Federal Employment Law Information
Federal employment law is constantly changing and the unique facts of your case may significantly affect the legal course you should pursue. The following information is provided not as legal advice, but to provide an understanding of rules and concepts that are at play when you are involved in employment law matters.
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Federal Sector Disciplinary And Adverse Actions
Federal employment law is similar to employment law related to other public sector employment and employment with private companies (private sector employment). However, there are very clear differences. As a comparison, in the private sector, in Utah for example, employees are presumed to be in an employment at will status, unless the employee can demonstrate that a specific duration was intended by the employer or that other job security existed.
During the start of your federal service, the probationary period is considered to be an extension of the process to consider your fit with the agency and akin to an employment at will status. If discipline or another adverse action is taken against you during this period, you will be limited in your ability to pursue a review by the Merit Systems Protection Board (MSPB), but you may be able to have a review by the Equal Employment Opportunity Commission (EEOC) if you can demonstrate facts showing a discriminatory basis to the agency action. In addition, you may be able to pursue agency grievance procedures, collective bargaining and grievance rights through a union, inspector general or congressional inquiries. During this probationary period, your employment relationship with the agency may be considered to be the equivalent of employment at will, unless greater protection is given to you, as a probationary employee, by agency practice, policy and regulations.
When you are no longer probationary and become a career status employee, the agency must generally demonstrate that the adverse actions it is taking against you rises to a level of justification known as efficiency of the service (Brook v. Corrado, 999 F. 2d 523, Fed. Cir. 1993). The agency may establish efficiency of the service by proof, through witnesses and documents or by presumptions. The efficiency of the service standard may be inferred from the facts or charges described in the proposal letter, describing the adverse action and the factual basis for the action.
Agency Procedural Protections
Adverse (disciplinary) actions the agency could take against you include letters of warning, letters of reprimand, oral or written counseling, or suspensions of 14 days or less. Of course, the agency may take greater disciplinary actions, including a suspension of longer than 14 days, as well as a demotion or a discharge. It is this latter group of disciplinary actions that are within the jurisdiction of the MSPB.
Based on agency regulations, the agency may be required to issue a notice of proposed disciplinary action to you for adverse actions involving suspensions of 14 days or less. The agency will be required to issue a proposed notice letter in actions which may be appealed to the MSPB for Chapter 75 (misconduct) cases. In the proposed notice letter, the agency is required to identify the misconduct you are alleged to have committed and the type of charge against you (i.e., theft or assault). You have a right to respond to the proposed charges against you within a number of days set out in the proposal letter. The agency should also afford you the opportunity to review the materials, relied upon by the agency to bring the proposed discipline against you.
If a performance action is brought against you (known as a Chapter 43 action), the agency will generally be required to follow specific rules, including a requirement that you receive notice of what duties you were to perform, an evaluation of your performance and a performance improvement period (known as a PIP). In adverse performance cases, the agency must generally demonstrate that it complied with its requirements by substantial evidence. The evidence standard is a lower standard that the preponderance standard (applied to most administrative proceedings and civil actions). The preponderance of evidence standard requires the agency to establish sufficient relevant evidence that a “reasonable mind might accept as adequate to support a conclusion.” (Richardson v. Perales, 402 U.S. 389, 1971; Consolidated Edison Co. v. NLRB, 305 U. S. 197,229, 1938).
An important consideration in unacceptable performance actions is that an agency may take either a discipline action, under Chapter 75 (5 U.S.C. Part 752 and Part 752, Title 5, CTR) or a Chapter 43 (performance action) for unsatisfactory performance, based on the facts of the case. Although an agency must show that it provided you with a performance improvement or warning period, if it took the performance action under Chapter 43, it is not required to allow you the opportunity for a performance improvement period under Chapter 75 (misconduct) actions. On the other hand, if the agency has discharged you on a basis of discipline, it must consider mitigation of the penalty (Brewster v Dept. of Navy, 727 F.2d 1119, Fed.Cir.1983)
Tanner Law Office attorneys can review your procedural rights, based on the federal agency you work for, your employee status (probationary vs. career status) and the length of time you have worked for the federal agency. We routinely assist in reviewing proposed discipline letters and advise and represent our clients in providing responses to the proposed adverse action to be taken by the agency.
