeal of the appropriateness or job-relatedness of test content, to the Civil Service Commission within 20 days after reviewing your test paper, or within 20 days of receiving notice of your examination results if you do not schedule a review of your test paper.

The Civil Service Commission will review the appeal on the written record or via such other proceeding as it may deem appropriate. This is an appeal which may be filed if the name of an individual on an eligible list is removed from the list for non-medical or non-psychological reasons.

Another reason an eligible may be removed is if the employer believes that the eligible is a non-resident in a town or county that requires residency as a condition of employment. You may file this kind of appeal with the Civil Service Commission within 20 days of receiving a notice from Commission staff confirming your removal from an eligible list.

This is an appeal by an eligible concerning a disqualification from prospective employment for medical or psychological reasons. Anyone who receives notice that he or she is disqualified from employment for a career service position based on medical or psychological reasons may appeal this determination.

You may file this kind of appeal with the Civil Service Commission within 20 days of the date of the notice of your disqualification from employment based on medical or psychological reasons. Also, you may submit a report to the Commission from a New Jersey licensed physician, psychologist or psychiatrist as applicable of your own choosing within 90 days from the date you filed your appeal.

Within 20 days of receipt of your appeal, the prospective employer is required to submit to the Commission and to you or your attorney all relevant background information, including investigations and medical reports. The Commission may extend the time period for filing required reports for good cause. Either panel may request additional reports, examinations, or other materials and may ask you questions if you appear before the panel.

Prior to making a final decision, the Commission may refer you for an independent professional evaluation. A working test period is part of the examination process in which the work performance of a new employee just appointed from an eligible list is evaluated.

If the employee passes the working test period , he or she becomes permanent. The employee may file a working test period appeal if he or she does not pass the working test period. An employee who is terminated from employment or returned to his or her permanent title after failing a working test period may file a working test period appeal. You must submit your appeal to the Civil Service Commission within 20 days from the date oSn which you received written notice that you have been terminated or returned to your permanent title at the end of your working test period.

Once the proceedings at the Office of Administrative Law are completed, the Administrative Law Judge writes a recommended decision and the matter is then returned to the Civil Service Commission. The Commission reviews the ALJ recommendation, as well as exceptions and cross-exceptions , of the interested parties, and makes a final decision on your case. You may file a sick leave injury appeal with the Civil Service Commission within 20 days of receiving a determination from the SLI Coordinator denying your SLI request in whole or in part.

Copies of all materials submitted to the Commission must also be provided to the other parties in the appeal. The burden of proof will be on the employee to establish that he or she is entitled to SLI benefits by a preponderance of the evidence.

The Commission will make a determination based on the written record. A retiring State employee who receives a determination from Commission staff that he or she is not eligible for SCOR may appeal this decision. This appeal concerns job performance standards and the final job performance rating of an employee.

A career service employee in State government and those unclassified State employees designated by their employers as subject to the PAR system may file this kind of appeal.

The Civil Service Commission will decide the appeal based on the written record or such other proceeding as it may deem appropriate. Local employees should go to the Division on Civil Rights or the Equal Employment Opportunity Commission rather than the Civil Service Commission, as the Commission does not handle local discrimination matters.

The appeal must include all materials presented by you in the appeal process prior to filing your appeal with the Commission. However, if this appeal raises issues that may be handled through another appeal process i. The Commission may still require that the discrimination appeal process be utilized or that some other combination of procedures be utilized in this instance. The burden of proof is on the appellant in this kind of appeal.

The Civil Service Commission will decide the appeal on a review of the written record or such other proceeding as it deems appropriate. Equal Employment Opportunity Commission [ see 42 U. Any permanent employee or employee serving in a working test period within State or local government employment who disagrees with the determination of rights they have received may file this kind of appeal. The Commission will make a decision on your layoff rights appeal based on a review of the written record.

The burden of proof is on the appellant. This is a challenge to the good faith of a layoff by your employer. In other words, if the employer laid off an employee or demoted the employee in lieu of layoff for reasons other than trying to save the agency money or streamline operations, this would be an argument that the employer did not act in good faith. A permanent employee or an employee serving in his or her working test period who is laid off or received a demotion in lieu of layoff may file this kind of appeal.

In your appeal, indicate what you are appealing, your reasons for appeal, and what you would like the Commission to do in response to your appeal. The Commission reviews the ALJ recommendation, as well as exceptions and cross-exceptions of the interested parties, and makes a final decision on your case. This appeal concerns the process of issuing a salary disapproval against one or more employees who are employed in violation of civil service law or rules or who are acting in violation of civil service law or rules.

