Federal employees to be informed of appeal rights when adverse action is proposed

By law, federal employees are afforded protections in their employment well beyond those ordinarily held by those in the private sector. One of the most important protections under Title V of the U.S. Code is the right to advance notice when the federal government intends to take an adverse action against one if its employees—essentially, when an employee might be suspended, demoted, furloughed, or terminated.

Why is advance notice important?

Advance notice is significant in that it sets the stage for how an employee will proceed with many of the remaining rights, including response to the allegations, representation, and, potentially, appeal. Until recently, federal employees facing a potential adverse action under Chapter 75 were entitled to, in most cases, advance notice in writing and that the notice state “the specific reasons for the proposed action.”

What changed?

On December 12, 2017, the president signed into law the National Defense Authorization Act for Fiscal Year 2018 (“the Act”), which includes a provision requiring more detailed information be included. Specifically, the Act requires that proposed adverse action notices under Chapter 75 provide information regarding an employee’s right to appeal the final decision, where the employee may file the appeal, and whether the forum in which the employee chooses to file an appeal will impact her/his rights. The Act did not change any rights under Chapter 73 relating to management of performance, though adverse action may also be taken under this chapter.

This information must first be “developed” by the Director of the Office of Personnel Management. In doing so, the Director is to work with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission; however, the Act does not provide a deadline by which the information must be finalized and included in prospective notices.

Did you receive notice of a proposed adverse action?

Contact Alan Lescht and Associates, PC, today. Call us at (202) 463-6036, email us, or visit our website. We represent private employees in DC, Maryland, and northern Virginia, and federal employees around the world.