FDA Policy/General

Unions Accuse FDA of Violating Employees’ First Amendment Rights

Two federal employee unions have accused FDA of violating employees’ First Amendment rights by prohibiting off-duty union activities and restricting the use of agency computers and networks for union-related communications.

In a 10/9 letter to FDA acting commissioner Kyle Diamantas and chief operating officer Melanie Keller, the National Treasury Employees Union (NTEU) and American Federation of Government Employees (AFGE) demanded that the agency rescind or clarify an 8/28 directive threatening disciplinary action, including dismissal, against employees who engage in prohibited labor-related activities.

The directive stated that employees conducting labor-related activities “in any capacity or while using FDA networks or devices, whether during duty hours or non-duty hours,” could face discipline up to removal from federal service.

The unions argue that the directive, as written, prohibits employees from participating in union activities outside working hours, even when they are not using government equipment.

“This prohibition impermissibly infringes employees’ constitutional rights because it is an overbroad, prior restraint and constitutes impermissible viewpoint discrimination,” the unions wrote.

The letter cites Supreme Court precedents establishing that government employees retain First Amendment protections, including freedom of association. The unions contended that the executive order cited by FDA as justification for the directive does not authorize restrictions on off-duty union participation.

The unions also allege unconstitutional viewpoint discrimination because the directive singles out union-related communications while permitting other limited personal uses of government computers and networks under existing HHS policy.

According to the letter, HHS policy permits minimal personal use of government information technology resources provided it does not interfere with agency operations, productivity or security requirements.

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