If the Civil Service Commission issues a notice of salary disapproval regarding the illegal employment or illegal action of a civil service employee in State or local government, the affected employee or employees will have the opportunity to respond to the notice. Also, if the Commission orders a salary disapproval after hearing from the affected employees and employer, then they may appeal this order in writing to the Civil Service Commission.

If you have received a notice of salary disapproval from the Civil Service Commission regarding your employment, you will have 10 days from receipt of this notice to respond. If the Commission decides to order a salary disapproval regarding your employment, you will have 20 days from the receipt of this order to appeal to the Commission. The Commission will decide this matter on the written record or in such other manner as it deems appropriate.

The Civil Service Commission does not decide who is eligible for veterans preference. Governor Sheila Oliver. Classification and Compensation. Job Announcements. Intergovernmental Services and Forms. Frequently Asked Questions. Appointing Authorities FAQ. Classification and Compensation FAQ. Intergovernmental Services FAQ. Job Seekers FAQ.

Public Safety FAQ. Examples of the type of actions that are prohibited may be gleaned from cases in which the fourth PPP is addressed by the U. In Special Counsel v. Ross , 34 M. The MSPB found that the respondents: 1 tailored a position description for the position so that their preferred candidate could qualify for the position; 2 intentionally failed to mail inquiries to four qualified candidates concerning their availability for the position; and 3 falsely reported to the Office of Personnel Management the status of certain candidates.

Hoban , 24 M. As mentioned in the discussion of the third PPP , under 5 U. A PPP may be raised as an affirmative defense in an appeal of an otherwise appealable action. An otherwise appealable action is a personnel action which is subject to the MSPB's jurisdiction under a law, rule, or regulation.

For example, a removal, suspension of 15 days or more, and a reduction in grade or pay are personnel actions that are directly appealable to MSPB. See Finston v. Health Care Financing Administration , 83 M.

If the violation is not related to an otherwise appealable action, an individual may file a complaint with OSC, which is a separate, independent executive agency. The instructions for filing a complaint with OSC may be found at its website: www. Pursuant to 5 U. Hoban , MSPB adopted the method for selecting penalties in adverse action cases as described in Douglas v. Veterans Administration , 5 M. The MSPB will consider those factors that are relevant in an individual case, such as the nature and seriousness of the offense, the employee's job level; past disciplinary record; length of service; potential for rehabilitation; mitigating factors; and the adequacy of alternative sanctions.

Ross , the selected penalty for the two respondents was a reduction in grade for a period of no less than one year. In Hoban , the penalty imposed was also a reduction in grade. Like the other prohibited personnel practices discussed in this series, it is codified at 5 U. What is the purpose of this provision? It eliminates one way that individuals might otherwise try to subvert the competitive process. The civil service system is based on the idea that employees should be selected through fair and open competition.

When filing vacancies in the competitive service through examination, selecting officials generally must select one of the top three ranked candidates on a certificate. If not for this prohibited personnel practice, they might try to ensure that their preferred candidates were among the top three, and thus eligible to be selected, by pressuring higher-ranked candidates to withdraw their applications.

What must be shown to establish a violation of this provision? There are two elements that both must be present for a person to violate this provision. First, the individual must have influenced or attempted to influence a person to withdraw from competition.

Attempting to influence is enough even if the attempt does not succeed. Second, the person must have done so with the intent to improve or injure someone's employment prospects. Special Counsel v. Brown , 61 M. In what kinds of situations does this practice typically arise? Violations often involve situations where an agency passed over applicants who were entitled to priority—for example, veterans—without following the proper procedures for doing so.

After the agency hired its preferred candidate, it realized that there were other applicants who had priority. In an effort to avoid having to terminate the candidate who was hired, an individual may try to convince the applicants who have priority to withdraw their applications.

This is a prohibited personnel practice. Merit Systems Protection Board , F. How do I pursue a claim that someone violated this provision? The Office of Special Counsel OSC receives and investigates claims of prohibited personnel practices, including this provision. The case will be heard by an administrative law judge, who will make an initial decision that can be appealed to the Board.

An individual employee also could, in theory, raise this provision as an affirmative defense to an adverse action by an agency that is within MSPB's jurisdiction, such as a removal, but it is difficult to imagine in practice how such a defense would arise. Absent an otherwise appealable matter, MSPB does not have jurisdiction to hear a claim by an individual as opposed to OSC that this provision has been violated.

