Federal agencies may discipline employees for off-duty misconduct in certain circumstances. However, the agency must establish a “nexus,” or connection, between off-duty actions and the efficiency of the service. In other words, the agency must prove at least one of the following:
- The misconduct is so egregious that a connection with the efficiency of the agency is presumed;
- The misconduct adversely affects the employee’s job performance or the agency’s trust and confidence in the employee’s ability to perform; or
- The misconduct adversely affected the agency’s mission.
Is the off-duty misconduct egregious?
Whether misconduct is “egregious” is fact-specific. Just because the misconduct is illegal, does not necessarily mean it is egregious for disciplinary purposes. However, violent crimes against persons and sexual abuse of minors are generally egregious enough to establish nexus.
Does the misconduct negatively impact job performance or the agency’s trust and confidence in the employee’s performance?
In proposing discipline, the agency will argue that it no longer has confidence in the employee’s performance. Employees who engaged in misconduct related to their work duties face an uphill battle. For example, an off-duty DUI will be difficult to overcome if the employee’s work duties including operating a motor vehicle.
However, employees can provide evidence to show that their misconduct did not affect their performance. It is helpful if the employee received a positive performance rating or a grade increase after the misconduct occurred. It is good evidence if the agency knew about the off-duty misconduct but permitted the employee to continue performing his or her duties — instead of being reassigned or put on leave.
Did the misconduct adversely affect the agency’s mission?
Many different factors may determine whether off-duty actions adversely affect the agency’s mission. Off-duty misconduct may adversely affect the agency’s mission if it occurred at a work facility or work-related event. The same is true for off-duty misconduct involving other federal employees or supervisors. Negative publicity given to the off-duty misconduct may also adversely affect the agency’s mission.
Contact Alan Lescht and Associates today if you questions about being disciplined for off-duty misconduct. Call us at (202) 463-6036, or email us. We offer strategic and results-driven legal services to federal government employees around the world.
