Adverse Actions - Solomon Law Firm

As a federal employee, you have certain protections in the workplace. However, there are times when you may be in danger of facing adverse personnel actions that can significantly impact your professional career and livelihood. It takes an experienced federal employment lawyer to understand your rights if you find yourself in this situation. The attorneys at Solomon Law are nationally and internationally recognized in the field of federal sector employment law.

We practice extensively in Washington DC., representing federal employees nationwide and internationally in adverse actions taken by their employers. Knowing that an adverse personnel action can negatively affect your employment status and reputation, we will provide you with informed representation and work to protect your rights. Contact our office today for a confidential consultation.

What Are Adverse Personnel Actions?

The federal government is the largest employer in the United States, with over 2 million civilian employees. While federal employment offers many benefits, such as job security and good benefits, it is not immune to adverse personnel actions. These are formal disciplinary actions against federal employees for alleged misconduct, poor performance, or other reasons. The best approach is to respond aggressively and comprehensively as soon as you have notice of a potential disciplinary matter. Consult an experienced federal employee attorney to evaluate your rights, defenses, and potential offensive options.

Most federal employees have a constitutionally protected interest in their employment position and can challenge an adverse action before the Merit Systems Protection Board (MSPB). This means that the government cannot penalize you without due process. Failure to provide due process is grounds for overturning the entire adverse action at the MSPB level.

Adverse personnel actions can take many forms, including:

Suspension – An employee may be suspended from duty without pay for a period of time
Demotion – An employee may be demoted to a lower grade or position with a decrease in pay
Removal – An employee may be removed from their job or position
Reduction in pay – An employee’s pay may be reduced as a disciplinary action
Reassignment – An employee may be reassigned to a different position or location

In short, adverse actions can impact an employee’s career and personal life. Our firm works with federal workers to explore legal remedies and protect their employment rights.

Common Charges Against Federal Employees

Before taking an adverse action, the government, and each federal Agency in the executive branch of government, are constitutionally required to provide advanced written notice. This is called due process. Title V federal employees are entitled to due process, without due process the government’s adverse action may be void.

Different rules apply to federal employees who are probationary employees, federal employees in the Intelligence Community (IC), and federal employees in the legislative and judiciary branches of government. Charges against federal employees are typically broken down into two categories which track the federal statutes that give rise to the government’s authority to take certain employment action: Chapter 75 misconduct charges and Chapter 43 performance charges.

Common Chapter 75 misconduct charges fall into several broad categories and are supported by detailed specifications:

Absence Without Leave – This refers to an employee’s absence from work without the proper authorization or justifiable reason, often disrupting the workflow and imposing undue burden on their colleagues.
Conduct Unbecoming – This charge usually involves actions or behavior that tarnish the image of the organization or department, and is often added as an additional allegation to other substantive misconduct charges.
Failure to Follow Instructions – This misconduct charge involves an employee’s refusal or failure to comply with valid instructions, directions, or approved governmental policies, hindering the overall operational efficiency.
Failure to Maintain a Condition of Employment –This charge refers to the failure of an employee to maintain certain prerequisites for their job, like professional licenses or security clearances, thereby potentially jeopardizing their employment status.
Falsification and Misrepresentation – This misconduct charge involves the intentional distortion or misrepresentation of information, altering official records or documents, or falsifying timecards, all of which can undermine the integrity of the organization.
Insubordination – This charge is levied when an employee deliberately disobeys or disregards the directives of a superior or supervisor, thereby undermining authority and disrupting workplace order.
Improper Use of Government Credit Card – This charge involves unauthorized or personal use of a government-issued credit card, an act that can result in financial loss to the government and breach of trust.
Lack of Candor – This misconduct charge is levied when an employee fails to fully disclose pertinent information during an official investigation, thereby hampering the truth-finding process.
Negligence – This misconduct charge is often brought against medical providers or government investigators who fail to perform their duties to the generally accepted standard of care, causing potential harm or loss.
Off-Duty Misconduct – This charge involves misconduct committed outside of work hours, such as DUIs, restraining orders, or improper use of government credentials, which can negatively affect the organization’s image.
Security Violations – This misconduct charge involves instances where sensitive data, like PII or HIPAA information, is inadvertently disclosed, or a government laptop containing such data is stolen.
Theft of Government Property– This misconduct charge can range from making false timecard entries to steal unearned salary or overtime, to the physical theft of government equipment or unauthorized personal charges on a government credit card.
Unauthorized Use of Government Computers or Internet – This charge refers to the misuse of government resources, such as accessing inappropriate or explicit material on a government computer, which breaches the code of professional conduct and trust.

Common Chapter 43 performance charges allege failure to meet expectations of one or more essential skills and requirements associated with a federal employee’s position of record. If performance is perceived as inadequate after an opportunity to improve a performance improvement plan, the government employer may propose to remove you from federal service:

Failure to successfully complete Performance Improvement Plan (PIP) – This misconduct charge refers to an employee’s inability or failure to meet the objectives and targets outlined in a Performance Improvement Plan, which was designed to help them improve their job performance. This could indicate a persistent issue with their performance or a lack of effort to rectify identified deficiencies.

Even minor adverse actions have the potential to cause enduring professional hardships due to the Government’s use of “progressive discipline.” Our nationally ranked Washington DC federal employment lawyers are available to provide advice and recommendations on the best approach to take for your individual circ

Did you get a proposal letter?

Federal employee attorneys often recommend that the best approach to a written proposal for disciplinary action is to act swiftly, and comprehensively. The necessary components of any response to consider when responding to a proposed adverse action are consultation with an expert, refuting the factual allegations, avoiding unnecessary admissions.

