GAO employees are protected against prohibited personnel practices, which are activities that violate the merit system. The prohibited personnel practices are outlined in 5 U.S.C. § 2302(b) and include such types of actions as employment discrimination, improper hiring practices, retaliation, and failing to adhere to law, rules, or regulations that implement or directly concern the merit system principles.
The Personnel Appeals Board Office of General Counsel (PAB/OGC) investigates allegations of prohibited personnel practices. You can contact the PAB/OGC using the “Contact Us” tab on the Personnel Appeals Board’s (PAB) website if you have questions about the prohibited personnel practices. You can also file a Charge with the PAB/OGC by clicking on the “How to File” tab on the PAB’s website if you believe you have been subjected to a prohibited personnel practice.
Charges related to prohibited personnel practices should be filed with the PAB/OGC within 30 days of the date the individual knew or should have known that a prohibited personnel practice was committed. If the allegation involves an adverse or performance-based action, a Charge must be filed within 30 days of the effective date of the personnel action.
Types of Prohibited Personnel Practices
Section 2302(b) makes it unlawful for an employee with authority to take, direct others to take, recommend, or approve a personnel action if to do so would constitute any of the 14 prohibited personnel practices described below.
5 U.S.C. § 2302(b)(1)- Discrimination
This prohibited personnel practice prohibits discrimination based on race, color, religion, sex (including sexual orientation and gender identity), national origin, age, disability, marital status, or political affiliation.
In most situations involving claims of race, color, religion, sex, national origin, age, or disability discrimination, an individual must first file a complaint of discrimination with GAO’s Office of Opportunity and Inclusiveness (O&I) before filing a Charge with the PAB/OGC. However, an employee subjected to a removal, suspension for more than 14 days, reduction in grade or pay, or furlough of not more than 30 days who believes the action is due to discrimination may either file a Charge directly with the PAB/OGC or file a complaint of discrimination with O&I.
Note that claims of discrimination regarding marital status and political affiliation are filed directly with the PAB/OGC and cannot be filed with O&I.
Example: An employee tells a manager about the employee’s recent marriage and a few short months afterwards, the manager denies the employee’s request for a reassignment to a different position because the manager assumes that a married employee will not be able to work the hours of the position.
5 U.S.C. § 2302(b)(2)- Considering Inappropriate Recommendations
This prohibited personnel practice prohibits soliciting or considering recommendations for any individual who is under consideration for a personnel action unless the recommendation is based on the personal knowledge or records of the person providing the recommendation and the recommendation pertains to work performance, qualifications, character, loyalty, or suitability of the individual.
Example: A member of Congress submits a recommendation on behalf of a constituent to a manager who is hiring for a position and the manager considers the recommendation even though the member of Congress does not have any direct knowledge of the constituent’s work performance, qualifications, or character.
5 U.S.C. § 2302(b)(3)- Coercing Political Activity
This prohibited personnel practice prohibits coercing the political activity of any person, including providing a political contribution or service, or retaliating against any person for refusing to engage in political activity.
Example: A manager requests that a subordinate employee provide a political contribution to a candidate running for governor and the employee refuses to contribute to the campaign. The manager then lowers the employee’s performance rating because of the employee’s refusal.
5 U.S.C. § 2302(b)(4)- Obstructing the Right to Compete for Employment
This prohibited personnel practice prohibits deceiving or willfully obstructing someone with respect to the person’s right to compete for employment.
Example: In order to discourage two employees who had the experience from applying for a position, a supervisor falsely tells them that they do not qualify for the position because the vacancy announcement requires 5 years of experience when the supervisor knows that the vacancy announcement requires only 2 years of experience.
5 U.S.C. § 2302(b)(5)- Influencing Withdrawal from Competition
This prohibited personnel practice prohibits influencing any person to withdraw from competition for a position in order to improve or injure the employment prospects of any other person.
Example: A supervisor asks an employee to withdraw the employee’s application for a promotion, so that the supervisor could select a friend who had also applied for the position.
5 U.S.C. § 2302(b)(6)- Granting an Unauthorized Preference or Advantage
This prohibited personnel practice prohibits granting a preference or advantage that is not authorized by law, rule, or regulation to any employee or applicant for employment to improve or injure the employment prospects of any person.
Example: A manager wants to hire a specific candidate for a position and to ensure that the candidate can be selected, the manager adds job duties and qualifications to the vacancy announcement that are tailored based on the candidate’s resume and are not necessary for the position.
