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Article 3: Employee Rights
Each employee shall have the right to form, join, or assist the Union, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee will be protected in the exercise of such right. Except as otherwise provided under this Agreement, such right includes the right:
A. to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to the Employer or other appropriate authorities; and
B. to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this Agreement.
A. The initiation of a grievance in good faith by an employee will not reflect adversely on their standing with their supervisor or the Employer. An employee who has relevant information and who conveys that information, concerning any matter for which remedial relief is available under this Agreement, will be assured freedom from restraint, interference, coercion, discrimination, intimidation, or reprisal. Nothing in this Section, however, abrogates the right of the Agency to conduct investigations concerning employee misconduct.
B. The Employer will not impose any restraint, interference, coercion, discrimination, or reprisal against any employee in the exercise of their right to designate a Union steward for the purpose of representing to the Employer any matter of concern or dissatisfaction, or of representing the employee before any Government agency or official other than the Employer. If the designation of a particular Union steward in a particular matter raises an actual or apparent conflict of interest, then the Parties will follow all laws, rules, regulations, and case law regarding that steward's participation in the matter (5 U.S.C. § 7120(e)).
Nothing in this Agreement will require an employee to become or remain a member of a labor organization or to pay money to the organization except pursuant to a voluntary written authorization by a member for payment of dues through payroll deductions or by voluntary cash dues payment by a member.
The Employer recognizes and respects the dignity of each employee in the formulation and implementation of personnel policies and practices and conditions of work. The rights and protections established in 5 U.S.C. § 2301(b), Merit Systems Principles, and 5 U.S.C. § 2302(b), Prohibited Personnel Practices, are hereby incorporated into this Article (see Attachment 1).
A. An employee must follow supervisory orders, directions, and assignments.
B. Unless an employee fails to meet their performance standards, they will not be adversely affected by the Employer as a result of carrying out the lawful orders, directions, or assignments of a supervisor, or attempting in good faith to carry out such lawful orders, directions, or assignments.
C. If an employee disputes the legality of their supervisor's order, direction, or assignment based on the employee's belief that it violates a law, rule, regulation, or published Code of Ethics/Professional Responsibility:
1. The employee will discuss the dispute/difference and the basis for it with their supervisor with the intent of resolving the dispute/difference.
2. The employee may seek review of the dispute by their next level supervisor, who will assess the matter and inform the employee of their determination regarding the dispute.
3. If the employee continues to dispute the legality of their supervisor's order, direction, or assignment, the supervisor will give the order, direction, or assignment to the employee in writing. The employee will comply with the supervisor's order, direction, or assignment and, if the employee carries out the order, direction, or assignment in the manner prescribed by the supervisor, the Employer will assume full responsibility for that order, direction, or assignment, to the extent permitted by law, rule, or regulation. At such time as the employee has complied with the supervisor's order, direction, or assignment, they may file a grievance, complaint, or appeal, as appropriate, to seek a remedy to any alleged violation to their rights.
4. In addition, any employee who holds a professional license that they use in the performance of their duties at SEC (i.e., Attorneys, CPAs, Certified Fraud Examiners, etc.) may consult with the body responsible for the enforcement of the Code of Ethics/Professional Responsibility in the State or Jurisdiction in which they are licensed for guidance, and, upon receipt, provide such guidance to the supervisor. Prior to the receipt of such guidance, the professional shall not be required to sign any disputed document, or otherwise carry out the disputed order, direction, or assignment. If the guidance provided indicates that the disputed order, direction, or assignment would violate an applicable ethical rule or rule of professional responsibility, the employee shall not be required to take any such action with respect to that order, direction, or assignment. The employee shall immediately notify their supervisor that they cannot comply with the order, direction, or assignment.
D. An employee who has questions concerning an interpretation or application of standards of professional conduct in which they have a direct personal interest is encouraged to raise their questions with the SEC's Ethics Office.