See Gaugh v. Social Security Administration , 87 M. Department of the Army , 2 M. What penalties may the Board impose for violations of this provision? Most reported decisions have involved suspensions, fines, or both. Judson , 43 M. Heyel , 35 M. Waddams , 34 M. Evans-Hamilton , 29 M. Verrot , 18 M. Note that some of these cases also involved other charges beyond influencing an applicant to withdraw.

Has MSPB studied this practice? In its report Prohibited Personnel Practices: Employee Perceptions, the Board reported that perceived violations of this provision have decreased steadily in the last 15 years. In , only 2. Does this provision prohibit someone from honestly advising an applicant that a job might not be the best fit for her?

The provision does not bar a person from counseling an applicant to withdraw for legitimate reasons, because that counseling is not intended to injure the applicant's employment prospects or improve another applicant's prospects. The provision is violated only when the person acts with the purpose of injuring the applicant's prospects or improving another applicant's prospects.

Filiberti , F. Are individuals safe from discipline if they give only true information? Not necessarily. Even giving an applicant true information about the position may violate this provision if it is done with the intent to improve or injure someone's employment prospects.

In Filiberti , for example, agency officials told the applicant that his moving expenses would not be paid, that the position required extensive travel at a moment's notice, that his military retirement pay might be reduced if he accepted the position, that the cost of living in the San Francisco area was high, and that it was uncertain what effect a pending merger between the agency a division of the Navy and the Army might have on the position.

Even though all of this information may have been true, a prohibited personnel practice occurred because the officials gave information to the applicant for the purpose of dissuading him from continuing with his application so that they could hire someone else. Are there regulations on the same topic?

The Office of Personnel Management has promulgated similar but broader regulations that are codified at 5 C.

The regulations apply to any employee or applicant, and cover not only inducing others to withdraw but also dissuading them from applying in the first place. Applicants who violate the regulations will have their applications cancelled and may be subject to other penalties.

What is the purpose of the sixth prohibited personnel practice? This provision supports the first Merit System Principle which asserts that recruitment, selection and advancement should be merit-based.

This PPP is designed to prevent an agency from giving an improper advantage in promoting an employee or in selecting an applicant for a position in federal employment. It complements and supports the same goal of fair competition as do PPPs 4 and 5, which prohibit obstructing the right to compete and influencing a person to withdraw from competition. It should be noted that some employment preferences are authorized by law, so they would not be prohibited.

For example, there is a veterans' preference statute that gives eligible veterans preference in appointment over many other applicants. To establish a violation of 5 U. See Special Counsel v. Byrd, 59 M. The preference must be given for the purpose of providing an improper advantage.

In other words, an improper motive must be shown. Lee, M. However, it is not necessary that the action actually have resulted in an advantage, only that its purpose be to give an advantage. DeFord , 28 M. It is possible to violate section b 6 using legally permissible hiring actions if the intent is to afford preferential treatment to an individual.

See Lee, M. Conversely, hiring actions that have the unintentional effect of favoring one applicant over another would not violate section b 6. See id. The Board also has found, based on the wording of the statute, that it does not prohibit actions improperly advantaging a class of persons, only an individual. See Avery v. Office of Personnel Management , 94 M.

However, MSPB cannot review a violation of section b 6 unless it is related to an otherwise appealable action. See Davis v. Department of Defense, M. Additionally, an individual may file a complaint with the Office of Special Counsel OSC , which is a separate, independent executive agency with the authority to investigate violations of section b 6 and to seek corrective action before the MSPB. What type of penalty is imposed when a section b 6 violation is found?

Veterans Administration, 5 M. The MSPB will consider, first and foremost, the nature and seriousness of the misconduct and its relationship to the employee's position and responsibilities, including whether the offense was intentional or was frequently repeated.

See Lee , M. Has the Board recently issued any significant decisions addressing this PPP? Lee and Diane L. Beatrez, Human Resource HR Specialists for the Coast Guard, violated section b 6 when they assisted in promoting a particular individual to a supervisory position. As a consequence, the Board imposed a day suspension without pay on Lee and a day suspension without pay on Beatrez. The Court of Appeals for the Federal Circuit later held on review that there was insufficient evidence to establish that Beatrez had the requisite intent to aid in the commission of a PPP and reversed the action against her.

See Beatrez v. Merit Systems Protection Board, F. The Board also explained that an important lesson to be learned from the case law is that an official can be held liable for violating section b 6 if the official commits a PPP or intentionally assists someone else to commit a PPP, even when the employee's superiors are aware of what is happening and view the PPP as a solution to a problem.

In a recent MSPB Government-wide survey, over 70 percent of employees believed that some supervisors practice favoritism. What other guidance is out there concerning this PPP? The Office of Personnel Management has issued detailed rules governing hiring that are designed to ensure fair and open competition. These rules cover recruitment and selection for initial appointment as well as promotion in accordance with a merit-based system.

