Misconduct and Discipline

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Federal agencies may take disciplinary action against employees who engage in misconduct. The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. Discipline can range from letters of reprimand to short suspensions.  More significant discipline is referred to as an “adverse action,” which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals.

Managers and supervisors should properly document the employee misconduct. In cases of severe misconduct, it may be appropriate to conduct an independent investigation of the misconduct through the Office of Human Resources, a third-party contact investigator or the Office of the Inspector General (OIG). Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged.

Employees who can appeal an adverse action to the Board have constitutional due process rights. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge.  After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty.  A deciding official must consider specific factors in determining the reasonableness of the penalty. These are known as Douglas factors.  Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action.

Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Bargaining unit employees may grieve an adverse action under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the MSPB. Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. 

ELLU attorneys assist managers and human resource personnel in analyzing misconduct and considering appropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions.

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