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MSPB on “Follow the Rules Act”

Has the “obey now, grieve later” mentality of federal workplace culture been weakened? The Merit Systems Protection Board (MSPB) says yes, especially with the creation of the bipartisan Follow the Rules Act.

Prior to this piece of legislation, federal employees were only protected from adverse actions taken for refusing to violate federal law. However, no protections existed for an employee who refuses to violate federal regulations at the behest of their management. Despite seeming like an issue of semantics, there existed a gaping loophole that permitted the termination of Federal employees who refused to violate federal regulations.

The de facto result was for federal employees to follow the orders given by a supervisor and to contest those orders only after committing the violation; hence the maxim “obey now, grieve later.”

This Act was conceived following the ruling of Rainey v. Merit Systems Protection Board in 2016, in which Timothy Rainey was terminated from his job as a contracting officer representative in the State Department. Rainey was relieved of his duties after refusing to follow his supervisor’s direction of rehiring a terminated subcontractor, which would violate the Federal Acquisition Regulation. The case eventually made it to the discretion of the Supreme Court after Rainey filed an Individual Right of Action appeal with the MSPB, but the Supreme Court upheld that the Whistleblower Protection Act only refers to laws and not to regulations. The Follow the Rules Act rights that wrong by now allowing for the protection of employees in both situations.

If you have been wrongfully terminated for refusing to follow an order that violates a law or a regulation, set up a consultation with a federal employment attorney. They will be able to identify the course of action you should take regarding the matter.