See e. Like the other prohibited personnel practices PPP discussed in this series, it is codified at 5 U. Nepotism is addressed at prohibited personnel practice number 7. Specific restrictions on the employment of relatives are also set forth at 5 U.

The civil service system is based on the idea that employees should be selected through fair and open competition and promoted on the basis of their individual merit.

Since the passage of the Pendleton Act of , to which the Merit Systems Protection Board MSPB traces its own roots, favoritism based on family relationship has been frowned upon; with the Civil Service Reform Act of , it was specifically proscribed. The proscription is not absolute. Rather it tracks the general societal construct that, other than in family-run private businesses, favoritism towards relatives is fraught with potential conflicts that might impede any meritocratic enterprise.

In order to limit even the appearance of improper favoritism towards relatives, this provision assures that public officials cannot use their influence to advance their relatives in hiring or career advancement. It does not prohibit family members from honorable public service, but simply proscribes improper influence by their relatives in derogation of the merit system.

For prohibited nepotism to occur there must be the act of advocacy. For example, in Wallace v. Department of Commerce, M. In other words, the necessary advocacy or act to further the sister's employment was missing from this case. The Board made a similar finding in Alexander v. Department of the Navy, 24 M. It is, perhaps, interesting to note that the proscription against nepotism, for which the relevant relationships are so clearly defined, does not include some modern relationships which, though not spousal, are similarly close, e.

Improper favoritism involving such relationships would be prohibited under some other PPP, e. Nor does PPP number 7 extend to the hiring of friends and acquaintances. Nichols, 36 M. How does the issue of prohibited nepotism arise in MSPB cases? It arises most frequently in one of two ways: as a charge upon which an employee has been disciplined for violating the prohibition or an agency's internal disciplinary prohibition that is similar to the PPP , or as an affirmative defense that an action taken was taken in reprisal for the appellant having blown the whistle on someone for a nepotism violation.

An example of the latter is Hudson v. The case will be heard by an administrative law judge who will make an initial decision that can be appealed to the Board. An individual employee also could raise this provision as an affirmative defense to an adverse action by an agency that is within MSPB's jurisdiction, such as a removal.

Absent an otherwise appealable matter, MSPB does not have jurisdiction to hear a claim by an individual as opposed to OSC that prohibited personnel practices have been committed. Social Security Administration, 87 M. Department of the Army, 2 M. What penalties may MSPB impose for violations of this provision? For over 30 years MSPB has surveyed Federal employees to determine their perceptions of the incidence of prohibited personnel practices in the Federal civilian service.

Results of survey items pertaining to nepotism were most recently summarized in the report, Prohibited Personnel Practices: Employee Perceptions. According to this report, perceived violations of this provision have decreased steadily in the last 15 years. In , only 1. This may explain the paucity of cases substantively addressing nepotism issues. All MSPB study reports can be found at www.

It is codified at 5 U. What is the eighth prohibited personnel practice? Under the law, any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority — take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of — any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences— a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.

In addition, even disclosures that are prohibited by law or required to be kept secret are protected if they are made to the Special Counsel or to an agency's Inspector General. What is the purpose of the eighth prohibited personnel practice? Schmittling v. Department of Army , 92 M. Serrao v. Merit Systems Protection Board , 95 F.

Department of Navy , 87 M. For example, allegations of reprisal based upon Equal Employment Opportunity EEO or grievance disclosures are not considered whistleblowing within the meaning of the Whistleblower Protection Act and, therefore, are outside the Merit Systems Protection Board's MSPB or the Board individual right of action appeal jurisdiction.

Mason v. Department of Homeland Security , M. There are two avenues by which an individual may pursue an alleged violation of section b 8 with MSPB. Specifically, an appellant may raise a whistleblower claim in the context of an otherwise appealable action or in an Individual Right of Action appeal pursuant to the Whistleblower Protection Act. An affirmative defense is an assertion by the employee that, if proven, constitutes a defense to the charged action even when the charged action is proven.

Thus, if an agency removes, suspends or demotes a tenured employee as defined by 5 U. In order to establish a prima facie case of retaliation in the context of an otherwise appealable action, the appellant must show by preponderant evidence that he or she made a protected disclosure and that the disclosure was a contributing factor in a personnel action against him or her.

Department of the Air Force , M. Prima facie means that a party produces evidence that — unless rebutted — is sufficient to prove a particular proposition or fact. Preponderant evidence means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.

