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With the Homeland Security Act now signed into law, employment attorneys are poring over the 475-page piece of legislation to figure out the rights of the workers assigned to the new agency. One area that’s already causing a great deal of concern among some lawyers is the appeals process for workers who believe they’ve been unfairly fired or suspended from their jobs. According to attorneys who represent federal employees, the new Department of Homeland Security strips workers of basic due-process rights by denying them access to the administrative review system available to most federal employees. “They’ve taken their rights away. It’s as if you were suddenly classified as a prisoner of war, when you’re a valued employee of the federal government,” says Mary Dryovage, a San Francisco attorney who represents federal employees. While collective bargaining and union representation issues were widely debated during the Homeland Security bill’s passage through Congress, other aspects of the law are only now coming into focus. For many attorneys, the potential changes to the appeals process represent a major setback for the rights of government workers. “Union rights are important, but on the other hand I think your right to job security is even more important,” says Edward Passman, who represents federal employees at Washington, D.C.’s Passman & Kaplan. “If you were terminated and you’re not in a position of filing [a discrimination] complaint, you’re going to be in deep trouble. You might not be able to contest it.” Currently, most of the 1.8 million employees in the government’s executive branch have the right to appeal adverse disciplinary actions to an independent agency called the U.S. Merit Systems Protection Board. The MSPB’s 70 administrative judges and three-member appeal panel hear cases involving job termination, demotion in pay or rank and suspensions of more than 14 days. According to the MSPB’s annual report, the agency reversed 291, or 9 percent, of the 3,160 disciplinary actions that were appealed to it in 2001. When 170,000 federal employees are folded into the Department of Homeland Security next year however, they won’t necessarily have recourse to the MSBP anymore. The act specifically guarantees Homeland Security employees MSPB appeal rights in whistle-blower cases. And it guarantees access to the Equal Employment Opportunity Commission for cases involving discrimination. All other appeals would be handled within the Homeland Security Department, say attorneys familiar with the act, under a new system to be created by Tom Ridge, the secretary of the agency, and the director of the Office of Personnel Management. The act mandates that the new appeal process regulations can be issued only after consultation with the MSPB, but offers few guidelines beyond that. A representative for the Office of Personnel Management said it was too early to comment on the structure of the Homeland Security Department’s appeals procedures. Proponents of the department have repeatedly stressed that to operate effectively, the new agency must have increased flexibility with personnel issues. In a July 26 speech, President Bush explained that the secretary of the Homeland Security agency “must have the freedom to get the right people in the right job at the right time, and to hold them accountable. He needs the ability to move money and resources quickly in response to new threats, without all kinds of bureaucratic rules and obstacles.” But he assured the audience that “the notion of flexibility will in no way undermine the basic rights of federal workers.” While the exact details of the new agency’s appeals system are still unclear, many attorneys who represent federal employees say they don’t expect it to be a favorable forum for workers. “Without an outside fact-finder, the only kind of appeal that would be left to employees who are facing demotion or termination would be an appeal within the agency up the chain of command,” says Robert Atkins, a solo employment attorney in Berkeley. “By restricting it to the in-house review, you’re going to assure in almost every case that the discipline will stand.” According to employment attorneys, the loss of an independent appeals process means that government workers could be exposed to workplace abuses ranging from political patronage to retaliation. And Homeland Security workers who want to appeal an adverse action might have a tough time finding a lawyer. Several attorneys who currently represent federal employees say they’ll be less likely to represent Homeland Security agency employees. “So long as the decision making stops at some kind of an internal fact-finder, I’m not sure that I’ll recommend to clients that it’s worth their while to pay me to represent them,” says Atkins. “Right now the best we can do is try to protect employees that are being fired under the existing law before this goes into effect,” says Dryovage.

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