Federal employees enjoy rights and protections that most types of employees do not. Most federal agencies must follow specific laws when they discipline employees for misconduct or poor performance. In this case, “discipline” means that an agency takes a personnel action against an employee, such as suspensions without pay, terminations (i.e., removals, firings), reductions in grade or pay, or furloughs. The Merit Systems Protection Board (MSPB) is an independent agency charged with, among other things, ensuring that federal agencies follow the law when they discipline their employees.
If you work for an executive agency and meet certain qualifications (e.g., you are not a probationary employee), you probably have valuable rights. You can challenge discipline before it happens. Your agency must notify you that it intends to discipline you and it must explain why. You are allowed to review the evidence the agency relies on for the proposed adverse action. You can also have an attorney represent you and respond to the proposal on your behalf and with you.
If an agency suspends you for more than 14 days, fires you, furloughs you or reduces your grade or pay, you can challenge the discipline through several different avenues – you can appeal to the Merit Systems Protection Board (MSPB), you can allege discrimination through a complaint within your own agency, you can file with the Office of the Special Counsel (OSC) if your case concerns whistleblowing or a prohibited personnel practice, or you can file a union grievance 0 if you’re covered by a collective bargaining agreement.
Each of these possible avenues has significant ramifications for your case. Choosing the right path is critical because once you choose one, you generally cannot go back and choose a different path. If you choose the wrong path, you can lose valuable rights and leverage. To fully understand which option is right for you, you should speak with an attorney who has particularized knowledge of the rights and remedies available to federal employees.
When an employee appeals a personnel action to the MSPB, the Board will consider several issues, including whether your agency has proven that you engaged in the misconduct as alleged and whether the penalty issued was reasonable.
When it comes to issuing reasonable penalties, the agency has to consider twelve (12) factors, called the Douglas Factors.
- The seriousness of the offense;
- The employee’s position, including fiduciary or supervisory role;
- The employee’s past disciplinary record;
- The effect of the offense on the employee’s ability to perform satisfactorily or upon a supervisor’s confidence in the employee’s ability to perform;
- The employee’s past work record, including length of service, job performance, and dependability;
- The consistency of the penalty with those imposed in other similar situations;
- The consistency of the penalty with the agency’s table of penalties;
- The notoriety of the offense;
- The clarity with which the employee was on notice of rules or policies allegedly violated;
- The employee’s potential for rehabilitation and to learn from his or her mistakes;
- Mitigating circumstances, such as unusual job tensions, personality problems, bad faith, or malice;
- The adequacy of alternative sanctions to deter future misconduct.
At ALG, we work hard to stop the discipline before it happens. Most federal employees have the right to receive advance notice of any proposed discipline before a decision has been made and to respond to the notice of proposed discipline. Providing a strong, well-organized, and supported response at the proposal stage is often critical and can save your job or result in a significantly reduced penalty. Our attorneys have years of experience representing federal employees in the pre-discipline phase. We coordinate with our clients to present strong cases before discipline happens in an effort to convince the agency that the proposed discipline is either not supported by the evidence, too harsh under the circumstances, and/or motivated by unlawful considerations.
If an agency issues discipline against an employee, most federal employees can file an appeal with the MSPB challenging the discipline. Our attorneys have extensive practice representing employees before the Board. At the MSPB, we can also allege that the discipline was the result of discrimination, retaliation, or a prohibited personnel practice. If the MSPB finds that the adverse action was unlawful, relief can include back pay and benefits and restoration of terminated employees.
If you are a federal employee facing disciplinary or adverse action and want to know your rights, contact us. Our attorneys are committed to giving your information and tools to make a strong case, whether you’re facing a proposal or considering your appeal options. During an initial consultation, we can discover the reasons for the discipline and explore if there are other reasons that may be illegal (such as discrimination and reprisal). We can also help you choose the best path for you to challenge the discipline and make sure you don’t make any mistakes as you navigate through the different administrative procedures and options. We can identify your legal options, weigh the strengths and weaknesses of your claims, and help you make an informed decision on how to pursue your claims. We can talk about recovering attorney fees and whether you might be eligible for compensation for emotional harm and damage to your reputation and career.
