Different Types of Adverse Actions Use Different Rules
Removals, demotions, and suspensions of Federal employees are “adverse actions.”1 A removal action terminates the employment of an individual. A demotion action is also known as a reduction in grade or a reduction in pay.2 While removals, demotions, and suspensions can occur under chapter 75 of title 5 of the U.S. Code, removals and reductions in grade may also be implemented under chapter 43.3 The agency chooses which law to use for the circumstances before it, and then must comply with the conditions for acting under that particular law. For more on the differences between using chapter 75 versus chapter 43, see our article titled, Performance-Based Actions under Chapters 43 and 75 of Title 5 – Similarities and Differences.
A suspension is the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay.4 It is important to note that the word “disciplinary” has a broader definition in law than in common use. For example, as explained in the section below discussing indefinite suspensions, a suspension does not have to occur “for the purpose of punishment,” although it does need to have a valid purpose that advances the efficiency of the service.5 Unlike removals and reductions in grade, a suspension can only be taken under chapter 75 and not chapter 43. There are different types of suspensions and the standards or procedures for each may differ.
Suspensions of 14 days or less:
When an agency seeks to suspend an employee for 14 days or less the employee has certain rights, some of which are provided by statute and some by Office of Personnel Management (OPM) regulation.
- By statute, the employee is entitled to “an advance written notice stating the specific reasons for the proposed action[.]” OPM’s regulation adds that the employee will also be told of his or her right to review the material that the agency is relying upon.
- By statute, the employee is entitled to “a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer[.]” OPM’s regulation adds that this period to reply cannot be less than 24 hours.
- By statute, the employee is entitled to “be represented by an attorney or other representative[.]” OPM’s regulation adds that the representative cannot have a conflict of interest or be an employee who is needed for “priority work assignments[.]”
- By statute, the employee is entitled to “a written decision and the specific reasons therefor at the earliest practicable date.” OPM’s regulation adds that the employee also must be notified of any grievance rights.6
Neither the statute nor OPM regulations specifically state the standard of proof to be used in such suspensions.7 However, agency policies or collective bargaining agreements (CBAs) may address matters on which the statute and OPM regulations are silent (such as the standard of proof) or add additional employee protections.
Suspensions of more than 14 days:
When an agency seeks to suspend an employee for more than 14 days, the employee again has certain rights, some of which are provided by statute and some by OPM regulation.
- By statute, the employee is entitled to “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[.]” OPM’s regulation adds that, “under ordinary circumstances, an employee whose removal or suspension, including indefinite suspension, has been proposed will remain in a duty status in his or her regular position during the advance notice period.”8
- By statute, the employee is entitled to a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer[.]” OPM’s regulation adds that, if the employee is still working, the “agency must give the employee a reasonable amount of official time to review the material relied on to support its proposed action, to prepare an answer orally and in writing, and to secure affidavits[.]”
- By statute, as with shorter suspensions, the employee is entitled to “be represented by an attorney or other representative[.]” OPM’s regulation adds that, as with shorter suspensions, the representative cannot have a conflict of interest or be an employee who is needed for “priority work assignments[.]”
By statute, as with shorter suspensions, the employee is entitled to “a written decision and the specific reasons therefor at the earliest practicable date.” Similar to the provision for shorter suspensions, OPM’s regulation adds that the employee also must be notified of any appeal or grievance rights.9
An indefinite suspension means placing an employee in a temporary status without duties and pay for an indeterminate period of time. To sustain an indefinite suspension, the agency must show that: (1) it imposed the suspension for an authorized reason; (2) the suspension has an ascertainable end (an event that will trigger the conclusion of the suspension); (3) the suspension bears a relationship (nexus) to the efficiency of the service; and (4) the penalty is reasonable.10
The Board, and its reviewing court, have approved the use of indefinite suspensions in three limited circumstances:
- When the agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed – pending the outcome of the criminal proceeding or any subsequent agency action following the conclusion of the criminal process.
- When the agency has legitimate concerns that an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate – pending a determination that the employee is fit for duty.
- When an employee’s access to classified information has been suspended and the employee must have such access to perform his job – pending a final determination on the employee’s access to classified information.11
For more on suspensions based upon reasonable cause to believe that an employee has committed crime for which he or she may be imprisoned, see our special topic issue, Indefinite Suspensions and Potentially Criminal Behavior: Using Reasonable Cause to Act.
