Federal Disciplinary Action and Adverse Action Lawyers

Categories and Types of Disciplinary and Adverse Actions

Under federal law, a “disciplinary action” is defined as:

1. Letter of Reprimand (note that a Letter of Counseling is NOT considered a disciplinary action); or
2. A suspension of 14 days or less.

An adverse action, on the other hand, is defined as:

1. A Suspension of 15 days or more;
2. A Change to a Lower Grade (Demotion); or
3. A Removal (Termination) from federal employment.

Removals and demotions can occur under 5 U.S.C. § 7513 (performance or conduct that harms the efficiency of the service) or 5 U.S.C. § 4303 (failure in a critical performance element). The agency selects the applicable law based on the circumstances and must adhere to the conditions specified under that particular law.

When dealing with removals or demotions, it is crucial for the agency to inform the employee of which law (Chapter 75 or Chapter 43) is being applied and for what charges before taking any action. Once an action is taken under a specific law, the agency typically cannot later reclassify it under a different law. For further insight into the distinctions between Chapter 75 and Chapter 43, refer to the MSPB’s article titled “Performance-Based Actions under Chapters 43 and 75 of Title 5 – Similarities and Differences.”

1. DEMOTIONS

A demotion may involve a reduction in rank, status, grade, pay, or a combination thereof. Such a setback can significantly impede career progress, potentially impacting financial stability and prospects. As discussed above, demotions can proceed under either Chapter 75 or Chapter 43 and are considered adverse actions.

1. REMOVALS (TERMINATIONS)

Facing termination or removal from federal employment necessitates understanding the grounds for such action. Avoid assumptions and collaborate closely with an experienced federal adverse action attorney to explore all avenues for safeguarding your career. As discussed above, removals can proceed under either Chapter 75 or Chapter 43 and are considered adverse actions.

1. SUSPENSIONS

A suspension involves placing an employee temporarily without duties and paying for disciplinary reasons. Unlike removals and demotions, suspensions can only be implemented under Chapter 75, not Chapter 43. Suspensions can be either “disciplinary actions” (if 14 days or under) or “adverse actions” (if 15 days or more).

Various types of suspensions exist, each with potentially differing standards or procedures:

1. Suspensions of 14 Days or Less: Minor disciplinary issues may result in suspensions lasting 14 days or less. As discussed above, suspensions of 14 days or less are considered “disciplinary actions.” When an agency seeks to suspend an employee for 14 days or less, certain rights are afforded to the employee, as provided by both statute and Office of Personnel Management (OPM) regulation 5 U.S.C. § 7503 and 5 C.F.R. § 752.203.

1. 1. As per statute, the employee is granted “an advance written notice stating the specific reasons for the proposed action.” OPM’s regulation complements this by ensuring that the employee is informed of their right to review the materials relied upon by the agency.
   2. According to statute, the employee retains the right to “a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer.” OPM’s regulation further specifies that this response period cannot exceed 24 hours.
   3. By statute, the employee is entitled to “be represented by an attorney or other representative.” OPM’s regulation adds that the representative must not have a conflict of interest and cannot be an employee needed for priority work assignments.
   4. Under statute, the employee is entitled to “a written decision and the specific reasons therefor at the earliest practicable date.” OPM’s regulation also mandates notification of any grievance rights.
   5. Neither the statute nor OPM regulations specify the standard of proof for such suspensions. However, agency policies or collective bargaining agreements (CBAs) may address matters where the statute and OPM regulations are silent or provide additional employee protections.
   6. A suspension of 14 days or less is generally not appealable to MSPB, but there are exceptions to this rule. For instance, MSPB may have jurisdiction over claims that an otherwise unappealable suspension was taken in retaliation for whistleblowing activity or as a result of the employee’s performance of military service.

1. Suspensions of 15 Days or More: Serious infractions may lead to suspensions exceeding 15 days or more. When an agency seeks to suspend an employee for 15 days or more, certain rights apply, as provided by statute and OPM regulation 5 U.S.C. § 7513 and 5 C.F.R. § 752.404.

1. 1. According to statute, the employee is guaranteed “at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action.” OPM’s regulation also ensures that the employee typically remains in duty status during this notice period.
   2. As per statute, the employee is afforded a minimum of seven days to respond orally and in writing and to provide supporting evidence. OPM’s regulation further specifies that if the employee is still working, they must be given official time to review the materials relied upon by the agency.
   3. Under statute, the employee maintains the right to be represented by an attorney or other representative, subject to the same restrictions as shorter suspensions.
   4. As stipulated by statute, the employee is entitled to “a written decision and the specific reasons therefor at the earliest practicable date.” Similar to shorter suspensions, OPM’s regulation requires notification of any appeal or grievance rights.

