Importance of Choice of Defense in Federal Employee Disciplinary Actions

By Keith E. Kendall Esq.

Federal civilian employees: choose your remedy wisely. Federal employees faced with a disciplinary action that involves a suspension of more than 14 days, or removal from employment, must choose the process by which they will oppose the disciplinary action (known, in federal employment terms, as an "adverse action"). Employees who are members of a collective bargaining unit, and who are covered by a collective bargaining agreement ("CBA") must elect to proceed either by grievance under the CBA, or by a civil service appeal to the Merit Systems Protection Board ("MSPB"); but may not proceed under both. The moment an election is made, it is irrevocable.

There are pros and cons to electing either method to oppose a disciplinary action, and seeking the advice of an attorney experienced in federal employment matters could mean the difference between losing your job, or successfully opposing an adverse employment action. For example, if an employee selects a civil service remedy, due process rights - such as a right to a hearing and discovery of the other side’s evidence - is permitted. However, an MSPB appeal, if pursued through and by an attorney, is likely to become expensive. Conversely, a union grievance can be pursued at little or no cost to the union member/employee, but does not afford the full range of litigation tools that a civil service appeal to the MSPB would afford. Also, whether or not to file a grievance on a member’s behalf is largely discretionary with the union, and taking these cases to an arbitration hearing is rarer yet.

Should you be facing this difficult decision call – 717 657-7770 – to speak with me. I am happy to listen to your case and review your options with you.