The term protected disclosure means a disclosure of information an employee reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. Significantly, however, vague or conclusory allegations of wrongdoing are generally not protected disclosures.

Davis v. Contributing factor means any disclosure that affects an agency's decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure. A personnel action means: 1 an appointment; 2 a promotion; 3 an adverse action as defined by section or other disciplinary or corrective action; 4 a detail, transfer, or reassignment; 5 a reinstatement; 6 a restoration; 7 a reemployment; 8 a performance evaluation; 9 a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action; 10 an order for psychiatric testing or examination; and 11 any other significant change in duties, responsibilities, or working conditions.

See also www. If I establish a prima facie case of retaliation under section b 8 in an otherwise appealable action, will I prevail? No, not necessarily. Once the appellant establishes a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure.

Department of Agriculture , F. Department of the Army , M. Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established; it is a higher standard than preponderant evidence. If the agency fails to demonstrate that it would have taken this action in the absence of the disclosure, then the employee prevails.

The Board has jurisdiction over an IRA appeal when an employee , former employee , or applicant for Federal employment demonstrates that he or she has exhausted administrative remedies before the Office of Special Counsel OSC and makes nonfrivolous allegations that: 1 he or she engaged in whistleblowing activity by making a protected disclosure under 5 U.

Yunus v. Department of Veterans Affairs , F. How do I exhaust my administrative remedies before OSC? To meet the exhaustion requirement, the appellant must prove by preponderant evidence that he or she filed a complaint with OSC and provided OSC with a sufficient basis to pursue an investigation which might have led to corrective action. Briley v. Merit Systems Protection Board , 7 F. The Board will only consider the actual claims the appellant made to OSC in the complaint and not the individual's later characterization of those statements before the Board.

Covarrubias v. Social Security Administration , M. Are there any time limits for filing a section b 8 claim with MSPB? When the appellant raises a whistleblower retaliation claim affirmative defense in the context of an otherwise appealable action , he or she must file an MSPB appeal no later than 30 days after the effective date of the agency's action, or 30 days after the date of the appellant's receipt of the agency's decision from the action, whichever is later.

In contrast, when the appellant raises a whistleblower claim in the context of an IRA appeal , the appeal must be filed within 65 days after the date OSC notifies the appellant in writing that it is terminating its investigation into the appellant's allegations or, if no action is taken by OSC within days of the date the individual filed their complaint with OSC, at any time after days have passed. Once an employee, former employee or applicant for Federal employment demonstrates that the Board has jurisdiction over his or her IRA appeal, the appellant will prevail if: 1 he or she proves by preponderant evidence that he or she made a protected disclosure that was a contributing factor in a personnel action at issue; and 2 the agency fails to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure.

An appellant is not required to prove the merits of their protected disclosure. Rather, the appellant must establish only that he or she had a reasonable belief that he or she was disclosing gross mismanagement, a gross waste of funds, an abuse of authority, a violation of law, rule, or regulation, or a substantial and specific danger to public health or safety.

See Downing v. Department of Labor , 98 M. If I prevail on a claim that an agency violated section b 8 , what type of corrective action may MSPB order? If an appellant prevails on a b 8 whistleblower claim, MSPB may, depending on the circumstances, order: 1 that the agency place the individual in the position the individual would have been in had the prohibited personnel practice not occurred; 2 back pay and related benefits; 3 medical costs incurred; 4 travel expenses; 5 any other reasonable and foreseeable consequential damages; and 6 attorney fees and costs.

There are too many to discuss in this brief article, but here are two examples. Wadhwa v. Department of Veterans Affairs , M. Department of the Air Force , F. In effect, a policy disagreement can serve as the basis for a protected disclosure only if the legitimacy of a particular policy is not debatable among reasonable people. Nevertheless, the U. Court of Appeals for the Federal Circuit has refined and clarified this legal principle to the effect that the WPA's protection now covers disclosures about policy, even where reasonable people might disagree on the merits of that policy, when the policy concerns a substantial and specific danger to public health or safety.

Chambers v. Department of the Interior , F. This report discusses results from MSPB's Merit Principles Survey regarding perceptions related to whistleblowing and provides a comparison to the results of a similar survey MSPB conducted in Data from these surveys indicate that since , the percentage of employees who perceive any wrongdoing has decreased. However, perceptions of retaliation against those who blow the whistle remain a serious concern. In both and , approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both.

Our survey data indicate that the most important factor for employees when deciding whether to report wrongdoing is not about the personal consequences employees may experience.

Saving lives was more important to survey respondents than whether they would experience punishment or a reward.