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Federal Employees
Performance

Federal employees enjoy rights and protections that most types of employees do not. Most federal agencies must follow specific laws when they discipline employees. In this case, “discipline” means that an agency takes personnel action against their employees, such as suspensions without pay, terminations (i.e., removals, firings), reduction in grade or pay, or furloughs. (The laws relating to Congressional employees are different and are covered by the Congressional Accountability Act).

If you work for an Executive agency and meet certain qualification (e.g., you are not a probationary employee), you probably have valuable rights. You can challenge the 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 decides to discipline you, 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 discrimination complaint within your own agency, you can file with the Office of the Special Counsel (OSC) if your case concerns a whistleblowing or a prohibited personnel practice, or you can file a grievance if you’re covered by a collective bargaining agreement.

Each of these possible avenues has significant ramifications for your case. Choosing which path is critical because once you choose one, you probably 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.

The MSPB is an independent agency charged with ensuring that federal agencies follow the law when they discipline their employees. The Board will look to several issues, including whether your agency has proven that you engaged in the misconduct and that the penalty issued was reasonable.

When it comes to issuing reasonable penalties, the agency has to consider twelve (12) factors, called the Douglas Factors.

  1. The seriousness of the offense;
  2. The employee’s position, including fiduciary or supervisory role;
  3. The employee’s past disciplinary record;
  4. The effect of the offense on the employee’s ability to perform satisfactorily or upon supervisor’s confidence in the employee’s ability to perform;
  5. The employee’s past work record, including length of service, job performance, and dependability;
  6. The consistency of penalty with those imposed in other similar situations;
  7. The consistency of penalty with the agency’s table of penalties;
  8. The notoriety of the offense;
  9. The clarity with which employee was on notice of rules or policies allegedly violated;
  10. The employee’s potential for rehabilitation and to learn from his or her mistakes;
  11. Mitigating circumstances, such as unusual job tensions, personality problems, bad faith, or malice;
  12. The adequacy of alternative sanctions to deter future misconduct.

 

At ALG, we work hard to stop the discipline before it happens. Our attorneys have invaluable experience in representing federal employees in the pre-discipline phase. We coordinate with our clients to present strong cases before discipline happens and in an effort to convince the agency that the proposed discipline is too harsh under the circumstances.

When an agency issues discipline against employees, most employees can file an appeal with the MSPB challenging the discipline. Our attorneys have extensive practice representing our clients before the Board. At the MSPB, we can also allege that the discipline was the result discrimination, retaliation, or a prohibited personnel practice.

If you are a federal employee facing an 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 your appeal options. During an initial consultation, we can discover the reasons for the discipline and explore if there are other reasons which may give 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 mistaken as you navigate through the different administrative procedures. We can discuss your legal options, weigh the strengths and weaknesses of your claims, and help you make an informed decision on how to enforce your rights. Relief can include back pay and benefits. 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.

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