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.
The 2019 primaries and 2020 national elections are approaching soon. Our law firm often represents and defends federal employees in Hatch Act violation cases. The Hatch Act was meant to curtail partisan political involvement for federal employees. There are certain restrictions that prohibit certain political conduct, both on-duty and off-duty. As these elections approach, this article is meant to help federal employees avoid the problems of committing potential Hatch Act violations.
What is the Hatch Act?
The Hatch Act was first proposed by Senator Carl Hatch of New Mexico and enacted in 1939 prohibiting certain types of political participation by federal employees. This can vary between types of federal employees. For most federal employees, however, the rules are similar. Federal employees may not seek public office in partisan elections, use their official titles or authority when engaging in political activities, solicit or receive contributions for partisan political candidates or groups, and/or engage in political activity while on duty. Even some non-partisan elections can give rise to Hatch Act violations by federal employees if a candidate is sufficiently backed by a particular party.
Office of Special Counsel Enforcement for Hatch Act Violations
For most federal employees, the Hatch Act is enforced by the Office of Special Counsel (OSC). The OSC has the ability to seek disciplinary action against federal employees if violations are uncovered. Typically, violations are investigated following a complaint being filed with the OSC. Federal employees can potentially be disciplined or terminated for violations of the Hatch Act. Generally, the OSC will first conduct a detailed investigation into the allegations and then if violations are found they may then seek to negotiate a resolution with the alleged offender.
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In other cases, the OSC may file inform the individual that they are simply moving ahead with a disciplinary action filing with the Merit Systems Protection Board (MSPB) against the employee (usually seeking removal) and ask an MSPB administrative judge to take action against the federal employee for at the violations.
General Hatch Act Tips for Federal Employees
Federal employees are encouraged to seek advice before engaging in political activities. There are many types of federal employees and some are more restricted than others. Here are 8 simple tips for federal employees seeking to avoid potential Hatch Act violations:
1. Don’t run for office in a partisan political election;
2. Avoid partisan political discussions while in the federal workplace or while performing work;
3. Don’t try to raise funds for partisan political candidates in the workplace (even passing along website links for candidates to co-workers);
4. Don’t post political opinion or discussion during work hours on social media;
5. Don’t donate to a political campaign during work hours;
6. Don’t bring political campaign signs or buttons into the federal workplace;
7. Don’t use government resources (email, internet) to engage in partisan politics; and
8. Don’t use your government title or affiliation to endorse a political candidate.
Federal employees can usually still participate in many political activities, but doing so at work can be a violation of the Hatch Act. Federal employees can sometimes be candidates for non-partisan elections, assist in voter registration drives, express political opinions, attend fundraisers, sign nominating petitions or hold office in political parties.
For further information on potential Hatch Act violations, please see the information offered by the OSC. While it is doubtful that brief discussions about politics in the federal workplace would trigger an OSC investigation, the potential risk is there. The safest course for federal employees is to simply avoid partisan politics in the workplace and save them for off-duty.
Conclusion
If you need assistance with Hatch Act defense or other federal employment law issues, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