E. If after an employee follows the steps set forth in Section 5.C. above, the supervisor continues to disagree with the guidance provided to the employee by the body responsible for the enforcement of the Code of Ethics/Professional Responsibility in the State or Jurisdiction in which the employee is licensed, the supervisor may, with the participation and input of the employee, consult with that body. If the guidance provided by that body indicates that the disputed order, direction, or assignment would violate an applicable ethical rule or rule of professional responsibility, the employee shall not be required to take any such action with respect to that order, direction, or assignment.
An employee is entitled to a reasonable amount of duty time for meetings for representational purposes with their NTEU representative. An employee who wishes to meet with a Union representative to discuss representational matters will request permission from their supervisor prior to stopping their normal duties. The employee is not required to disclose to their supervisor why they wish to contact an NTEU representative. Rather, the employee need only inform their supervisor of the general nature of the meeting (e.g., "to talk to my Union representative") and the meeting's expected duration. The supervisor shall grant the employee's request absent a significant staffing or workload problem caused by the employee's absence. If the request is denied, the supervisor will identify the time period, normally within one business day, when the employee may meet with their Union representative. If the employee requests it, the Employer may extend any relevant filing deadline by the period of the delay. The employee will notify their supervisor upon resuming their normal duties. Nothing in this Section abrogates an employee's right to union representation.
A. An employee is entitled to representation by the NTEU at any examination of the employee by a representative of the Agency in connection with an investigation if:
1. the employee reasonably believes that the examination may result in disciplinary action against the employee; and
2. the employee requests NTEU representation. If the particular NTEU representative requested by the employee is not available, the Employer will consider an employee's request to postpone the meeting for a reasonable amount of time, normally no more than one business day. A longer postponement may be granted in exceptional circumstances.
B. The role of the NTEU representative during such an examination is to:
1. assist the employee in clarifying the facts or surfacing other facts that may impact on the matter;
2. suggest other individuals who may have knowledge of the facts;
3. if they choose, write down each question and response;
4. if they choose, write down the examiner's name; and
5. advise the employee. The NTEU representative may not disrupt the examination and may not answer for the employee.
C. The Employer will provide the annual statutory Weingarten notice to all employees via electronic mail.
A. Notice. At the time that an employee is initially contacted to schedule an examination, the Employer will inform the employee:
1. Of the general subject matter of the examination;
2. Whether the employee is the subject of the investigation or is being interviewed as a third-party witness, or whether, based on all available information, the Employer is unable to make a determination as to the employee's status;
3. Whether the investigation is criminal or administrative in nature; and
4. Whether or not the interview is related to possible criminal misconduct by the employee. The employee will further be advised that their status could change at any time during the course of the investigation.
B. Administrative Investigations. The Employer will provide the following administrative warning when an employee is not suspected of possible criminal wrongdoing and the Employer is compelling the employee to answer questions as a subject or a witness:
The general nature of this matter is administrative, and this interview is not related to any foreseeable criminal misconduct on your part. Before we ask you any questions, it is my obligation to inform you of the following:
You are here to be asked questions pertaining to your employment with the U.S. Securities and Exchange Commission (SEC or Agency) and the duties you perform for the SEC. You have a duty to reply to these questions, and Agency disciplinary proceedings resulting in discipline up to and including removal from federal service may be initiated as a result of your answers. You are also advised that you may be subject to criminal prosecution for any false answers given in response to my questions. You may be subject to discipline if you fail to cooperate, refuse to answer, or fail to respond truthfully to any relevant questions.
C. Criminal Investigations. At the outset of an interview of an employee who is the subject of an investigation regarding possible criminal conduct, as reasonably determined by the Employer, the Employer will provide the employee with one of the following warnings:
1. Garrity Rights. When the interview is non-custodial, at the beginning of the interview, the Employer will give the employee the following warning:
“You are being asked to provide certain information in connection with an official inquiry regarding possible misconduct. The matter under investigation may involve violations of law that could result in criminal prosecution of responsible individuals.
a. This is a request for your voluntary cooperation. You may terminate this interview and leave at any time for any reason.
b. You have the right to remain silent if your answers may tend to implicate you in a crime.
c. Anything you say may be used as evidence against you in an administrative disciplinary proceeding and/or criminal or civil proceedings.
d. If you refuse to answer the questions posed to you because the answers may tend to implicate you in a crime, you cannot be discharged solely for invoking your Fifth Amendment right to remain silent.
e. You have the right to have legal counsel advise you and may confer with counsel before answering any questions or making any statements.
f. You are instructed to not discuss your testimony or statements with SEC employees or affected individuals, other than your attorney or other necessary advisors, during the pendency of this investigation.”
