First and foremost, if you are an employee facing a potential adverse action, such as a letter of reprimand, unpaid suspension, demotion, or removal from Federal service you are entitled to certain minimum Due Process Rights. At minimum, you are entitled to the following:
- To be notified of the charge(s) or reason(s) for your proposed reprimand, suspension, demotion, removal, or other proposed adverse action;
- An explanation of the evidence supporting the charge(s); and
- An opportunity to respond to those charge(s) and the accompanying evidence supporting the charge(s).
The type of disciplinary action proposed dictates how your employer/agency must notify you and where your case or appeal may be heard. For example, if you are facing a proposed termination or removal from federal service; a suspension for more than fourteen (14) days; reduction in pay; or a layoff of thirty (30) days or less for alleged misconduct, then your employer must afford you certain rights. Those rights are:
- To provide you with 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;
- To provide you with a reasonable time, but not less than seven days, to answer the allegations orally or in writing; and
- To provide you with a written decision and the specific reasons for that decision at the earliest practicable date
You also have the right to be represented by an attorney or other representative. Further, should your employer terminate you, suspend you for more than 14 days, reduce your pay, or furlough you (lay you off) for less than 30 days, then you are entitled to appeal that decision before the Merit Systems Protection Board (MSPB).
Often times, however, your employer or supervisor will not seek to remove you, demote you, or suspend you for more than fourteen (14) days to deny you an appeal right to the MSPB. If your boss is seeking to suspend you for fourteen (14) days or less, or even proposing a letter of reprimand to be placed in your personnel file, you are still entitled to certain rights; however, you may not appeal any final decision to the MSPB. If you are facing the possibility of a suspension of up to fourteen (14) days, then you have the right to be represented by an attorney and the right to the following:
- An advance written notice stating the specific reasons for the proposed suspension
- A reasonable time (usually 10 to 15 days) to answer orally or in writing
- A written decision and the specific reasons for that decision at the earliest practicable date
Regardless of the level of punishment your employer seeks to impose upon you, your boss still has to prove that you did what he or she is accusing you of. In fact, your employer must prove at least two (2) things before seeking to punish you. First, your boss must prove that you are actually guilty of what he or she is accusing you of. Second, even if you are guilty of an offense, your boss must prove that punishing you for that offense will promote the efficiency of the service. A preponderance of the evidence is used to prove both of these things. In other words, after considering all of the available evidence, is it more likely than not that you committed the offense? Stated differently, it is the agency’s burden to present sufficient evidence to convince the trier that the substance of the charges is more likely true than not (Raines v. United States Postal Service, 32 M.S.P.R. 56, 58 (MSPB 1986)).
If you are a federal employee and have been served with a memo proposing to take some sort of punitive measure or adverse action against you, please contact our experienced Huntsville, AL, attorneys to find out your legal rights. We can advise and represent you through employment disputes, to ensure your federal employee rights are upheld. Contact us via email or at 256-533-1667.