When an indefinite suspension lasts for more than 14 days, it becomes subject to the same procedural requirements as other suspensions of more than 14 days (see above).12
Constitutional Due Process Issues and Harmful Procedural Errors:
In addition to the protections provided by statute and regulations, Federal employees have constitutional due process rights regarding adverse actions.13 However, it is difficult to set forth any hard-and-fast rule about the form those rights will take and at what point in the process they must occur because the U.S. Supreme Court has explained that “due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands.”14 In other words, what is due depends on the circumstances of the case.
An agency also must comply with its own regulations and procedures.15 As explained in our article, Agency Officials’ Substantive and Procedural Errors and How to Fix Them, an error regarding a substantive right (such as the right to respond to a proposed action and have that response considered) results in a cancelation of the action while a less substantive error (such as violation of an agency procedure) would be examined to see if the violation affected the agency’s decision to implement the action.
1 A furlough of 30 days or less (which typically occurs for budgetary reasons) is also conducted under the rules for adverse actions. However, a longer furlough, removal due to a reduction in force (RIF), or demotion due to a RIF is not an “adverse action” and is conducted under the rules set forth in 5 C.F.R. part 351. Salo v. Department of Defense, 122 M.S.P.R. 417, ¶ 6 (2015) (explaining the difference in rules for furloughs and removals); 5 U.S.C. § 7512 (explaining that a RIF is not considered an adverse action).
2 Title 5 of the U.S. Code distinguishes between a reduction in grade and a reduction in pay, while stating that both are adverse actions. Fouks v. Department of Veterans Affairs, 122 M.S.P.R. 483, ¶ 7 (2015); see 5 U.S.C. § 7512.
3 Compare 5 U.S.C. § 4303(a) (authorizing agencies to impose removals and reductions in grade for unacceptable performance) with 5 U.S.C. § 7502 (authorizing agencies to impose suspensions for 14 days or less) and 5 U.S.C. § 7512 (authorizing agencies to impose removals, suspensions of over 14 days, reductions in grade, and reductions in pay).
4 Tyndall v. Department of the Navy, 5 M.S.P.R. 194, 196 (1981).
5 Thomas v. General Services Administration, 756 F.2d 86, 88 (Fed. Cir. 1985).
6 5 U.S.C. § 7503; 5 C.F.R. § 752.203. A suspension of 14 days or less is generally not appealable to MSPB, but there are exceptions to this rule. For example, MSPB may have jurisdiction over claims that an otherwise unappealable suspension was taken in retaliation for whistleblowing activity or was a result of the employee’s performance of military service.
7 5 U.S.C. § 7503; 5 C.F.R. part 752.
8 5 U.S.C. § 7513; 5 C.F.R. § 752.404(b)(3). If the employee poses a threat to safety, the agency mission, or to Government property, agency options include, but are not limited to, assigning the employee to duties where he or she does not pose the same risk. Administrative leave may also be an option; however, both houses of the U.S. Congress have expressed interest in limiting the use of such leave to 14 days. See 114th Congress, S. 2450 and H.R. 4359.
9 5 U.S.C. § 7513; 5 C.F.R. § 752.404.
10 Hernandez v. Department of the Navy, 120 M.S.P.R. 14, ¶ 6 (2013).
11 Sanchez v. Department of Energy, 117 M.S.P.R. 155, ¶ 10 (2011); Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010). In Gonzalez, the Board explained that an agency cannot indefinitely suspend an employee merely because there is an administrative investigation into the employee’s conduct. Rather, the agency must establish that one of the three above criteria has been met. Id. at ¶¶ 23, 25, 28.
12 Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 13 (2010), aff’d, 451 F. App’x 947 (Fed. Cir. 2011); Harris v. Department of Treasury, 10 M.S.P.R. 581, 583 (1982).
13 McGriff v. Department of the Navy, 118 M.S.P.R. 89, ¶ 28 (2012) (explaining how the Board analyzed U.S. Supreme Court decisions to conclude that Federal employees have due process rights for suspension actions).
14 Gilbert v. Homar, 520 U.S. 924, 930-31 (1997) (internal punctuation and citations omitted). To determine due process in a suspension action, the Board will weigh three factors: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest. McGriff v. Department of the Navy, 118 M.S.P.R. 89, ¶ 27 (2012) (citing Gilbert v. Homar, 520 U.S. 924, 131-32 (1997)). For more on due process, see U.S. Merit Systems Protection Board, What is Due Process in Federal Employment? (2015), available at www.mspb.gov/studies/ .
15 McGriff v. Department of the Navy, 118 M.S.P.R. 89, ¶ 37 (2012).