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Employee Discipline

We are a Law Firm Who Knows and Understands the Federal Workplace, committed to representing federal employees who have experienced unlawful discrimination, harassment, retaliation, or unfair disciplinary actions

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Gary Levine
Gary Levine, Founder

Unlike private sector employees, who can often be terminated at the discretion of their employer, federal employees typically have a protected interest in their employment. This means that non-probationary federal employees can usually only be terminated for a specific cause, such as misconduct or inability to perform their duties.

Federal employees also have due process rights, meaning the government must provide notice of the proposed action and allow the employee an opportunity to respond to the charges. Additionally, employees have the right to challenge a termination or disciplinary action through a grievance process, an appeal, or by filing an EEO (Equal Employment Opportunity) complaint.

The Disciplinary Process

Do I Need Assistance from an Experienced Federal Employment Law Attorney

The answer to whether you need an attorney depends on the type of disciplinary action. For minor actions like admonishments or reprimands, you probably don’t need an attorney, and your union will likely be able to guide you through the process. However, for more serious actions like long suspensions, demotions, or removals, it’s highly beneficial to have an experienced MSPB (Merit Systems Protection Board) attorney. An MSPB attorney can help you craft a strong response to the proposed action and represent you when speaking to the deciding official. Having an attorney involved at this stage signals to your agency that you are serious about contesting the charges, which can encourage successful negotiations behind the scenes between your attorney and agency counsel which may result in a favorable outcome.

There are four main types of disciplinary actions in federal employment:

  1. Conduct (Progressive Discipline): Most disciplinary actions are for misconduct. Agencies must follow the principle of progressive discipline, where minor offenses result in minor penalties and repeated or more severe offenses lead to harsher penalties, including possible removal. For serious offenses, removal may be the initial proposed discipline. Misconduct that occurs off-duty can only be used for discipline if there’s a direct link to the employee’s job performance. For instance, a DUI may not affect a clerk’s job but could affect a police officer’s job performance.
  2. Performance (Removal from Federal Service): These actions happen when an employee is unable to perform their job’s essential functions, usually through no fault of their own. The agency is typically required to provide additional training, often through a performance improvement plan (PIP), to help the employee meet the required performance standards.
  3. Medical Inability (Removal from Federal Service): In these cases, an employee is physically or mentally unable to perform their job with or without accommodation. Before removal, the employee will usually request reasonable accommodation, and the agency will determine if it can accommodate them or find a suitable alternative position. Sometimes, medical inability removal can be advantageous if the employee is seeking medical retirement.
  4. Failure to Meet a Condition of Employment (Removal): This is a more straightforward type of discipline, where the employee fails to meet a specific job requirement, such as holding a valid driver’s license, professional certification, security clearance, or medical certificate. These actions can result in removal if the condition of employment is not met.

In most cases, retaining an attorney can ensure that your rights are protected and that you will have the best chance at a favorable outcome.

How We Can Help You Navigate the Process

  • The Investigation: Employee discipline typically begins with an investigation, often called a fact-finding process. If you’re a unionized employee, it’s important to consult with your union for assistance and have a union representative present during this phase. The agency may want to conduct a Weingarten interview, where you have the right to union representation. Non-union employees should seek advice from an MSPB attorney for guidance during this process. Unionized employees have the option to be represented by the union during the interview or coordinate with an MSPB attorney for additional support. It’s critical not to take this phase lightly, as anything you say during the Weingarten interview can potentially be used against you in future proceedings. Always request a copy of the Weingarten interview notes so you can review them and correct any inaccuracies before they become part of the official investigation record. This ensures that the details are accurate and protects your interests.
  • The Proposed Discipline: Proposed discipline can include actions such as admonishment, reprimand, short suspension (less than 14 days), long suspension (more than 14 days), demotion, or removal from federal service. For proposed discipline of less than 14 days, you may want to have your union represent you. We offer a free consultation to help you determine the best course of action. However, for long suspensions, demotions, and removals, it’s advisable to consult with an MSPB attorney, as you may want to appeal the decision to the Merit Systems Protection Board (MSPB). The proposed discipline should outline all the evidence that the deciding official will rely on to make their decision. This allows you to fully understand the case against you and prepare your response accordingly.
  • The Reply (oral and/or written): One of the most crucial parts of the process is your reply to the proposed discipline. It’s important to think through your response carefully, as it can significantly impact your case. We recommend seeking the assistance of an attorney (or, at least, your union) at this stage. You’ll want to present a strong argument while avoiding statements that could hurt your chances in a later appeal before the MSPB. Just like the Weingarten interview, what you say in your reply can be used against you down the line. Having an attorney can provide additional advantages, such as allowing them to appear before the deciding official and advocate on your behalf. Additionally, an MSPB attorney may be able to negotiate with the agency’s attorney behind the scenes, potentially leading to a settlement that benefits you. Because of these possibilities, it’s often wise to have an MSPB attorney representing you during this stage of the process.
  • The Decision: The deciding official will issue a written decision, which will outline whether none, some, or all of the charges are sustained. If the charges are upheld, the deciding official will then determine an appropriate penalty. The deciding offical has the option to implement the proposed penalty or reduce it to a lesser one, but they cannot increase the penalty beyond what was originally proposed. After receiving the decision, you will have the right to appeal and challenge it, following the instructions provided in the decision letter.