Disciplinary and Adverse Action Representation
While a charge of alleged misconduct, poor performance or more could result in suspension, removal or demotion, if your appeal to the Merit Systems Protection Board is successful a judge can award a full range of remedies, including reinstatement of your employment, promotion, back pay, reimbursement of lost benefits, damages for emotional distress, and more.
Below we have provided some general information, as well as questions and answers, about federal disciplinary and adverse actions. Please remember that the information provided is general in nature: we highly recommend consulting with one of our MSPB lawyers for information specific to your case.
What Conduct Can Result In Disciplinary & Adverse Actions?
Among the types of conduct that can result in a disciplinary or adverse action are:
- Conduct Unbecoming a Federal Employee
- Falsifying Federal Information
- Violation of Prohibited Personnel Practices
- Violence or Harassment in the Workplace
- Misuse of Government Property
- Misuse of a Government Owned Vehicle
- Failure to Follow Supervisor Orders
- Poor Performance Issues
An accusation of any conduct listed above will begin with an employee investigation, continue with a written proposal and right to reply, and then proceed to the discipline stage. Regardless of the decision, most federal employees (and some candidates for federal employment) have the right to appeal to the Merit Systems Protection Board (MSPB), although the process carries with it a number of specific requirements and deadlines.
Categories of Disciplinary and Adverse Actions Subject To Merit Systems Protection Board Review
Generally speaking, disciplinary actions are less severe than adverse actions, and a lesser disciplinary action can result in written warnings or suspensions. A more severe adverse action can result in suspension or removal. The three categories of disciplinary and adverse actions are:
- Removal – the termination of an individual’s employment.
- Demotion – a reduction in rank, status, or in an employee’s grade or pay.
- Suspension – temporary removal of an employee from performing their job duties, generally without pay until reinstatement.
What Notice Must Employers Provide?
Office of Personnel Management (OPM) regulations contain notice requirements employers must provide prior to suspending federal employees, which vary based on the length of the suspension.
Suspensions Of 14 Days Or Less
For suspensions of 14 days or less, an employee must receive advance written notice, however OPM regulations don’t specify a time period for this notice. The notice must contain specific reasons for the proposed suspension and inform the employee that he or she has the right to review any materials the employer is relying on in recommending suspension.
Federal employees are provided with a reasonable time (at least 24 hours) to mount a defense, including filing a written answer and providing affidavits or other evidence in support of this defense. After receiving any written defense, the employee has the right to a written decision. They must also receive notification of their grievance rights before the imposition of a suspension.
Suspensions Of More Than 14 Days
Do you know your employee rights in disciplinary and adverse actions?For suspensions of more than 14 days, federal employees must receive at least 30 days advance written notice. This notice period is waived only when the employee has committed (or is reasonably suspected of committing) a crime subject to imprisonment.
The employee then has at least seven days to submit a response to this notice and to provide affidavits and other evidence in support. The employee also has the right to review any and all materials the employer is relying on in proposing a suspension of over two weeks.
Indefinite suspensions are rare, and federal agencies can only implement them when an employee’s actions are shown to fall into one of three categories:
- The employee has committed a crime subject to imprisonment. The suspension may last until the conclusion of the criminal matter;
- The employer has reasonable concerns about an employee’s medical condition impacting workplace safety. He or she may be suspended until determined “fit for duty”; and
- The employee’s security clearance or other access to classified information has been revoked, making it impossible for the employee to do his or her job. The suspension may last until a final determination on classified status.
Unless one of these situations applies, federal employees cannot legally receive an indefinite suspension.
What’s the Next Step If I’ve Been Notified Of An Investigation Or Proposed Action?
What Remedies Are Available?
If you prevail in your appeal before the MSPB, there are a number of potential remedies available which include:
- Reinstatement of employment;
- Award for backpay;
- A promotion or change in grade;
- Reimbursement of lost benefits;
- Compensatory damages for emotional distress;
- Purging any adverse employment records your employer maintains; and
- Appropriate administrative actions against the employees who pursued your disciplinary action.
The intent behind these remedies is to return you to your prior state of being – to make you “whole” after an adverse action. This means your remedy will depend on the length of your suspension or discipline, and your expenses. Damages will also vary depending on the impact the adverse action had on your mental and emotional health, and the extent of your employer’s wrongdoing.