When a federal employee is reinstated after an improper adverse personnel action, their employing agency is required by Title 5 of the U.S. Code to reimburse them for the time they missed from work. However, despite the law’s requirement, the U.S. Department of Housing and Urban Development (HUD) has revealed they will not provide rehired probationary workers with FEHB benefits or back pay.
One agency seems to be breaking federal law governing employee reinstatements as federal agencies rush to reinstate newly hired, transferred, or promoted employees in the wake of two court rulings that ruled the mass termination of probationary employees across the government in recent weeks to be illegal.
According to an email acquired by “Government Executive“, HUD notified its more than 300 probationary employees who had been “sacked” on Tuesday that they would be reinstated, retroactive to March 17, but placed on administrative leave “until further notice.”
“Please accept our sincerest apologies for the delayed response,” the department wrote. “Our office has been working tirelessly to ensure we provide accurate responses to your questions. We are currently preparing correspondence that will provide you with important updates regarding your health benefits and any other entitlements resulting from reinstatement of your employment.”
HUD stated that it will not reimburse workers for the month they were unemployed, in contrast to the great majority of other agencies that were forced to do so by recent temporary restraining orders that prevented the Trump administration’s probationary purge. On the other hand, probationers have received confirmation from the Small Business Administration, Energy, Transportation, and Agriculture departments that they will receive their back pay.
This may come as a surprise to some, as any federal employee who is found to have been the victim of an unlawful adverse personnel action, such as termination, is entitled to back pay under federal law.
“When an appropriate authority has determined that an employee was affected by an unjustified or unwarranted personnel action, the employee shall be entitled to back pay under section 5596 of title 5, United States Code, and this subpart only if the appropriate authority finds that the unjustified or unwarranted personnel action resulted in the withdrawal, reduction, or denial of all or part of the pay, allowances, and differentials otherwise due the employee,” state regulations implementing Title 5 of the U.S. Code.
Further, restoration of workers’ health insurance through the Federal Employees Health Benefits Program is not mentioned in HUD’s email to probationary employees. Rather, it advises them to consider filing for Temporary Continuation of Coverage, a FEHB bridge plan available to former federal employees following their leave from the government. In contrast to FEHBP, TCC plans demand that the enrollee pay both their portion of the insurance premiums and the government’s contribution.
“If our termination was unlawful and invalid, there should be back pay,” said one probationary worker. “Otherwise, this is so unfair, as we hear some other agencies offer back pay to their reinstated employees.”
The announcement comes as two judges are debating further penalties and agencies are still rushing to reinstate employees. At a hearing Tuesday, a Maryland judge who earlier this month issued a temporary restraining order against agencies reportedly stated that he was reluctant to issue a nationwide injunction stopping the probationary firings. However, his attempt to restrict any ruling to the states whose attorneys general filed the lawsuit may be hampered by the fact that some federal employees commute across state lines.
“We are continuing to review the impact of your benefits entitlements,” HUD wrote. “To ensure you do not experience a break in health benefits coverage, you may elect to enroll in Temporary Continuation of Coverage. You must submit your election form within 60 days after receiving your separation notice or 60 days after separation, whichever is later.”
Plaintiffs in the case overseen by U.S. District Judge William Alsup, meanwhile, filed a motion on Tuesday threatening to hold the government in contempt of court if agencies fail to comply with the judge’s preliminary injunction by March 31. This injunction includes restoring employees to their on-duty positions, not just administrative leave status.
A request for comment from HUD was not answered.
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