Responding to a Written Proposal Letter

Effectively responding to a written proposal for adverse action (suspension, reduction in grade, termination) is essential to mitigating and, sometimes, eliminating risk to your career. A comprehensive response to the allegations, together with supporting documentation, affirmative defenses, and a comprehensive analysis of the mitigating Douglas factors are necessary components of every written response to a proposal for adverse action issued by a federal agency.

The Oral Reply

In addition to providing a written reply, federal employees are entitled to provide an oral reply. An experienced federal employment attorney is in the best position to help you evaluate whether an oral reply will be an effective addition to the written reply.

MSPB

Federal employees, hired under Title V, and those with veterans’ preference have appeal rights to the Merit Systems Protection Board (MSPB) for additional proceedings to challenge certain adverse actions (e.g. 15-day suspension or greater, downgrade, removal). Although probationary employees cannot generally appeal to the MSPB, there may be exceptions, including backdoor avenues to getting your case in front of an MSPB judge.

For example, whistleblowers, including Title 38 employees (most doctors and medical professionals), cannot directly file appeals with the MSPB. However, it is possible to first file a whistleblower complaint with the Office of Special Counsel to obtain an independent right of action, which will subsequently confer MSPB appeal rights in the form of an Individual Right of Action (IRA appeal).

Potential Remedies for Adverse Personnel Actions

Federal employees who face adverse personnel actions have several legal remedies available to protect their rights and ensure they are treated fairly. Our firm can help you explore all your options, such as:

Appealing the Adverse Action

Federal employees can appeal adverse personnel actions through the Merit Systems Protection Board (MSPB). The MSPB is an independent agency created to protect the rights of federal workers. Employees have the right to a hearing before an administrative judge, where they can present evidence and witnesses to support their case.

The MSPB will review the evidence presented by the employee and the agency and issue a decision. The MSPB can order a remedy, such as a reinstatement or back pay if it finds the adverse action was unjustified. Because the appeals process is complex and time-consuming, having the assistance of a federal employment lawyer is essential.

Congressional Complaints

Solomon Law advocates for legislative branch employees to defend against adverse actions involving members of the House of Representatives, Senate, and legislative offices. With comprehensive knowledge of the Congressional Accountability Act (CAA), we have the skills and experience to protect your due process rights. Our firm also works with employees and contractors in the Intelligence Community, helping to seek Congressional intervention to challenge adverse actions related to whistleblower retaliation and USERRA violations.

The Office of Congressional Workplace Rights (OWCR)

We represent clients before the Office of Congressional Workplace Rights (OWCR), an independent, non-partisan agency responsible for administering and enforcing workplace rights and protections for legislative branch employees working in the U.S. Congress.

The OWCR, established under the CAA, extended several employment and labor laws to the legislative branch that were previously applicable only to the private sector and the executive branch. The agency is tasked with addressing various workplace-related claims, including:

The OWCR also addresses grievances related to other employment matters, such as workplace accommodations, workplace safety, and collective bargaining disputes. Our federal employment lawyers advocate on behalf of government employees and guide them through filing and pursuing their claims before the OWCR.

Filing an EEO Complaint for Discrimination

If you have experienced discrimination as a federal employee, you have a right to file an equal employment opportunity (EEO) complaint within 45 days of the discriminatory incident. Our firm is here to guide you through the process and advocate for your rights through the mediation process. If you are not satisfied with the result, we can assist with filing an appeal with the Equal Employment Opportunity Commission.

Filing a Complaint with the Office of Special Counsel

The Office of Special Counsel (OSC) is an independent federal agency that investigates allegations of prohibited personnel practices and whistleblower retaliation. Federal employees can file a complaint with the OSC.

The agency will investigate the complaint and may recommend corrective action, such as disciplinary action against the responsible officials. Filing a complaint with the OSC is particularly important for employees who do not have the right to appeal directly to the MSPB, such as doctors and nurses hired under Title 38.

Filing a Complaint with the Office of Inspector General

Solomon Law assists federal employees with filing complaints with the Office of Inspector General (OIG) regarding misconduct, waste, fraud, or abuse within their respective federal agencies, such as:

Misuse of funds
Fraud
Waste and inefficiency
Whistleblower complaint
Employee misconduct
Security concerns

The OIG operates independently from the agency’s management and is responsible for investigating and addressing allegations of misconduct and impropriety. Notably, federal law offers protections to whistleblowers who report violations in good faith, protecting them from retaliation by their employers.

Filing a Lawsuit

Federal employees who believe an adverse personnel action is due to discrimination or retaliation can file a lawsuit in federal court to recover damages for lost pay, benefits, and emotional distress.

Why You Need a Federal Employment Lawyer

Our firm is routinely recognized for the skilled representation of federal employees in adverse personnel actions. When you meet with us, we will explain your rights, determine the best course of action, and prepare your case. We will gather evidence, represent you during hearings and negotiations, and work to achieve the best possible outcome.

You can rely on our attorneys to help you understand the implications of any settlement agreement or the potential consequences of an adverse personnel action. For example, removal from federal service may result in losing your security clearance or your ability to work for the federal government in the future.

While you have several potential remedies, you need an experienced federal employment lawyer to help you navigate the process. You can depend on Solomon Law to provide you with informed representation and protect your rights.

Talk To An Experienced Washington D.C. Federal Employment Lawyer Today!

Adverse personnel actions can have serious consequences, including loss of pay, benefits, and even your career. Contact Solomon Law today to explore your legal options.