1. Indefinite Suspensions: An indefinite suspension involves placing an employee in a temporary status without duties and pay for an unspecified period. To justify an indefinite suspension, the agency must demonstrate that (1) it imposed the suspension for an authorized reason; (2) the suspension has a defined end (an event that will trigger its conclusion); (3) the suspension is related to the efficiency of the service; and (4) the penalty is reasonable.

1. 1. Indefinite suspensions can occur under three circumstances: (i) pending prosecution for a crime punishable by imprisonment, (ii) fitness for duty concerns, or (iii) security clearance revocation hindering job performance.
   2. If an indefinite suspension lasts for more than 14 days, it becomes subject to the same procedural requirements as other suspensions exceeding 14 days.

What Types of Situations Can Result in Disciplinary or Adverse Action for Federal Employees?

Under federal law, various specific circumstances can lead to disciplinary or adverse action for government employees. These include:

1. Absence Without Leave (AWOL) or Attendance Issues: AWOL refers to unauthorized absence from duty, while attendance issues encompass habitual tardiness or failure to adhere to established work schedules.
2. Inadequate Performance: Failing to perform your job responsibilities competently can lead to adverse or disciplinary action.
3. Misuse of Funds: This involves the inappropriate or unauthorized use of government funds or resources, including financial misconduct or mishandling of funds.
4. Violence in the Workplace: Engaging in physical altercations or threatening behavior towards colleagues or superiors constitutes workplace violence, which is a serious offense.
5. Falsification: Providing false information or documentation, such as falsifying timesheets or reports, is considered falsification and can result in disciplinary action.
6. Insubordination or Failure to Follow Directives: Refusal to comply with lawful instructions or directives from supervisors constitutes insubordination and can lead to disciplinary measures.
7. Security Violations: Breaching security protocols or mishandling classified information compromises national security and warrants disciplinary action.
8. Improper Use or Theft of Government Property: Unauthorized use, removal, or destruction of government-owned assets, including government-owned vehicles or other property, constitutes misconduct and can result in disciplinary consequences.
9. Conduct Unbecoming a Federal Employee: Engaging in behavior that reflects poorly on the agency or undermines public trust, such as unethical or unprofessional behavior, is considered misconduct.
10. Prohibited Personnel Practices: Violating laws or regulations protecting employee rights, such as discrimination or whistleblower retaliation, can result in disciplinary action.
11. Lack of Candor: Withholding or misrepresenting information during official inquiries or investigations constitutes a lack of candor and can lead to disciplinary measures.
12. Theft, Threats, Sexual Assault, and Other Criminal Offenses: conduct that violates criminal laws can result in disciplinary action.
13. Loss of Federal Security Clearance (Temporary or Permanent): if your security clearance is denied, revoked, or suspended, you may be subject to adverse or disciplinary action.

Adverse Actions Process Overview

The procedure for disciplinary or adverse action under federal employment law typically follows a structured process outlined by applicable statutes, regulations, and agency policies. The Merit Systems Protection Board (MSPB) created a visual Adverse Action Process Flow Chart outlining the key steps in initiating an “adverse action” under Chapter 75 of Title 5.

While specific procedures may vary depending on the agency and the nature of the action, the following steps provide a general overview:

1. Investigation.  The agency official will gather evidence, such as witness statements, emails, copies of customer complaints, and data reports. If deemed appropriate, the employee will be allowed to provide their side of the story before further action is taken. (Collecting only one side of the allegations may lead to an incomplete understanding of the events). The proposing official will evaluate the evidence, including their own firsthand observations, and determine whether an adverse action is justified.
2. Notice of Proposed Action: The employee is typically provided with a written notice of the proposed disciplinary or adverse action. This notice should include:

• Specification of the law or regulation justifying the action.
• Clear delineation of the charge(s) and specification(s).
• Identification of the deciding official, their contact information, the deadline for submitting a written response, and the deadline for scheduling an oral response.
• Notification of the employee’s right to have a representative, such as a private attorney or union representative.
• Guidance on how the employee can obtain a copy of or access to the evidence.
• Declaration of the proposed penalty and the factors the deciding official will consider in determining the appropriate penalty.