2. Kalkines Rights. When the interview is non-custodial and the employee is being granted immunity from criminal prosecution for matters disclosed in the interview, at the beginning of the interview, the Employer will provide the employee with the following warning:
“You are being required to provide certain information in connection with an official inquiry regarding possible misconduct. The purpose of this interview is to obtain information that will assist in determining whether administrative action is warranted. You will be asked specific questions regarding the performance of your official duties and/or conduct.
You have a duty to reply to the questions you are asked and to provide a statement if requested to do so. If you do not answer or reply fully and truthfully, or if you do not provide a statement as requested, you may be subject to disciplinary action, up to and including removal from federal service.
Neither your answers nor any information or evidence gained because of your answers or statements can be used against you in a criminal proceeding. However, you may be subject to criminal prosecution if you knowingly and willfully provide a false statement or false information in your answers. In addition, your answers or statements and any information or evidence resulting from your answers or statements may be used in a disciplinary proceeding that could result in disciplinary action, up to and including removal from federal service.
You have the right to have legal counsel advise you and may confer with counsel before answering any questions or making any statements.
You are instructed to not discuss your testimony or statements with SEC employees or affected individuals, other than your attorney or other necessary advisors, during the pendency of this investigation.”
3. Miranda Rights. In a custodial interview, the Employer will provide Miranda warnings if and when appropriate.
D. When an employee is given a warning under Subsection C, they will be given this warning in writing. The Employer may require the employee to sign an acknowledgement indicating receipt and understanding of the warning. Employees will be given a copy of the written warning for their own records. The employee's signature on the acknowledgement will indicate only that the employee actually received and understands the warning, and does not constitute an admission of any wrongdoing by the employee.
E. The Employer recognizes that interviews of employees by the Agency's investigative officials generally should be limited to matters of official interest to the Agency, and, accordingly, will not address private matters outside the scope of the investigation except where necessary (for example, when such matters are brought up at the employee's request).
F. To the maximum extent possible, the Employer will conduct all interviews in private.
5 U.S.C. Section 2301 – Merit system principles
(b) Federal personnel management should be implemented consistent with the following merit system principles:
(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.
(5) The Federal work force should be used efficiently and effectively.
(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
(8) Employees should be
(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and
(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences –
(A) a violation of any law, rule, or regulation, or
(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
5 U.S.C. Section 2302 – Prohibited personnel practices
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
(1) discriminate for or against any employee or applicant for employment—
(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;
(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—
(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or
(B) an evaluation of the character, loyalty, or suitability of such individual;
(3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;
(4) deceive or willfully obstruct any person with respect to such person's right to compete for employment;
(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;
(6) grant 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;
(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;
(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—
(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—
(i) any violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;
(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—
(i) any violation (other than a violation of this section) of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or
(C) any disclosure to Congress (including any committee of Congress) by any employee of an agency or applicant for employment at an agency of information described in subparagraph (B) that is—
(i) not classified; or
(ii) if classified—
(I) has been classified by the head of an agency that is not an element of the intelligence community (as defined by section 3 of the National Security Act of 1947 (50 U.S.C. 3003)); and
(II) does not reveal intelligence sources and methods.
(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of paragraph (8); or
(ii) other than with regard to remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);
(C) cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(D) refusing to obey an order that would require the individual to violate a law, rule, or regulation;
(10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;
(11) (A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement;
(12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title;
(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement—
(A) does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General or the Office of Special Counsel of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”; or
(B) prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection; or
(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13). This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.