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.

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.

Can a federal employee appeal a forced retirement to the MSPB?

We frequently consult with longtime federal employees who are towards the end of their careers and find themselves dealing with a new and unpleasant supervisor who makes their work life hell.  By the time they get to us the situation at work is bad.  Either the supervisor has issued discipline, rated them unacceptably, or placed them on a PIP.  We are frequently asked if they can claim that they were forced to quit and then pursue a claim against the agency at MSPB.

No MSPB rights unless retirement resulted from intolerable working conditions

MSPB rules hold that in order to state a claim for involuntary retirement, also called a forced removal or constructive discharge, the employee must establish that the retirement was the result of intolerable working conditions.

However, MSPB applies this rule narrowly.  It requires that the employee must show that the agency’s efforts to force the employee out were the result of improper acts by the agency and a forced removal will not be found where an employee retires “because he does not like agency decisions such as a new assignment, a transfer, or other measures that the agency is authorized to adopt, even if those measures make continuation in the job so unpleasant … that he feels he has no realistic option but to leave.”  Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013).

There are many avenues available to address problems faced by longtime federal employees.  Don’t go it alone or rely on advice you find from the internet.  Contact Alan Lescht and Associates today if you face these issues and we will put our many years of experience to work for you.

MSPB rights of federal employees who retire in lieu of removal

Federal employees can only appeal to the Merit Systems Protection Board (MSPB) in certain situations. Federal employees who are removed from their jobs generally may seek reinstatement and back pay at the MSPB. However, we occasionally encounter people who decide to retire rather than challenge a proposed removal and are asked what impact retirement will have on them. The answer is that federal employees who elect to retire may still pursue their case at MSPB but their decision to retire before removal will cause MSPB to issue a show cause order requiring them to establish jurisdiction. Because MSPB jurisdiction extends only to removal cases where the removal was involuntary, federal employees who retire in lieu of removal will need to establish that they were constructively discharged — forced to quit — in order to continue with their case. This is not an easy burden to uphold.

If you are facing removal or considering retirement, contact Alan Lescht and Associates today. Ask for advice and counsel before making critical decisions about your employment.