1. Opportunity to Respond: The employee can respond to the proposed action, either orally, in writing, or both. This may involve submitting a written response addressing the allegations and presenting any evidence or arguments in their defense.
2. Review of Response: The agency reviews the employee’s response to the proposed action and any supporting evidence or arguments presented. The agency may consider additional information or conduct further investigation depending on the circumstances. If new information is acquired, the official will notify the employee of the additional details under consideration and offer an opportunity for further response. The initial proposal may be withdrawn, and a revised proposal issued if the agency deems it necessary, such as in cases where errors are identified in the proposed action or if action is warranted based on different grounds.
3. Decision by Agency Official: A designated agency official, often called the deciding official, reviews the case and decides whether to proceed with the proposed disciplinary or adverse action. This decision should be based on a thorough review of the evidence and consideration of any mitigating factors.
4. Written Notice of Decision: The agency issues a written notice of the decision to the employee. If the decision involves imposing a disciplinary or adverse action, the notice should include the specific reasons for the decision, the effective date of the action, and information about the employee’s rights to appeal or seek further review.
5. Appeal or Grievance Rights: If the employee disagrees with the agency’s decision, they may have the right to appeal or file a grievance. This typically involves initiating an administrative appeal process within the agency or seeking review by an external oversight body, such as the Merit Systems Protection Board (MSPB).
6. Appeal Process: The employee may be entitled to a hearing or other procedural safeguards during the appeal process. This could include presenting evidence, calling witnesses, and cross-examining witnesses presented by the agency.
7. Final Decision: After considering the evidence and arguments presented during the appeal process, the MSPB or other reviewing authority issues a final decision. Depending on the findings and legal considerations, this decision may uphold, modify, or overturn the agency’s original decision.

It’s important to note that the specific procedures and timelines for disciplinary or adverse actions may vary depending on the applicable laws, regulations, and collective bargaining agreements governing federal employment. Additionally, employees should seek guidance from experienced federal employment attorneys to navigate the process effectively and protect their rights.

What Are Your Options When Confronting Disciplinary or Adverse Action as a Federal Employee?

Facing disciplinary or adverse action as a federal employee does not necessitate passive acceptance of the government’s decision. Depending on your circumstances, you have several options available:

1. Defending Yourself During the Government’s Investigation: If you are under investigation, you have the right to legal representation. Often, it is possible to resolve investigations favorably with the assistance of legal counsel.
2. Responding to Proposed Disciplinary or Other Adverse Action: Upon receiving notice of a proposed demotion, suspension, or termination, you retain the right to respond. Collaborating with an experienced federal adverse action lawyer can strengthen your response and protect your interests.
3. Negotiating a Favorable Outcome: Negotiation is a viable strategy in federal disciplinary and adverse action matters. Pursuing an agreement that safeguards your employment may be advantageous depending on your case’s specifics.
4. Filing a Complaint or Grievance: If you believe you have been unfairly targeted, filing a complaint or grievance can protect your employment and prevent the recurrence of similar treatment.
5. Filing an Appeal: In the event of a demotion, suspension, or termination, you may challenge the decision by filing an appeal with the Merit Systems Protection Board (MSPB) or another applicable federal agency.

If you’re a federal employee facing a pending investigation or disciplinary action, it’s crucial to act swiftly. Early intervention is vital to protecting your rights. We strongly advise seeking guidance from one of our experienced federal employment law attorneys to understand your options.

Our legal team can assist you in formulating a response to the allegations, negotiating a favorable resolution, lodging a complaint for unfair treatment, or appealing to the Merit Systems Protection Board (MSPB). Given our extensive experience representing federal employees before the MSPB, we recognize the significance of addressing notices of investigation or disciplinary action with utmost seriousness.

What Defenses Are Available?

Facing a disciplinary or adverse action as a federal employee can be stressful and challenging. However, federal employees can utilize several defenses and strategies to protect their rights and mitigate the consequences of such actions. Some common defenses to disciplinary or adverse actions under federal employment law include:

1. Lack of Just Cause: One of the primary defenses is to challenge whether there was just cause for the disciplinary or adverse action. This involves examining whether the employee’s conduct or performance violated agency policies, regulations, or laws.
2. Procedural Errors: Federal agencies are required to follow specific procedures when taking disciplinary or adverse actions against employees. Procedural errors, such as failure to provide adequate notice or an opportunity to respond, can invalidate the action and provide grounds for appeal.
3. Mitigating Circumstances: Employees may argue that mitigating circumstances, such as personal or medical issues, influenced their conduct or performance. Demonstrating that external factors contributing to the behavior in question can sometimes lead to a more lenient outcome.
4. Disparate Treatment: If it can be shown that other employees who engaged in similar conduct or had similar performance issues were treated more favorably, it may be possible to argue disparate treatment and challenge the fairness of the disciplinary action.
5. Retaliation: Employees who believe they are being targeted for disciplinary action in retaliation for engaging in protected activities, such as whistleblowing or filing a discrimination complaint, may have grounds for a retaliation defense.
6. Insufficient Evidence: Employees can challenge the sufficiency of the evidence presented by the agency to support the disciplinary or adverse action. If the evidence is weak or lacks credibility, it may not be sufficient to justify the action.
7. Violation of Rights: Employees may assert that their constitutional or statutory rights were violated in the disciplinary process. This could include violations of due process rights, First Amendment rights, or protections against discrimination or harassment.
8. Negotiation and Settlement: In some cases, it may be possible to negotiate a settlement with the agency to resolve the disciplinary matter without proceeding to a formal appeal. This could involve agreeing to lesser sanctions or conditions in exchange for dropping the disciplinary action.