5 U.S.C. § 2302(b)(7)- Nepotism
This prohibited personnel practice prohibits appointing, employing, promoting, advancing, or advocating for the appointment, employment, promotion, or advancement of a relative. A “relative” is a husband, wife, father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister. Please note that it is not a violation of this prohibited personnel practice to have two relatives work for the same agency as long as one relative is not involved in any personnel action affecting the other relative.
Example: A supervisor serves as the designated performance manager for her daughter and provides ratings for her daughter’s performance appraisal.
5 U.S.C. § 2302(b)(8)- Retaliation for Whistleblowing
This prohibited personnel practice prohibits taking, failing to take, or threatening to take or fail to take a personnel action in retaliation for making a protected disclosure. A protected disclosure is information that an employee or applicant reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Example: An employee notifies a Managing Director that the employee’s direct supervisor violated GAO’s rules on using COVID leave. A few weeks after the supervisor learns of the employee’s disclosure to the Managing Director, the supervisor revokes the employee’s telework agreement.
5 U.S.C. § 2302(b)(9)- Retaliation for Engaging in Protected Activity
This prohibited personnel practice prohibits taking, failing to take, or threatening to take or fail to take a personnel action in retaliation for:
(1) exercising a complaint, grievance, or appeal right; (2) testifying for or assisting someone with a complaint, grievance, or appeal; (3) cooperating with or disclosing information to an Inspector General or any other component responsible for internal investigation or review, such as the PAB/OGC; or (4) refusing to obey an order that would require the individual to violate a law, rule, or regulation.
Example: An employee, who was not selected for a promotion, filed a Charge with the PAB/OGC alleging that the employee’s supervisor did not follow GAO’s rules in making the promotion decision. Six months later, the supervisor denied the employee’s request for a detail because the employee filed a Charge against the supervisor.
5 U.S.C. § 2302(b)(10)- Discrimination Based on Conduct Not Adversely Affecting Performance
This prohibited personnel practice prohibits discrimination on the basis of conduct that does not adversely affect job performance.
Example: A supervisor learns that a subordinate employee participates in ghost hunting when the employee is off-duty. As a result of this discovery, the supervisor treats the employee in a manner disparate from the other members of the employee’s team. This includes not giving the employee an award that all other members of the team received and denying the employee’s request for leave in circumstances where similarly situated team members had their leave requests granted.
5 U.S.C. § 2302(b)(11)- Violating a Veterans’ Preference Right
This prohibited personnel practice prohibits knowingly taking, recommending, or approving, or knowingly failing to take, recommend, or approve a personnel action if doing so would violate a veterans’ preference requirement.
Example: As part of the hiring process, an agency takes certain veterans’ preference requirements into account. Agency officials may violate section 2302(b)(11) if they fail to observe a veterans’ preference requirement in accordance with the agency’s policies and rules.
5 U.S.C. § 2302(b)(12)- Violating Rules that Implement or Directly Concern a Merit System Principle
This prohibited personnel practice prohibits taking or failing to take a personnel action if doing so would violate a law, rule, or regulation implementing or directly concerning the merit system principles.
Example: An employee receives a retention incentive although the employee does not meet the eligibility criteria for the retention incentive that is outlined in the agency’s regulations. Instead, the employee received the incentive because a manager favors the employee.
5 U.S.C. § 2302(b)(13)- Implementing or Enforcing Non-Disclosure Agreements
This prohibited personnel practice prohibits implementing or enforcing a non-disclosure policy, form or agreement if it does not contain a specific statement notifying employees of their rights, obligations, or liabilities relating to classified information, communications to Congress, whistleblowing to an Inspector General, or any other whistleblower protection.
Example: An agency recently mandated that an employee sign a non-disclosure agreement to resolve a dispute between the agency and the employee, but the agreement did not contain the language that section 2302(b)(13) requires.
5 U.S.C. § 2302(b)(14)- Accessing Medical Records
This prohibited personnel practice prohibits accessing the medical record of an employee or applicant for employment in furtherance of any of the 13 other prohibited personnel practices. Example: An employee reports a supervisor for not following regulations pertaining to time and attendance. The supervisor finds out about the employee’s report and accesses the employee’s medical records to gain information to support disciplinary action charges that the supervisor intends bring against the employee in retaliation for the employee’s whistleblowing.