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Reversed Employee Suspension at USDA Leads to New Policy on Employee Publishing Rights

Employee successfully challenges an agency's attempt to prohibit her from conducting certain activities when off the clock.

The Agriculture Department is rethinking its policy on what federal employees are allowed to do in their personal capacities following an improper disciplinary action against an employee that was later reversed. 

Wendy Koch, a former animal care officer at USDA's Animal and Plant Health Inspection Service, faced a suspension after she submitted an article to a scientific journal regarding the safe treatment of research animals. APHIS management asked Koch to recall the submission, saying she could not publish anything in her personal capacity as it would create confusion in the research community. Koch refused and the agency suspended her for 14 days while maintaining the publication ban.  

Koch sought relief with the Office of Special Counsel, an independent agency that investigates certain violations of civil service laws and protects federal employees’ rights when not acting in their professional roles. OSC launched an investigation and found APHIS had deprived Koch of her constitutional right to free speech. It issued its non-binding findings to the agency, which agreed to rescind the suspension and give Koch back pay. The Hatch Act, which OSC enforces, generally allows federal employees to speak freely when not involved in official duties. 

USDA went a step further, with OSC noting the department will implement “systemic corrective action” in response to its actions with Koch. Agriculture will issue a new policy aimed at ensuring its employees can publish when not using their professional titles. The department did not previously have written guidelines for such instances and agreed it needed to clarify what is allowed. 

“I appreciate Dr. Koch’s persistence in raising awareness about an issue important to her,” said Special Counsel Henry J. Kerner, who leads OSC. “I also applaud APHIS for rescinding its unlawful suspension and committing to establish appropriate guidelines for employees to exercise their First Amendment rights.”

Koch retired from federal service last year due to her frustrations with the Trump administration, telling National Geographic she was no longer able to contribute toward animal welfare. The APHIS Animal Care office, where Koch worked, regulates the transportation, sale and handling of certain animals. USDA did not respond to a request for comment.