Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘MSPB’

Responding to a proposed disciplinary action

Tuesday, November 20th, 2018

There is short window to give your formal reply

Employees of federal agencies have many rights that do not apply in the private sector. One important protection is the right to be notified in advance of disciplinary action.

If you are facing an adverse action – suspension, demotion or removal – you may have as little as seven days to give your formal reply. With your job and possibly your federal career on the line, you should involve an attorney who practices federal employment law.

The dreaded proposal of adverse action

You may find your job in jeopardy due to supposed misconduct or performance issues. Your federal agency must give you a written proposal that outlines (a) the evidence of wrongdoing or poor performance and (b) the adverse employment action that is proposed. The proposal must be provided at least 30 days in advanced of the sanctions.

The agency must give you an opportunity to provide a formal reply to the proposed sanctions. This time frame may be as short as seven days, depending on the agency and the type of action.

Your reply is reviewed by a higher level manager. Even if the agency upholds the proposal and implements the proposed action, your formal reply will serve as the foundation for appeal. It is important to provide a detailed and timely response. Your attorney can help you draft a reply that complies with your agency’s protocols.

Appealing an unfavorable decision through the MSPB

If you are slated for termination, downgrade or suspension of 14 or more days, you can appeal to the Merit Systems Protection Board. Your case will be heard in an MSPB hearing or, or in an arbitration if you are a member of a union.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on November 2, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

News from Congress: VA Employees' Civil Service Protections Slashed

Wednesday, July 12th, 2017

On June 23, 2017, the President signed into law Pub.L. 115-41.  The new statute reduces civil service protections for employees of the Department of Veterans Affairs (DVA).

Pub.L. 115-41 renews the push to cut back VA civil service protections, after the prior attempt under the last Administration saw adverse actions reversed at the Merit Systems Protection Board (MSPB) and portions of the statute struck down as unconstitutional.

Pub.L. 115-41 is more expansive than the prior statute.  Instead of just applying to Senior Executive Service (SES) employees at DVA, the statute applies to all DVA civil service employees, but different rules apply to different categories of employees.

SES employees and certain other individuals in executive or administrative positions can be removed, suspended, reprimanded, involuntarily reassigned or demoted by the Secretary, with notice and opportunity to respond to the proposal limited to 7 business days and the overall period from proposal to decision limited to 15 business days.  Affected DVA employees lose MSPB appeal rights.  Instead, adverse actions taken under this mechanism may solely be grieved to a new DVA internal grievance process, with a final decision due within 21 days.  Final decisions by DVA are then subject to judicial review.

Other DVA employees also suffer cuts to their civil service protections.  Under Pub.L. 115-41, affected employees may receive proposed adverse actions from the Secretary, with notice and opportunity to respond to the proposal limited to 7 business days and the overall period from proposal to decision limited to 15 business days.  MSPB appeal rights are retained, but the appeal deadline is cut to 10 business days.  The MSPB administrative judge must issue a final decision within 180 days.  The VA’s burden of proof to support its charges is cut to mere substantial evidence.  The MSPB may not mitigate to a lesser penalty (it must uphold the penalty or reverse entirely).

Pub.L. 115-41 moves into statute the DVA whistleblower office created by Executive Order 13,793.  The Secretary cannot remove, demote or suspend non-executive whistleblowers with active cases before the Office of Special Counsel (OSC) or the DVA whistleblower office without permission of the relevant whistleblower office.

Pub.L. 115-41 also allows the Secretary to disallow retirement service credit for DVA employees who are convicted of felonies.  Pub.L. 115-41 also allows the Secretary to claw back bonuses, awards and relocation expenses paid to DVA employees under certain circumstances.

This blog was originally published by The Attorneys of Passman & Kaplan, PC on July 7, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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