Federal employees may be subject to discipline for off-duty misconduct

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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.

Employees have rights when facing proposed discipline

Federal employees have rights when they receive a notice of proposed discipline, such as proposed removal, proposed demotion, or proposed suspension of more than 14 days.

Except in certain circumstances, most federal employees are entitled to certain protections before they can be removed, demoted, or suspended for more than 14 days. Most federal workers have the following rights when they are facing one of these disciplinary actions:  (1) the right to written notice; (2) the right to review the evidence; (3) the right to representation; and (4) the right to respond.  5 U.S.C. § 7513; 5 C.F.R. § 752.404.

The right to written notice of proposed discipline

Before removing, demoting, or suspending an employee for more than 14 days, the agency must give the employee a written notice of the proposed discipline.  The notice of proposed discipline must describe the allegations against the employee (i.e., what type of misconduct or performance issue the employee is accused of) and what penalty the agency proposes to impose.

The right to review the evidence

The employee has the right to review any documents and any other evidence the agency relied upon in proposing the disciplinary action.  This evidence is frequently called “the documents relied upon” or “the record.”  Sometimes the proposing official or HR will automatically give the employee the documents relied upon.  However, the employee should ask for the documents and ask the agency to confirm that he/she received all of the documents relied upon.

The right to representation

The notice of proposed discipline should also state that the employee has the right to representation.  This means that the employee may enlist or retain a representative to aid him/her in responding to the notice of proposed discipline.  The representative may be a union representative, a private attorney, or any other person.  The employee should notify the agency that he/she has a representative connected to the proposed discipline.

The right to respond to the notice of proposed discipline

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An employee has the right to respond in writing and orally to a notice of proposed removal, demotion, or suspension for more than 14 days.  The agency must give the employee a “reasonable” amount of time (i.e., not less than 7 days) to respond.  The notice of proposed discipline should state when the employee’s response is due.  An employee may ask the deciding official for an extension of time to submit his/her response.  The employee may submit his/her own evidence, including but not limited to statements or declarations from witnesses, with the written or oral response.

Contact Alan Lescht and Associates, P.C., today if you are a federal employee who received a notice of proposed removal, proposed demotion, or proposed suspension for more than 14 days.  We offer strategic and results-driven legal services to federal government employees around the world.

Employee discipline under the new VA reform bill

On June 13, 2017, the House joined the Senate in approving a VA reform bill aimed at making it easier to discipline employees of the Department of Veterans Affairs.  As President Trump has already stated he will sign the bill as soon as it reaches his desk, it appears certain that substantial changes are going to be made to the VA disciplinary process.

A new procedure for employee discipline

First, the S. 1094 will create a new framework for the discipline of VA employees, speeding up the process significantly.  It will require the VA to give notice of proposed discipline, accept a response, and make a decision on the proposal within 15 days.  Non SES-employees will still have a right to appeal to the Merit System Protection Board, but must file the appeal within 10 days of the adverse action, as opposed to the current 30 day deadline.  Furthermore, the Board will be required to issue a decision on the case within 180 days.

While non-SES employees would still have the right to appeal to the Board, S. 1094 strips away  SES-employees right to appeal to the Board.  SES employees will need to appeal their discipline through an internal appeals process that will take no more than 21 days.  However, should the internal appeals decision still be adverse, the SES-employee may appeal the Agency’s decision to a U.S. District Court.

A lower standard of proof for discipline

Second, and perhaps most controversially, S.1094 establishes a new evidentiary standard used by the Board in reviewing issues of discipline.  The Board currently reviews removals and other adverse actions on a “preponderance of the evidence” standard.  This means the Agency must prove it is more likely than not that the employee engaged in the charged misconduct.  The bill would change the standard to substantial evidence, which only requires the VA to show that there is relevant evidence to support the discipline.  This will make it easier for the VA to discipline employees and harder to win on appeal before the Board.

If you are a VA employee, and facing disciplinary action, contact Alan Lescht and Associates today.  We will help you navigate the federal disciplinary process.  Call us at (202) 462-6036 or email us to schedule a consultation with an experienced federal employment attorney.

You’ve received a Notice of Proposed Removal. What do you do next?

By sending a Notice of Proposed Removal, your agency is informing you that it intends to terminate your employment. As a federal employee, you have rights. You have the right to show your agency why your removal is unreasonable or unwarranted under the circumstances. It is critical to act quickly.

What are the timelines after a Notice of Proposed Removal?

Unless an employee is believed to have committed a crime, federal agencies must provide a minimum of 30 days notice to any employee who is being removed. Furthermore, the employee must have a reasonable time frame (at least seven days) to respond to the notice. Employees also have the right to an attorney. An attorney will be critical in presenting the strongest possible case in your support.

If an agency removes me, what do I do next?

Federal employees can appeal a removal. Most appeals go through the Merit Systems Protection Board (MSPB). Depending on the circumstances, employees can appeal through the EEO or through a collectively-bargained grievance procedure. An appeal to the MSPB will involve discovery, in which you will have the opportunity to request documentation surrounding your removal and refine arguments in support of your position. Depending on the facts, these arguments could include:

  • The agency made a harmful error in applying its procedures
  • You were fired due to discrimination or on the basis of retaliation for whistleblowing
  • The penalty was excessive, disproportionate or otherwise unreasonable.

You will then have the opportunity to present your case in a hearing before an administrative judge. After getting a Notice of Proposed Removal, your choice of lawyer is a critical decision. With decades of experience in the field of federal employment law, the lawyers of Alan Lescht & Associates have successfully represented federal employees facing all types of actions, including removal. Our firm is ready to begin exploring all potential defenses to your removal. Call 202-463-6036 to schedule a consultation.