Election Of Forum
You may appeal disciplinary actions (suspensions over 14 days to removals) to the Merit Systems Protection Board (MPSB) or the Equal Employment Opportunity Commission (EEOC), or pursue the matter through the assistance of your union in the grievance process (and ultimately arbitration). If discriminatory issues are presented related to an agency within the jurisdiction of the MSPB, you may elect to bring a mixed case appeal.
If you desire to consider filing an appeal with the MSPB or EEOC as your forum (review authority) to evaluate the agency action, it is critical that you not file a union grievance without first speaking with an attorney regarding the merits of your case and the possibility of a successful appeal to the MSPB or EEOC. An employee is required to make an election of the form in which his or her case will be decided if the agency adverse action meets the jurisdiction of the MSPB, EEO or a negotiated grievance. An employee will be required to choose the forum for the agency adverse action to be resolved. More than one forum is not permitted (5 U.S.C. § 7121 and 24 CFR 7.39).
The MSPB will generally provide a review of your case within months, with the possibility of an appeal of the initial decision of the administrative judge to the three-member MSPB. The MSPB regional office (the Denver regional office for federal employees in Utah and surrounding Western states) generally sends an acknowledgement order out to the parties within a few days of receipt of the filing of the appeal, with very specific dates for initiating and completing written discovery and depositions, deadlines for contact between the parties to discuss discovery, and later the setting of the hearing and deadlines for prehearing submissions containing lists of witnesses and documents.
If you have discrimination issues related to the agency adverse action, you may elect to file a mixed case appeal to the MSPB. A mixed case appeal allows the MSPB administrative judge to review the agency adverse action and the allegations of discrimination related to the adverse action.
Review Of Discipline Cases
In discipline cases, the agency must justify to the MSPB administrative judge that the agency adverse action promotes the efficiency of the service by a preponderance of the evidence ( more likely than not or a 51 percent standard). In these cases, the MSPB administrative judge reviews the facts in each case to determine whether the employee who is appealing the agency decision has 1) committed the offense charged and 2) the agency was within the bounds of reasonableness in its penalty decision.
In the administrative hearing, the MSPB administrative judge will sustain the agency penalty unless you can establish that the penalty chosen by the agency is found to be beyond the bounds of reasonable or “beyond the pale” (Thelsen v. Va. 31 MSPR 277,1986). The current board case law is to defer to the agency’s selection of the penalty. The MSPB (board) has noted that the test is not what penalty the board would impose, but rather, whether the penalty selected by the agency exceeds the maximum reasonable penalty (Lewis v. General Services Administration, 82 MSPR 259 (1999); Adam v. USPS. 96 MSPR 492, 495, 2004) . An agency, to meet its requirement to show that its penalty did not exceed the maximum reasonable penalty, can be expected to rely on its agency table of penalties and the fact that it followed its p rogressive discipline policy. In addition, the agency can be expected to call the deciding official as a witness to defend the agency adverse action. The deciding official can be expected to elaborate on factors affecting his or her decision. These factors are known as Douglas Factors. The standard Douglas Factors (set out in the Merit Systems Protection Board case of Douglas v. Veterans Administration, 5 MSPR 280. 1981), include:
- The nature and seriousness of the offense and its relation to the employee’s duties, position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated
- The employee’s job level and type of employment, including supervisory or fiduciary role,
- contracts with the public and prominence of the position
- The employee’s disciplinary record
- The employee’s work record, including length of service, performance on the job, ability to get along with fellow workers and dependability
- The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties, as well as
consistency of the penalty with those imposed upon other employees for the same or similar offenses
- Consistency of the penalty with the applicable agency table of penalties
- The notoriety of the offense or its impact upon the reputation of the agency
- The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question
- Potential for employee’s rehabilitation
- Mitigating circumstances surrounding the offense such as unusual job tensions,
personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter
- The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others
Whistleblower And Office Of Special Counsel (OSC)
If you, as a federal employee, report what you reasonably believe is gross mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to either public health or safety and if your federal agency takes action or fails to take a personal action due to your disclosure of this information, you may have sufficient facts to bring a whistleblower protection case with the Office of Special Counsel (OSC). OSC is an independent investigative agency under the executive branch of the federal government. This office is responsible for prosecutions and protecting the rights of federal employees under the Whistleblower Protection Act and the Uniformed Services Employment and Reemployment Rights Act, along with other responsibilities. If OSC declines to accept your whistleblower case after reviewing it, it will provide you a letter informing you of your right to bring an Individual Right of Action (IRA) to the Merit Systems Protection Board (MSPB).
