Defending Federal Employees in Disciplinary Cases

Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law.

Defending Thousands of Federal Employees Over the Past 25 Years in Disciplinary Cases

Approximately 20,000 federal employees are subject to disciplinary actions a year. Our nationwide federal employee lawyers represent federal employees in these disciplinary cases before their federal agencies. Each disciplinary action defense is unique and should be evaluated by attorneys familiar with federal employment law. 

The Disciplinary Process for Federal Employees

There are different types of disciplinary actions for federal employees. These vary and can include letters of counseling, reprimands, suspensions, demotions, and removals. For most serious disciplinary actions, referred to as adverse actions (usually removals), a federal employee first receives a notice of the proposed discipline and is given the opportunity to respond. A proposal will have an explanation of the conduct or issues leading to the proposed disciplinary action.  

If a federal employee is issued a notice of proposed disciplinary action, they will have the opportunity to contest it before it becomes final. Most permanent federal employees (past their probationary period) are entitled to significant due process rights. In responding, a federal employee can choose to provide a written response, an oral response, or both. We often recommend providing both oral and written responses.

Request Disciplinary Materials (Materials Relied Upon)

In most disciplinary cases, it is important for federal employees to request all of the materials that have been relied upon by the agency in proposing the discipline. Sometimes these are attached to the proposal, and other times they must be requested separately. We request these materials before responding on behalf of federal employees at the beginning of a case. These materials provide the basis for the proposed disciplinary action. 

Draft a Written Response

It is important to prepare a complete written response to the allegations in proposed disciplinary cases. These responses are typically 7 to 20 pages in length, depending on the underlying facts and number of charges and specifications. Most written responses are typically due anywhere from 7 to 30 days after a proposal is provided to a federal employee. The written response will address the alleged charges of misconduct or performance and any relevant mitigating factors (also known as the Douglas factors). In our responses, we also provide available evidence that contradicts the charges. Additionally, we attach declarations, affidavits, good performance records, character support letters, and other helpful exhibits.

Presenting the Oral Response 

The oral response portion of a federal employee’s response can be very important. While written responses can be critical in refuting specific allegations, there is something very important about personally meeting with a Deciding Official that is making the decision. We think that in serious cases, oral responses can make a significant difference in outcomes. We represent federal employees during oral responses. Typically, during an oral response, the federal employee, their attorney, and the Deciding Official (often with their counsel) will be present. The attorney and federal employee will get a chance to argue against the disciplinary action directly to the decisionmaker. After the oral response, there is usually a few weeks to a few months until a decision is made on the proposed discipline. During that time, there is also the possibility that attorneys from both sides can resolve the discipline through settlement.

Appeals from Adverse Disciplinary Decisions

If an unjust disciplinary decision is sustained by a federal agency, there are various options for federal employees to appeal further. If serious enough, an individual can appeal to the Merit Systems Protection Board (MSPB). Other potential appeals can include filing Equal Employment Opportunity complaints or whistleblower appeals, where applicable. There are also a number of other types of appeals that may be brought, but legal advice is important when making such decisions.

Conclusion

When a federal employee receives or anticipates a proposed disciplinary action, it is important to have an attorney represent or advise them from the beginning.  Our lawyers represent federal employees nationwide in all types of federal employee discipline. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

Our law firm represents federal employees in the grievance process. Most, if not all federal agencies have their own federal employee grievance procedures for employees who wish to bring employment disputes forward for resolution. 

Why Federal Employees Use the Grievance Process

Generally, federal employees utilize a federal agency’s grievance process when other legal options do not fit. For example, a federal employee may decide to file an administrative grievance if their employment dispute does not qualify for an Equal Employment Opportunity (EEO) complaint, the appeals process at the Merit Systems Protection Board (MSPB) or before other forums. 

Types of Federal Employee Grievances

There are usually two types of federal employee grievances: (1) union grievances; and (2) individual administrative grievances. Typically, federal employees who are not eligible for the union grievance process use the administrative grievance process. Those federal employees represented by a labor union may be required to go through the union grievance process.

What do Administrative Grievances Cover?

Administrative grievances filed by federal employees involve various types of employment disputes. For example, an administrative grievance can involve a challenge to a disciplinary action (example: Letter of Warning, Suspension), a performance action, a re-assignment or other employment issue. There are numerous types of disputes eligible for the administrative grievance process for federal employees.  

The Administrative Grievance Process

When considering filing an administrative grievance it is important to review the applicable administrative grievance process for your federal agency. Attached is a sample agency policy here. Every federal agency has its own administrative grievance procedures. Many administrative grievance policies require that a federal employee notify a supervisor verbally of the administrative grievance prior to filing a written grievance. Other policies require that a written grievance be submitted first.  

