The Top Mistakes Federal Employees Make in Disciplinary Actions – and How to Avoid Them

Federal employees enjoy more job protections than private sector employees. Nevertheless, they can — and frequently do — face disciplinary procedures that can seriously affect their careers. If you’re facing disciplinary action as a federal employee, a Norfolk federal employment lawyer can help you avoid costly mistakes. 

The Federal Employment Disciplinary Process 

Federal employees are subject to both disciplinary actions and adverse actions. “Disciplinary actions” are the less severe variety and can take several forms, including verbal or written counseling, letters of reprimand, and/or suspensions of up to 14 days. Adverse actions, on the other hand, can include suspensions of over 14 days, demotions or pay decreases, or termination of employment. 

Generally, the disciplinary process proceeds as follows: 

1. Agency investigation: Before proposing a disciplinary action, the agency will conduct an internal investigation into the alleged misconduct. The employee is entitled to review the materials generated by the investigation upon which the agency relies. 
2. Notice to employee: The agency will issue a written notice to the employee informing them of the proposed action and the reasons behind it, as well as their right to review the materials and respond. 
3. Employee response: The employee is given a reasonable time to respond (not less than 24 hours) either orally or in writing and to provide affidavits or other evidence in support of their answer. Employees are entitled to be represented by an attorney or other representative at this stage. 
4. Agency decision: A deciding official will review the record and determine whether the proposed disciplinary action is warranted. The decision will specify the reasons for the action, determine the level of discipline to be imposed, and inform the employee of their grievance or appeal rights. 

Disciplinary actions involving suspensions of less than 14 days are generally not appealable to the Merit Systems Protection Board, unless the employee alleges that the action was taken in retaliation for whistleblowing. Otherwise, the employee must file a grievance through the applicable administrative grievance system. For more information about challenging disciplinary or adverse actions, contact a Norfolk federal employment lawyer. 

6 Mistakes to Avoid

If you’ve received a notice of proposed disciplinary action as a government employee, you can protect your position by avoiding these mistakes: 

Assuming the Issue Will Work Itself Out 

Many employees may be shocked to receive a notice of disciplinary action and assume that the issue will work itself out if they just keep their heads down. Unfortunately, this course of action is misguided. If you receive a notice of a proposed disciplinary action, you can be assured that the agency intends to follow through with it. As we’ve established, federal employees have the right to respond. Staying silent can indicate that you agree with the proposed action, or at least do not dispute it. Instead of assuming the issue will work itself out, make a plan to respond — a Norfolk federal employment lawyer can help you. 

Missing Deadlines 

Deadlines for employees facing adverse actions (the more severe kind) are set by statute. That is not the case for employees facing disciplinary actions. While employees facing adverse actions are entitled to at least 30 days’ notice and seven days to respond, employees facing disciplinary actions are not entitled to a specific notice period and have only a “reasonable” time to respond, which can be as little as 24 hours. What that means in practice is that deadlines for disciplinary actions are typically shorter and non-standardized. If you receive a notice of disciplinary action, pay close attention to the deadlines stated in it and exercise diligence in meeting them. 

Not Seeking Legal Counsel 

One of the many perks of federal employment is enhanced job security compared to the private sector. One of the most important of those perks is the right to be represented by legal counsel during disciplinary proceedings. While lawyers cost money, they can also significantly increase your chances of making it through the disciplinary process with minimal damage to your career or long-term prospects. Failing to take advantage of that opportunity is a major mistake, and one you can avoid by working with a Norfolk federal employment lawyer. 

Talking to Coworkers About the Case

It’s natural to want to commiserate with coworkers when things go poorly at work. But while talking to coworkers might feel good in the moment, it can potentially harm your case. You never truly know what your coworkers think about you, and there’s a chance that a person you talk to could be involved in your disciplinary process as a witness. Assume that anything you say to coworkers could potentially be misinterpreted and reported back to management. 

Failing to Request Documentation 

Employees facing disciplinary actions are entitled to review the evidence upon which the agency relies in making its determinations. This is a critical resource for you to use in your defense. Without reviewing the evidence file, it will be much harder for you to mount an effective defense, as you won’t be able to refute each allegation point by point. As such, make sure you request a copy of the evidence against you and provide it to your attorney. 

Neglecting to Address the Douglas Factors 

The deciding official is required to consider both aggravating and mitigating factors before making their final determination. One way they do this is by considering the Douglas factors — a set of 12 criteria federal agencies use to evaluate the reasonableness of a proposed disciplinary penalty. While it’s not absolutely necessary to address the Douglas factors in your response, you should strongly consider doing so, as they provide a reliable framework for mounting an effective defense. 

Avoid Costly Mistakes With Help From a Norfolk Federal Employment Lawyer 

If you’re a federal employee facing disciplinary or adverse action, your best bet to emerge unscathed is to work with experienced legal counsel. To get started, please contact a Norfolk federal employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.