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Federal Agency Responsibilities Regarding Prohibited Personnel Practices

​What legal responsibilities does a federal agency have to prevent prohibited person​​nel practices?

​Th​​e law requires federal agency heads and officials with authority for any aspect of personnel management to:

  • prevent prohibited personnel practices, including reprisal for whistleblowing;

  • comply with and enforce civil service laws, rules and regulations; and

  • ensure (in consultation with OSC) that federal employees are informed of their rights and remedies.

In addition, Inspectors General at federal agencies play a key role in educating employees about whistleblower rights and protections.

OSC has developed training that federal agencies can use to fulfill their duty to inform employees of their rights and remedies under Title 5. On request, OSC may also make speakers available to assist in conducting such training.​

​​What is an agency’s responsibility during an OSC investigation?

Federal agencies are required to make employees available to testify, on official time, and to preserve and provide pertinent records and information to OSC. Agencies cannot use a claim of common law privilege, such as attorney-client privilege, to withhold records or information from OSC. By providing records and information to OSC, agencies will not be deemed to have waived the common law privilege against a non-federal entity or against an individual in any other proceeding. See 5 U.S.C. § 1212(b)(5); 5 C.F.R. § 5.4. 

Additionally, federal agencies are prohibited from retaliating against employees who file OSC complaints or cooperate with OSC investigations.

Can a federal agency have its own representative in an OSC interview​?

No. OSC does not permit federal agencies to have representatives for their own interests present during interviews, except in rare circumstances. Similarly, federal agencies cannot require employees to choose agency attorneys as their personal legal representatives. This policy does not prevent an employee from choosing an agency attorney to serve as his or her legal representative, nor does it require agency counsel to act as the employee’s legal representative.

What information can OSC provide to a federal agency abo​ut open complaints?

Generally, OSC cannot discuss any aspect of open cases with federal agencies or other entities because statutes protect the privacy and confidentiality of the complaint process. This means OSC cannot confirm or discuss a complaint filing, allegations, OSC findings, complaint disposition, or reason(s) for closure, or a complainant’s identity. Requests for other information may be directed to our FOIA officer.

The exception to this rule is when OSC has dealt directly with a federal agency in order to request information, initiate settlement discussions, etc. In such cases, if a federal agency requests additional information about the complaint, OSC can confirm only that the matter is still pending or has been closed. Other inquiries can be directed to our FOIA officer.

What should an agency liaison know when working w​ith OSC? 

Federal agencies usually designate an agency liaison to facilitate their agency's cooperation with OSC investigations by ensuring the agency timely responds to OSC's requests for information and by making sure agency employees are available to provide testimony.  OSC has developed an information sheet​​ that liaisons can use in OSC investigations. ​​​