Employment Protections for Federal vs. State Employees: Where the Path Diverges
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By Meg Luger-Nikolai, Attorney
This Legal Briefs column, written by Education Minnesota attorneys, is one of an occasional series on legal developments that affect educators.
The first eight months of the Trump Administration have been marked by a rapid thinning of the ranks of federal employees. That reduction in force has ranged from voluntary to extremely involuntary. This has resulted in the loss of experience and expertise in agencies like the Department of Education, the Equal Employment Opportunity Commission, the National Labor Relations Board and others.
This is, in a word, calamitous for the millions of Americans, young and old, who depend on the federal government for a range of services. Those services include ensuring that special education funding is disbursed in a timely fashion, monitoring the safety of our food supply and drinking water, and other government functions that most people do not consider to be luxuries. One might reasonably worry about how far this can go—can state employees be terminated and dismissed as easily as their federal counterparts?
Fortunately, the answer to this is no, because public employees in Minnesota have a range of job protections that help to limit arbitrary firings. Many of these protections are created by statute, and so it is critical that employees and union members in Minnesota continue to ensure that their representatives will protect their right to employment—which is often synonymous with their right to raise a family and care for themselves.
The Limits of Federal Protections When Employees See the Writing on the Wall
Prior to January 2025, many Americans rightly considered federal jobs to be among the most secure. Employees were protected by a robust civil service act, and many federal employees had the ability to join unions organized under the Civil Services Reform Act of 1978. On Jan. 28, the Office of Personnel Management sent a letter to 2 million federal employees requesting that they resign immediately in exchange for continued pay through this September. Indeed, they were asked to decide that day whether they wanted to leave their jobs.
The offer fell short of what a competent employment attorney would consider to be a clear offer, as there were a number of conditions left unclear. Still, as many as 75,000 employees did accept this “offer.” The window to accept an indeterminate and seemingly conditional severance offer closed on Feb. 12. Unions representing federal employees and employees themselves challenged this confusing, disorganized attempt at creating a “retirement” incentive, but some employees understandably had no interest in continuing to work in an undeniably chaotic environment.
The Limits of Judicial Protections
The next phase of the reduction of the federal workforce demonstrated the power that the executive branch can take for itself when the Supreme Court refuses to intervene, even in the face of violations of statutory, common and constitutional law. While the fork in the road “offer” was pending, the president issued the “Workforce Executive Order,” which froze hiring and ordered agencies to implement reductions in force. Initial RIFs covered probationary employees—including employees who were only probationary as a result of having been promoted in the last 12 months. Many of these RIFs significantly compromised the operations of the agencies in which they occurred, including at USAID, which saw 100% of its staff cut, and the Department of Education, which lost 33% of its staff.
Individual employees, unions and other interested parties brought suit. Initially, they were successful in district court, where judges found that the terminations and layoffs constituted overreach, particularly to the extent that they prevented agencies from carrying out the duties delegated to them by Congress. In short, the RIFs violated federal law because they effectively made it impossible for agencies to comply with legislative requirements.
The Trump Administration’s effort to thin the lower ranks of the federal workforce was paired with a firing spree that resulted in the termination of agency heads and board members who have had the temerity to enforce employee labor rights (Gwynne Wilcox of the NLRB), hiring protections for federal employees (Cathy Harris of the Merit System Protection Board), consumer safety protections (Mary Boyle of the Consumer Product Safety Commission) and the rights of internal whistleblowers in federal government (Hampton Dellinger of the Office of Special Counsel).
Like unions and rank and file employees, the heads and board members of agencies who were terminated found initial success in challenging these terminations as contrary to the for-cause protections that Congress had created for them in the enabling legislation for their respective agencies. Numerous district court and court of appeals judges found that these employment protections were permissible in accordance with the Supreme Court’s decision in Humphrey’s Executor v. United States, which has been the case law governing the legality of for-cause protections for individuals leading independent agencies like the NLRB, the Merit System Protections Board and the Federal Trade Commission since 1935.
