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(This article first appeared in the September/October 2007 issue of The American Postal Worker magazine.)

Know Your Rights: The ‘No FEAR’ Act

Greg Bell, Director
Industrial Relations

We often receive inquires regarding whether postal workers have any type of “whistleblower protection.” Yes, we do. Although postal workers – unlike most federal employees – are not covered by the Federal Whistleblower Protection Act of 1989, we are protected by certain USPS regulations.

In addition, postal workers are covered under an important law, the “Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002” (the “No FEAR Act”), which requires each federal agency, including the Postal Service, to provide notice to all employees, former employees, and applicants for employment about the rights and remedies available to them under the anti-discrimination and whistleblower laws and regulations.

Congress enacted the No FEAR Act with the intent of holding management accountable. Acknowledging that “federal agencies cannot be run effectively if those agencies practice or tolerate discrimination,” the act places several significant impositions on the Postal Service and other federal agencies with regard to discrimination and retaliation against employees. In addition, Congress felt that “notifying federal employees of their rights under discrimination and whistleblower laws should increase Federal agency compliance with the law.” ( P.L. 107- 174, Section 101 )

To ensure compliance with laws and regulations that protect employees against discrimination and retaliation for whistle-blowing, the No FEAR Act requires agencies to provide annual reports to Congress, the U.S. Attorney General, and the U.S. Equal Employment Opportunity Commission (EEOC) that detail cases brought against them.

Federal law prohibits the Postal Service from discriminating against employees or applicants with respect to the terms, conditions, or privileges of employment on the basis of race, color, religion, sex, national origin, age, or disability. In addition, both Article 2 of the National Agreement and postal regulations prohibit discrimination on the basis of marital status or political affiliation, and postal regulations prohibit discrimination based on parental status or sexual orientation.

Here is the relevant passage from the USPS Employee and Labor Relations Manual (ELM), Section 665.23: “Employees acting in an official capacity must not directly or indirectly authorize, permit, or participate in any action, event, or course of conduct that subjects any person to discrimination, or results in any person being discriminated against on the basis of race, color, religion, sex, national origin, age (40+), physical or mental disability, marital or parental status, sexual orientation, or any other non-merit factor, or that subjects any person to reprisal due to prior involvement in EEO activity.”

EEO Complaints

If you believe that you have been the victim of unlawful discrimination for any of the reasons listed above, you must bring your individual and/or class-action complaint to the attention of the USPS Equal Employment Opportunity (EEO) Office by requesting counseling within 45 calendar days of the date of the alleged discriminatory act; within 45 calendar days of the date you knew or reasonably should have known about the discrimination; or if a personnel action is involved, within 45 calendar days of its effective date.

EEO complaints are processed by the EEO Contact Center . Therefore, to begin the process of filing a formal complaint, you should call a contact center at one of these central phone numbers: 888-EEO-USPS (888-336-8777) or TTY: 800-877- 8339. In the event of a written request for EEO counseling, such request will be processed by the EEO Contact Center , not the local counselor. Either way, the system is designed for the initial contact to come through the contact center.

Please also note that, when alleging “unlawful age discrimination,” an individual may file a civil action against the Postal Service in federal court, rather than use the administrative procedures. A court filing requires that the individual complaining of the age discrimination give the EEOC no less than 30 days notice of the intent to file suit. The notice itself must be filed with the EEOC at PO Box 19848 , Washington , DC 20036 , within 180 days of the occurrence of the alleged unlawful practice.

The EEO counselor has 30 days to investigate the facts of the case and attempt an informal settlement. The counselor may ask for more time, but the complainant is not required to agree to allow additional time.

You may also request Alternative Dispute Resolution (ADR), which may last up to 90 days.

Once the counseling is complete, or if an ADR has been unsuccessful, you should receive a notice of your right to file a formal complaint of discrimination.

If you believe that you are the victim of discrimination based on your marital or parental status, political affiliation, or sexual orientation, you may pursue a discrimination complaint by filing a grievance under Article 15 of the National Agreement. Probationary employees who may not have access to the grievance procedure regarding a separation can file a written complaint with the Vice President, Labor Relations, U.S. Postal Service, 475 L’Enfant Plaza SW, Washington , DC 20260-4100 . Be sure to include as much specific information on the alleged violation as possible.

(For more information on the EEO process for federal employees, including Postal Service employees, visit www.eeoc.gov/federal/index.html .)

Whistleblower Protection

Postal regulations located in the ELM (Section 666.18) provide that, “No one may take or fail to take a personnel action, or threaten to do so, with respect to any employee or applicant for employment because the employee or applicant discloses information that he or she believes evidences: a. A violation of any law, rule, or regulation, or b. A gross waster of funds, gross mismanagement, an abuse of authority, or a substantial and specific danger to public health or safety.”

The only exceptions to the rule occur when: 1) disclosure of such information is specifically prohibited by law; or 2) such information is specifically required by Executive Order to be kept secret in the interest of national defense or of the conduct of foreign affairs.

If you believe that you have been the victim of whistleblower retaliation, you should notify the USPS Office of Inspector General (OIG). Address written complaints to: Postal Service Office of Inspector General Hotline, 1735 N. Lynn St. , Arlington , VA 22209-2005 . To complain by telephone, call the OIG Hotline at 888-USPS-OIG (888-877-7644).

You may also e-mail written complaints to hotline@uspsoig.gov. Deaf and hard-of-hearing employees can call the TTY telephone number, 866-OIG-TEXT (866-644-8398).

If the OIG determines that the allegations warrant further review, you may be sent a questionnaire to be returned within 30 calendar days. The OIG will then determine whether it will investigate the allegations or decline further action and, instead, refer the allegations to postal management. (For additional information on the procedures for investigating allegations of retaliation, see ELM 666.3.)

‘No FEAR’ Notice

The Postal Service described the No FEAR Act notice that was published in the Jan. 27, 2007 , Federal Register as an “initial notice.” Therefore, we expect that it will post the notice in other ways (e.g., on the Internet) as other agencies have done.

The Postal Service also has established a No FEAR Act Web page ( www.usps.com/nofearact ), where it likely will post the notice in the future as well.

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