- Discriminating against an employee or applicant on the basis of race, color, religion, sex, national origin, age, handicapping condition, marital status or political affiliation (5 U.S.C. § 2302 (b)(1)(A),(B),(D), and (E));
- Deceiving or willfully obstructing any person with respect to such person’s right to compete for employment (5 U.S.C. § 2302(b)(4));
- Influencing any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment (5 U.S.C. § 2302(b)(5));
- Granting any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment (5 U.S.C. § 2302(b)(6)).
- Beatrez v. Merit Systems Protection Board, 413 Fed. Appx. 298 (Fed. Cir. Ct. App. 2011): When the agency manager was informed by the human resources specialist that the particular person desired to fill a position was not qualified at the higher advertised grade, the position was readvertised at a lower grade, and the desired candidate was hired. This action violated 5 U.S.C. § 2302(b)(6) Id. at 300. While “‘it would have been a legitimate and appropriate act to re-announce the position if it was for the purpose of ensuring that management was able to consider the widest field of eligible candidates with the greatest potential to have the skills and knowledge relevant to the position being advertised,’” id. at 301 (quoting the administrative judge), targeting position announcements for particular candidates violates the first merit system principle and is a prohibited personnel practice.
- Special Counsel v. Brown, 61 M.S.P.R. 559 (1994): The MSPB found that Jennifer Nelson unlawfully reclassified a personnel officer position from the 201 series to a resource manager position in the 301 series, so that James Brown would qualify for the position. Nelson wanted Brown in this position because she had been his supervisor, and was familiar with Brown’s performance. Nevertheless, the Board found that Nelson violated 5 U.S.C. § 2302(b)(6). Id. at 570-71. Once in his position, Brown also engaged in a prohibited personnel practice when he asked a candidate to waive his displaced employee priority, so that another desired candidate would be selected. Id. at *565. By acting to provide an advantage to one employee, Brown injured the prospects of another, in violation of 5 U.S.C. § 2302(b)(5).
- Special Counsel v. Byrd, 59 M.S.P.R. 561 (1993): The Board found “that the facts in this case present one of the clearest possible examples of abuse of the merit system.” The agency manager William Byrd was so impressed with the White House connections of a candidate, that he and the Branch Chief, Joel Rubenstein, went out of their way to make sure she was hired. Although twelve qualified candidates had applied under a merit staffing announcement for the position, none were ranked or considered, because Ward-Ravenel had already been “selected.” She could not qualify, though, under this announcement, so Rubenstein suggested that they use the TLA (Temporary Limited Appointment) authority. Rubenstein then prepared the public notice announcement for the TLA position. Byrd, 59 M.S.P.R. at 565-66. Rubenstein directed Clark Woodson, a personnel staffing specialist, to handle the distribution and staffing. Woodson received six applications in response to the TLA public notice, and determined that three were qualified. Even though he was required to do so, Woodson failed to distribute the public notice to OPM to enhance competition, and he failed to consider the application of a 30-percent disabled veteran, claiming his application was received after the deadline, though the application was date-stamped prior to the closing date of the announcement. Woodson then forwarded the names of the three qualifying candidates to Byrd. Without interviewing any of these candidates, one of whom had a Masters Degree and was arguably more qualified than Ward-Ravenel, id. at 571, Byrd selected Ward-Ravenel for the position. Id. at 567. The MSPB found that both Byrd and Rubenstein violated 5 U.S.C. § 2302(b)(6).
In its 2011 study, the MSPB asked HR specialists “how often they had been asked to re-advertise a vacancy because the selecting official wanted to hire someone who was not on the referral list…40 percent reported that this happened always, most of the time, or some of the time.” (Report at 34). Can HR specialists be held liable for going along with the improper and unlawful hiring requests of agency managers? Yes. There is “case law that holds HR specialists can be held accountable for ‘aiding and abetting’ managers trying to manipulate the system.” Id. “When a customer [such as an agency manager] requests assistance with an HR action that appears to constitute a [prohibited personnel practice], the HR specialist is prohibited from intentionally assisting that customer to achieve the improper goal. Instead, the specialist is expected to exercise his or her ‘independent judgment and challenge local management’s fairly obvious efforts to grant a ‘preference’ not authorized by law.” Id. What about retaliation? The MSPB asked HR specialists whether their supervisors would support them if they refused to help a customer commit a prohibited personnel practice. An astonishing 26 percent responded their supervisors would not support them. (Report at 34).