Unions and individual plaintiffs who prevailed at the district court and, later, in a court of appeals, have typically received injunctive relief. In other words, courts have issued preliminary rulings preventing the Trump Administration from undertaking an unlawful act. Unfortunately, these injunctions have met a buzz saw in the form of the Supreme Court’s emergency docket—colloquially known as the “shadow docket.”
Time and time again, the Supreme Court has dissolved injunctions that district court judges put in place in order to preserve the parties’ interests ahead of a full trial. When the Supreme Court issues an order on the shadow docket, there is no opinion, only bare emergency relief and the dissenting opinions of justices in disagreement. As of this writing, the Supreme Court has not overruled Humphrey’s Executor—an action that will invalidate dozens of laws creating employment protections for appointed heads of independent agencies. However, the Court has dissolved so many injunctions issued pursuant to that case that the Trump Administration has been largely permitted to behave as if that case is no longer good law.
The View from Minnesota
Public employees in Minnesota are unlikely to experience the tumult that federal employees have experienced since January. This is in large part because Minnesota has a robust system of labor and civil service protections. It also has a clear delineation between at-will appointments in agencies and the employment status of rank-and-file governmental workers. Finally, Minnesota has responsible executive and judicial branches that are dedicated to carrying out legislative mandates with fidelity.
Unlike the Civil Services Reform Act, which has provisions that arguably limit employee rights to form a bargaining unit, Minnesota’s Public Employment Labor Relations Act has expansive jurisdiction and permits the creation of bargaining units for nearly all public employees. Importantly, PELRA contains protections that effectively prevent public employers from unilaterally decertifying or refusing to recognize existing exclusive representatives. PELRA also provides a significant degree of protection for individuals seeking to organize a union and to advocate in support of its goals. Minnesota Statutes Section 179A.06 enumerates these and other rights:
- The employee’s right to express their views about their working conditions and those of their colleagues.
- The right of public employees to organize and form a union.
- The right of organized employees to bargain collectively to create a labor agreement that identifies their working conditions.
- The right of public employees to engage in concerted activity to make their workplace better.
These rights are clear and sacrosanct, and unions and employees may enforce them in an administrative process that is also a creation of statute, not a rule or executive order. In addition to the protections of PELRA, the employment of state workers in Minnesota is governed by the provisions of Chapter 43A, which contains robust protections for applicants and employees alike. This stands in stark contrast to federal employees, whose access to civil service protections is controlled by regulations that are easier to modify than legislation. Ultimately, it would take an act of the Legislature to strip state and local public employees of the job protections that they have earned through faithful and diligent service to the people of Minnesota. Arguably, this was also the case for federal workers, because dozens of district court and court of appeals judges have identified statutory and regulatory protections that should have prevented their unceremonious terminations. A critical difference in Minnesota is that we have not had, and do not currently have, an executive leader who is willing to trammel the rights of public servants in plain violation of the law. Were that to occur, the Minnesota Supreme Court would not simply bless that reality with a series of unexplained and unsigned orders just to avoid a conflict with the executive branch that, in this case, naturally comes with the full and faithful performance of their duties.
None of this is to say that public employees in state, county and municipal employment can never face reductions in force. In the event of a budget shortfall in state or local government, Minnesota public employers may need to lay employees off—but they would have to do so in accordance with collectively bargained layoff provisions for unionized staff. Moreover, reductions in force could also trigger an obligation to bargain collectively. The vast majority of Minnesota’s public employers understand and honor these obligations. In instances in which that is not the case, employees and their unions have access to Minnesota courts and the Public Employment Relations Board to ensure that employees enjoy the protections of state law.
Federal employees and their unions are continuing to fight hard to vindicate their rights. They are up against an indifferent Supreme Court and an executive intent on scaling down necessary services. Public employees in Minnesota are unlikely to experience this combination of barriers to justice. However, none of these workplace protections came without dogged advocacy, and we can only protect them with continued vigilance and political engagement.
