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March 31, 2023 Employment Law

Federal Employees: Can You Be Fired Without Warning?

It is commonly said that it is very difficult for government employees to be fired. While there are many misconceptions about the law in the popular imagination, this is not one of them, at least for federal employees. This is because federal employees enjoy due process rights in their employment that most private sector employees do not, one of which is that federal employees may not be fired without warning. Firing a federal employee without warning would violate several federal employment rules and regulations. If you were fired without warning from your federal job, you should speak to a Richmond employment lawyer to discuss your options. 

At-Will Employment in the Federal Government

Most private-sector employees in the United States are what are known as “at-will” employees. This means that employees may be hired or fired at any time and for any reason or no reason. It also means that employees may quit their jobs at any time and go work for another employer for any reason or no reason. Employees typically are considered to be at-will absent evidence to the contrary — such as employment contracts and agreements or regulations that specify that they may be terminated only for cause. Federal employees are not at-will employees because they generally may be fired only for poor performance or misconduct. They are also entitled to notice, an opportunity to correct deficiencies, and a right of appeal, among other protections (more below).

Legal Bases for Termination From Federal Employment

Federal employees who are fired typically are fired under either 5 U.S.C. Chapter 43 or 5 U.S.C. Chapter 75

Chapter 43

Chapter 43 covers adverse employment actions based on poor performance, which the law defines as “performance of an employee which fails to meet established performance standards in one or more critical elements of such employee’s position.” A critical element in this context is “a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee’s overall performance is unacceptable.” Just as in the private sector, satisfactory job performance looks different for every job, so termination decisions are highly fact-specific. 

Chapter 75

Chapter 75 covers adverse employment actions based on misconduct, although it can be used for performance-related issues in some cases as well. The law refers to such terminations as those necessary to “promote the efficiency of the service.” “Misconduct” encompasses a wide range of behaviors, including:

  • Absence without leave
  • Falsification of documents
  • Criminal activity
  • Misuse of government resources 
  • Failure to follow instructions 
  • Time and attendance infractions
  • Intoxication 
  • Workplace violence
  • Use of public position for private gain 
  • Behavior that affects national security 

While most Chapter 75 actions concern on-the-job misconduct, it may also apply to off-duty misconduct if there is a sufficient nexus between the off-duty conduct and the agency’s performance of its functions. This can be shown where (1) the misconduct was egregious, (2) the misconduct adversely affected the employee’s or a coworker’s performance or the agency’s trust in the employee’s performance, or (3) the misconduct interfered with or adversely affected the agency’s mission. 

The Termination Process for Federal Employees

Federal employees may not be fired without warning. The exact steps in the termination process depend upon whether the termination is based on Chapter 43 or Chapter 75, but all federal employees are entitled to notice of a proposed action, a right to review the material relied upon, an opportunity to respond to the proposed action, and a right to an appeal. This process can be quite lengthy, depending on the facts of the case. Terminations of federal employees must follow the process below. 

Performance Evaluation Phase (Chapter 43)

  1. Determination of unacceptable performance: Upon determination that an employee’s performance is unacceptable for a critical element, a supervisor should address this matter with the employee. 
  2. Opportunity period notice: The supervisor must inform the employee in writing of the critical elements they are failing and what is needed to bring performance up to an acceptable level (also known as a “performance improvement plan”) 
  3. Formal opportunity period: The employee must be given an opportunity to improve (usually 90-120 days)
  4. Determination of performance improvement: At the end of the opportunity period, the supervisor will determine whether the employee’s performance has sufficiently improved 

If you have been placed on a performance improvement plan, you may want to speak to a Richmond employment lawyer to prepare for a possible termination. 

Adverse Action Phase (Chapters 43 and 75)

If the supervisor determines that the employee’s performance has not improved (for Chapter 43 actions) or that the employee has committed an act of misconduct (for Chapter 75 actions), they may then propose an adverse employment action (including termination). At that point, the following steps must be taken: 

  1. Notice of proposed action: The supervisor must issue a written notice at least 30 days prior to the proposed date of the adverse employment action. The agency may extend this notice for an additional 30 in certain circumstances. 
  2. Opportunity to respond: The employee must be provided an opportunity to respond to the notice and may be represented by an attorney. During this time, the employee may present evidence of a medical condition or disability that may have contributed to the performance problem. 
  3. Decision issued: Within 30 days after the expiration of the 30-day advance notice period, a deciding official reaches a final decision. The agency will issue a written notice 
  4. Appeal: The employee must be informed of their appeal rights before the Merit Systems Protection Board

Contact a Richmond Employment Lawyer for More Information 

It is more difficult to be fired as a federal employee than a private-sector employee, but not impossible, and the federal government is not immune to making missteps in its employment practices. If you believe you have been unlawfully terminated from federal employment, you should seek the counsel of an experienced attorney. To get started, please contact a Richmond employment lawyer at Pierce / Jewett by calling 757-304-6655 or using our online contact form.