Depending on the federal agency, an administrative grievance process typically consists of 2-4 steps. Usually, at each step, the federal employee and a grievance official will attempt to resolve the grievance. Often the written grievance is submitted first and a secondary in-person meeting  is then held to present the administrative grievance. Usually, at the end of a grievance presentation the federal employee, often through counsel, will present a compromise resolution proposal. Following the administrative grievance presentation, the employee or counsel will receive a written decision on the grievance. If an initial administrative grievance is denied, then the federal employee will often have the ability to proceed to the next higher step of the process.  

Following the Grievance Process

If an administrative grievance is denied, some federal agencies provide additional rights for review and others do not. There are some federal agencies that offer federal employees a hearing process for administrative grievances and many others that do not. It is important to understand how the applicable administrative grievance procedure works for a particular federal agency prior to starting the process.

Conclusion

When a federal employee is considering filing an administrative grievance, it is important to have an attorney represent or advise you. Our law firm represents federal employees in the administrative grievance process. If you are a federal employee in need of legal representation please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook and Twitter.

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Our law firm represents Virginia state employees in their employment grievances filed against their individual state agencies.  Virginia has adopted an employee grievance procedure for Virginia employees to resolve their employment issues.  The Virginia Grievance Procedure has a number of steps in this process.  The grievance process is administered by the Virginia Department of Human Resource Management, Division of Employment Dispute Resolution (EDR).

Starting the Grievance Process

The first step in the grievance procedure for a Virginia state employee is to prepare a written grievance over the employment problem at issue.  The employee involved must usually file a written grievance within 30 days of the date that an employee knew or should have known about the issue being grieved. This is very important. If a grievance is not filed in a timely manner, the grievance will likely be dismissed. The grievance must be submitted on what is known as Grievance Form A. If there is not enough space on Grievance Form A, attachments may be used in filing the grievance.  The first step of the grievance process is generally filed with the employee’s immediate supervisor.

The Grievance Procedure Steps

The grievance process, once initiated, generally goes through 3 separate steps in Virginia.  First, there is a First Step grievance conducted by the employee’s immediate supervisor.  If the matter is unresolved, it may proceed to a Second Resolution Step Meeting.  As opposed to the First Step, a meeting is required during the Second Step.  The Second Step is usually considered a fact finding session.  If the Second Step does not resolve the grievance, the employee may then take their grievance to the Third Step.  If the Third Step does not resolve the grievance and an employee wishes to take their grievance forward, he or she must then ask that their grievance certified for a hearing by the agency head.

In some cases, where a grievance involves a demotion, suspension without pay or any other action that results in an actual loss of wages, the employee may be able to elect the Expedited Process for grievance review.  This Expedited Process generally starts at the Second Step procedures and is reduced to a single step.  Dismissals due to formal discipline or unsatisfactory job performance usually will not go through the grievance steps, but rather proceed to the Grievance Hearing Process.

The Grievance Hearing Process

Grievances not resolved in the grievance process may or may not next move to the Grievance Hearing Process.  Please note that not all grievances are eligible for a grievance hearing.  Cases involving formal disciplinary (a written notice) actions and dismissals for unsatisfactory performance usually qualify for the hearing stage.  Other types of grievances involving adverse employment actions may also qualify for a hearing.  These can include: (1) unfair application of state/agency policies; (2) discrimination; (3) arbitrary or capricious performance evaluation; (4) retaliation for participation in the grievance process; and (5) other types of informal discipline (i.e. transfers, assignments, demotions and suspensions that are not accompanied by a formal notice by taken for disciplinary reasons).  If a grievance is deemed by an agency head not
to be eligible for a hearing, the employee may appeal that decision to EDR.

The Grievance Hearing Process consists of the appointment of a Hearing Officer, a pre-hearing conference and the formal hearing, in addition to other procedures.  During the hearing, documents will be introduced as exhibits and witnesses will be examined and cross-examined. If the grievance involves a disciplinary matter, then a state agency must prove their case by a preponderance (51%) of the evidence presented.  Following the hearing, the Hearing Officer will provide a decision in writing.  The Hearing Officer may uphold or deny the grievance.

Court Review

If the Hearing Officer rules against a party, that party can then appeal the adverse decision to the EDR or to the Virginia Department of Human Resources Management (DHRM), depending on the issue to be appealed before it is considered final.  Once the hearing decision becomes final, a party can then appeal an adverse determination to Circuit Court and from there to the Court of Appeals.  A petition can also be filed requiring implementation of the final hearing decision.

Conclusion

When a Virginia state employee files an employment grievance, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in in their state employment grievances. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process.

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