It’s essential for federal employees facing disciplinary or adverse actions to seek guidance from experienced federal employment attorneys who can assess the specific circumstances of their case and advise them on the most effective defense strategies. Each case is unique, and an attorney can provide tailored advice and representation to help employees protect their rights and interests.

What Remedies Can I Expect?

In the event of a successful appeal before the MSPB, several potential remedies may be available to you, including:

• Reinstatement of employment;
• Backpay compensation;
• Promotion or grade change;
• Reimbursement for lost benefits;
• Compensation for emotional distress;
• Removal of adverse employment records maintained by your employer; and
• Appropriate administrative actions against those responsible for pursuing disciplinary action against you.

These remedies are designed to return you to your former status, restoring you to a state of “wholeness” after facing an adverse action. The remedy you are entitled to will depend on factors such as the length of your suspension or disciplinary measures and related costs. Moreover, the damages awarded may vary based on the effects of the adverse action on your mental and emotional health, as well as the severity of your employer’s wrongdoing.

Frequently Asked Questions (FAQs)

Safeguard Your Career: Why Choose National Security Law Firm’s Federal Employment Attorneys?

In the intricate world of federal employment law, navigating the complexities of disciplinary actions, adverse actions, and other legal matters can be daunting. As a protective client, having knowledgeable and experienced legal representation is crucial to safeguard your career and rights. At the National Security Law Firm, our team of dedicated federal employment attorneys is committed to advocating for clients facing challenging legal situations.

While a Letter of Reprimand will only remain in your Official Personnel File (OPF) for one to three years, documentation of any suspension, change to lower grade/demotion, or removal from federal service will remain in your OPF indefinitely. This record can greatly impact your reputation, income, and broader career with the federal government or private sector.

Therefore, it is crucial to reply to any misconduct allegations, proposed removal or poor performance against you. A federal employment attorney familiar with the federal government’s disciplinary process will ensure that you and the agency follow the right procedures. We offer knowledgeable and experienced legal representation,

Here’s why choosing our firm can make all the difference:

1. Expertise in Federal Employment Law: Our attorneys specialize in federal employment law and deeply understand the statutes, regulations, and procedures governing federal employees. With years of experience in this niche field, our attorneys have successfully represented numerous clients in various federal employment matters, including several Fortune 500 companies.
2. Nationwide representation: Our law firm represents federal employment law clients coast to coast, so regardless of where you are located, we can help.
3. Tailored Legal Strategies: We recognize that each case is unique, and we approach every client’s situation with personalized attention and tailored legal strategies. Whether you’re facing disciplinary action, adverse action, or other employment-related challenges, we work closely with you to develop a comprehensive plan aimed at achieving the best possible outcome.
4. Proven Track Record of Success: Our firm has a proven record of representing federal employees across various agencies and departments. We have successfully negotiated favorable settlements, obtained dismissals of disciplinary actions, and secured favorable outcomes in administrative proceedings and appeals.
5. Vigorous Advocacy and Representation: At the National Security Law Firm, we are committed to vigorously advocating for our clients’ interests at every stage of the legal process. From initial investigations to administrative hearings and appeals, we provide steadfast representation to protect your rights and preserve your career.
6. Client-Centered Approach: We prioritize our clients’ needs and concerns, and our approach ensures that you receive the attention and support you deserve. We take the time to listen to your goals and concerns, providing clear and honest guidance throughout the legal process.

Don’t just take our word for it. Our Google reviews speak for themselves. When researching law firms to represent you in federal employment matters, it’s essential to consider the experiences of past clients. Reading reviews and testimonials can provide valuable insights into the firm’s reputation, professionalism, and track record of success. At the National Security Law Firm, we are proud of the positive feedback from satisfied clients who entrusted us with their legal matters.

In conclusion, legal representation is crucial when facing federal employment challenges. With the National Security Law Firm’s experienced federal employment attorneys by your side, you can trust that your career and rights are in capable hands.

Contact us today to schedule a consultation and learn more about how we can assist you in navigating the complexities of federal employment law.