You're a federal employee who's been disciplined: Now what?

By The Office of Scaringi Law posted in Employment Law on Thursday, December 4, 2014.

Federal employees have many options when it comes to challenging disciplinary actions, but many times the process can seem like a confusing maze.

That's why I don't recommend going it alone. From my experience representing federal employees as part of my practice at Scaringi & Scaringi P.C., I know first-hand that there is no substitute for a swift and strategic response.

For specific advice about addressing and opposing a disciplinary action - and for full assistance in navigating the bewildering number of federal civil service laws and regulations that empower federal civilian employees - you'll want an experienced attorney in your corner.

In the meantime, the following is a broad look at the rights and legal remedies available to federal civilian employees facing disciplinary action.

Challenging an 'adverse action'

Ironically, in the disciplinary process, the word "discipline'' might not even come up.

Don't be fooled. If you find yourself subject to what is somewhat benignly termed an "adverse action," your career is most certainly at stake.

Federal civil service law defines an adverse action as "removals (termination of employment after completion of probationary or other initial service period), reductions in grade or pay, suspension for more than 14 days, or furloughs for 30 days or less for cause that will promote the efficiency of the service; an involuntary resignation or retirement is considered to be a removal."

Under Pennsylvania law, for example, an "adverse action" would be equivalent to a "personnel action" in triggering an affected employee's civil service appeal rights.

Every official adverse action taken by the federal government against a civilian employee begins with a written notice of the disciplinary action being proposed. The notice must advise the affected employee of the grounds for the action - i.e., what you allegedly did or didn't do in the performance of your job to warrant discipline.

What is more, the official notice must inform the employee of his or her right to respond to the allegation(s), including the ability to submit a rebuttal addressing and explaining the reason(s) and/or justification(s) for an alleged incident.

One of the first steps I take with clients is to respond in writing to all of the allegations. If additional time is required in order to fully respond, extensions are liberally granted - but only if one knows to ask.

The bottom line is this: The notice is a serious wake-up call that it's time to begin taking steps to assert your federal employee rights and begin telling your side of the story.

Due process is your friend

The primary legal remedy begins with an administrative appeal to the Merit Systems Protection Board (MSPB), which is the federal equivalent of a state Civil Service Commission. An appeal to the MSPB can be filed online. But the key is crafting a timely and effective response.

Once an appeal is filed, the full avenue of due process opens up to the federal employee facing discipline. You and your attorney will follow a multi-step process that the government has put in place to assist these employees in protecting their careers by explaining and defending their actions.

The overriding justification for the imposition of punishment is that it is "promoting the efficiency of the federal service."

Not sure what that means? Join the club. It's a fluid and nebulous term, not unlike the "just cause" standard under most state civil service systems.

Under this vague standard, it is important to keep in mind that the justification for discipline, as well as the penalty imposed to punish the alleged conduct, should be litigated.

I've successfully defended many federal employees facing disciplinary actions. But I can't stress enough the importance of quickly contacting an attorney as soon as you are placed on notice that you are facing an adverse action. Your career depends on it.

In my next column, we'll take a closer look at the due-process rights available to federal civilian employees facing discipline.

To learn more about how Scaringi Law can help you, call us at 877-LAW-2555 or email us at info@scaringilaw.com.