It’s a common misconception that you can’t fire a federal employee. However, most federal employees do have special protections that don’t apply to private-sector workers. Here’s a basic overview of your rights regarding federal employee disciplinary actions:
Types of federal employee disciplinary actions
The type of disciplinary action may depend on various factors, including the reason for discipline, the nature of misconduct or performance issues, your position, and your disciplinary history. These are examples of formal disciplinary actions:
- Letter of Reprimand: A letter regarding your misconduct or deficient performance remains in your official personnel file for a certain period of time.
- Suspension: You remain employed but are denied pay and prohibited from working for a specified period of time.
- Demotion: You are placed in a position at a lower grade and/or with less pay.
- Removal: The agency terminates your employment.
Federal employee disciplinary rights
The agency can issue you a reprimand or letter of counseling without giving you advanced notice. However, federal employees have rights when an agency proposes demotion, suspension, or removal. Specifically, the agency must issue a written notice of proposed discipline and a written notice of decision, which must explain your rights.
Notice of proposed discipline
You are entitled to at least 30 days’ advance written notice, unless the agency proposed to remove or suspend you based on a reasonable belief that you committed a crime for which you could be imprisoned.
The notice of proposed discipline must explain the following:
- The specific reason(s) for the proposed discipline: The notice must identify the charges against you and identify the specific incidents of misconduct or performance. The agency must provide enough information to give you a full and fair opportunity to respond to the charges.
- Your right to review the evidence: The notice of proposed discipline must advise you of your right to review the evidence supporting the charges against you. The agency sometimes provides the evidence file with the notice. Otherwise, the notice should explain what you need to do to obtain the evidence.
- The opportunity to respond orally and/or in writing: The agency must give you a reasonable time to respond to the notice of proposed discipline. You may respond in writing, orally, or both. Generally, seven calendar days or more is considered reasonable.
- Your right to a representative: The notice should also advise you that you have the right to have a representative assist you in responding to the charges. A representative could be a union rep, an attorney, or some other person. You don’t have to have a representative, and the agency’s isn’t responsible for providing one for you.
The agency may keep you in a duty status, reassign you to other duties, or place you on leave until it makes a decision on the proposed discipline.
Notice of decision
The agency must issue you a written notice of its decision to demote, suspend, or remove you. The notice must explain the specific reasons for the action and, if applicable, your right to file an appeal with the Merit Systems Protection Board (MSPB).
How does the agency decide on a disciplinary action?
The factors the deciding official considers depends on whether you the proposed discipline is for misconduct or performance.
Misconduct
The deciding official should impose discipline only if there is preponderant evidence of misconduct. Basically, preponderant evidence is enough to show that it’s more likely than not that you engaged in misconduct. The deciding official should consider only the notice of proposed discipline, the agency’s evidence file, and any response you provided. He or she should not do his or her own investigation.
In deciding the type of disciplinary action, the deciding official should consider any of the following factors (the “Douglas factors”) that are relevant:
- The nature and seriousness of the offense, and its relation to your duties, position and responsibilities, including whether the offense was intentional, technical or inadvertent, or committed maliciously or for gain
- Your job level and type of employment, including supervisory or fiduciary role, contacts with the public and prominence of the position
- Your disciplinary record
- Your work record (g., length of service, job performance)
- The effect of the offense on your ability to perform at a satisfactory level and your supervisor’s confidence in your ability to perform
- Consistency of the penalty with those imposed upon other employees for the same or similar offenses
- Consistency of the penalty with any agency table of penalties
- The notoriety of the offense or its impact on the agency’s reputation
- The clarity with which you were on notice of any rules that were violated or had been warned about the conduct in question
- Your potential for rehabilitation
- Mitigating circumstances (g., unusual job tension, personality problems, mental impairment, harassment, bad faith, malice or provocation)
- The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by you or others
The notice of decision should explain the deciding official’s analysis of the Douglas factors.
Performance
The agency may take disciplinary action if there is substantial evidence of unsuccessful performance in a critical element. Substantial evidence is less than preponderant evidence. Generally speaking, substantial evidence just means some evidence that your performance wasn’t meeting expectations. Additionally, the deciding official doesn’t have to consider the Douglas factors in cases involving performance.
However, before removing you for performance reasons, the agency must show that you failed to perform on a proper Performance Improvement Plan (PIP). A valid PIP must:
- Give you a reasonable opportunity to demonstrate successful performance;
- Be based on a critical element of your performance; and
- State the standard you must meet for successful performance.
During the PIP, the agency must provide you with assistance in meeting the PIP requirements. This usually includes your supervisor meeting with you on a regular basis to provide feedback and guidance about your progress.
What should I do if I get a notice of proposed discipline?
If you get a notice of proposed discipline:
- Ask for the evidence file if it wasn’t already provided
- Ask for an extension of time to respond, if needed
- Get a representative, if you want one
- Schedule the oral reply
Can I appeal a disciplinary action?
Most federal employees have the right to file an appeal with the MSPB if they are suspended for more than 14 days, demoted, or removed. You must file your appeal within 30 calendar days of the date you receive the notice of decision.
How can an attorney help me with a disciplinary action?
You aren’t required to hire an attorney to respond to a proposed disciplinary action. However, consulting with an experienced employment attorney may be very helpful. A lawyer can review the notice of proposed discipline and the evidence against you, and advise you about how to respond or prepare a response and provide an oral reply on your behalf. An attorney can also represent you in an MSPB appeal.
If you are a federal employee facing disciplinary action, Alan Lescht and Associates, P.C., can help. We represent federal employees around the world in connection with notices of proposed discipline, MSPB appeals, and other federal employment matters.
