In MSPB Discipline Cases, Agency Has Burden to Show Discipline Promotes The Efficiency of the Service

Federal Employment AttorneysPrivate sector employees often face tough burdens in questioning discipline and they have restricted bases to do so.  Further, to do so, many private sector employees must engage in costly litigation. For covered federal employees with covered disputed discipline, however, the situation is quite different. As a result many general employment attorneys do not accept federal employment cases, instead they refer the matters to federal employment attorneys.

One significant difference is what must be proved. For discipline matters before the Merit Systems Protection Board (“MSPB”), the agencies’ federal employment attorneys generally have the burden to prove the proposed discipline at issue complies with 5 U.S.C. 7513(a).  That statute requires the Agencies’ decisions regarding discipline to promote the efficiency of the service. As a result, in MSPB discipline cases, the Agency has the burden show discipline promoted the efficiency of the federal service.  What is meant by the phrase is not immediately clear, and federal employees should often consider consulting with federal employment attorneys.  For the most part, however, in non poor-performance cases, this means the Agencies often have to prove with the preponderance of evidence that the employee committed the offense charged.  The statute at issue also provides other protections including the following requirements:

(b) An employee against whom an action is proposed is entitled to—

(1) 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;

(2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

(3) be represented by an attorney or other representative; and

(4) a written decision and the specific reasons therefor at the earliest practicable date.


Probationary Federal Employees Often Have Limited MSPB Rights

Federal Employment AttorneysMany people, even some federal employment attorneys, wrongfully assume that the Merit Systems Protection Board (“MSPB”) never hears any cases involving probationary employees (or employees who have been in the service for less than one year).  This is not true.  However, what is true is that otherwise eligible employees must complete a one-year probationary period before they can take advantage of most of the appeal rights granted to career and career conditional employees. As an example of rights to which many non-probationary  federal employees are eligible, these employees may only be fired for what might be referred to as “just cause.”  Probationary employees have no such rights, as many federal employment attorneys know. But, the matter does not end there. Probationary employees still have many rights.  First, the probationary employee can appeal adverse actions to MSPB if they can prove they were terminated based on marital status or political affiliation. Second, the employee has a rights when the Agency is terminating the employee for events or actions which occurred prior to her or his appointment to the federal service. Perhaps most importantly, though this does not involve the MSPB directly, probationary employees can file complaints if they believe the disciplinary action was due to discrimination or retaliation for protected EEO activity.

As this shows, protecting the rights of federal employees can be complex. Our federal employment attorneys would be happy to speak with federal employees who believe they have been wronged.