In whistleblowing cases, you have a burden of proof to show that 1) you disclosed information and that 2) you reasonably believed the information related to a violation of a law, rule, or regulation or revealed gross mismanagement, a gross waste of funds, an abuse of authority, or presented a substantial and specific danger to public health or safety. You must show that the agency took or failed to take (or threatened to take or fail to take), a personnel action because of your disclosure, including: 1) an appointment, 2) a promotion, 3) an action for discipline (Chapter 75 of Title 5) or corrective action, 4) a detail, transfer or reassignment, 5) a reinstatement 6) a restoration, 7) a reemployment, 8) a performance evaluation under Chapter 43 of Title 5, 9) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph, 10) a decision to order psychiatric testing or examination, and 11) any other significant change in duties, responsibilities, or working conditions.
If you are successful in showing that your protected disclosure was a contributing factor to the adverse action taken against you by the agency, the agency must prove by clear and convincing evidence that it would have taken the same action absent the protested disclosure (Paul v. Department of Agriculture, 66 M.S.P.R. 643 (1995).
Our law firm assists federal employees in evaluating the facts related to whistleblower retaliation eases and provides representation in agency and MSPB proceedings related to these claims. For a confidential consultation about your employment law and other legal issues, call 435-243-7350 or fill out our contact form.
You may elect to file an appeal to the EEOC rather than the MSPB. One reason you might do so is that the adverse agency acts you complain of may not fit into official personnel actions or the personnel actions are not otherwise within the jurisdiction of the MSPB.
Federal agencies routinely conduct internal investigations to gather evidence regarding whether misconduct has occurred that may justify discharge or other administrative disciplinary actions, as well as potential criminal charges. The investigating official may be a management official or other individual appointed by management to determine the facts of the allegations against you, if you are the subject of such an investigation.
If you are the subject of an agency administrative or criminal investigation, it is important that you consider conferring with counsel as soon as possible. You may face tough choices. You should, of course, never provide a false statement. If you do so, you may be subject to a false official statement (i.e. 18 U.S.C. § 1001), perjury, or other administrative discipline and criminal charges. If you refuse to cooperate with an investigation, you may be subject to administrative discipline. You may have the right to not make a statement, based on the specific circumstances, including whether you are considered to be in custody and whether your statements could incriminate you. Consulting with counsel is recommended if you find yourself in this situation.
Tanner Law Office attorneys can review the options with you prior to reaching your decision regarding which specific forum (MSPB, EEOC, or arbitrator and grievance process through the union and collective bargaining agreement) is most consistent with the facts in your case, your career status (probationary vs. career status) and your resources to pursue the matter. Of course, we will assist in evaluating your case and match known information and evidence to elements of proof for the agency to sustain its adverse action and any defenses you may have available. We will advise and represent you when you are the subject of agency investigations related to misconduct, security clearance or other clearance issues.
Our firm has represented employees in matters related to the Uniformed Services Employment and Reemployment Rights Act (USERRA). Under this law, individuals who serve on active duty in the military, including the Reserves, the National Guard or other uniformed services, and who take a military leave of absence from a civilian job receive protection in returning to their job and with their seniority for a period of time. Employers of individuals participating in military duties are generally required to offer health care plans and other benefits during the military service period as though the employee had never left. Federal, state and local government employers and private employers are bound by this law. Our firm will review the facts of your case with you and the applicable protections under the law, if you have served on active duty and you are or were a member of the Reserve forces or National Guard.
Retaliation Cases, Including Discrimination, False Claims Act, OSHA And Sarbanes-Oxley
Tanner Law Office PLLC advises and represents federal civilian employees, employees of federal contractors and other employees working for state, county or local employers and private companies on qui tam and retaliation actions under the False Claims Act, under the Occupational Safety and Health Act (OSHA) and under the provisions of Sarbanes-Oxley. For a confidential consultation about your employment law and other legal issues, call 435-243-7350 or fill out our contact form.
Security Clearance And Related Cases
Our law firm advises and represents federal and private sector civilian employees and military personnel who are at risk of losing their security clearance or who have lost their security clearance in security clearance appeals and adjudication. We can review and give advice regarding the application process (including questions regarding the SF-86, EPSQ and SF-85P forms) as well as Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program and Regulation 5200.2 R Personnel Security Program, and we are available for appearances before the Department of Hearings and Appeals (DOHA). Tanner Law Office is available to assist you after you have received a Statement of Reasons (SOR) or a Letter of Intent, summarizing the government’s case against you.