Dealing with Employees' Misconduct

How Do I Deal with an Employee's Misconduct?

Typical Scenarios:   
  • An employee disrupts the office with aggressiveness and abusive behavior, affecting the morale and performance of others;
  • An employee is insubordinate, refusing to follow direct orders; or
  • An employee has a leave abuse problem or other time and attendance problem.

Principle:

An employee may be disciplined for conduct which adversely affects the efficiency of the service. Keep in mind that the goal of any discipline is to correct the misconduct and modify the behavior, rather than to punish the employee.     

Where Do I Start?

As a manager, you play the primary role in making the case for taking disciplinary action against an employee. However, you are not alone in the process. The Employee and Labor Relations Branch (ELRB) is available for information, advice, and support. Take advantage of their services. If the situation involves apparent misconduct, the first question to ask is whether any discipline is appropriate; this is, whether any level of disciplinary action may be supported by sufficient facts to pass muster as justifiable discipline before an outside party. The key factors such a party will consider include the following: 

  • Do the facts establish the employee did - or failed to do - the things claimed? If not, discipline will not stand, since the employee is presumed innocent unless proven "guilty."
  • Did the employee's behavior, if proven, violate an established rule, regulation, or requirement? If not, any disciplinary action is doomed to reversal on review.
  • Did the employee know - or should have known - of the rule, regulation, or requirement? If the rules have not been adequately communicated to employees, the employee cannot be held accountable for compliance with them.
  • Has the rule been enforced consistently? If not, discipline against an employee is likely to be considered arbitrary or discriminatory by a third party, regardless of how well the case is proven. 

Gather as much information as is readily available and contact your Employee Relations (ER) Specialist in the Human Resources Office.

Rules and Flexibilities:

Disciplinary actions (e.g. suspensions and removals) are governed by the due process requirements of 5 U.S.C. Chapter 75 and the case law of the Merit Systems Protections Board (MSPB) and the Federal Courts. An employee serving a probationary period (usually the first year of Federal employment) who engages in inappropriate conduct can be removed with a minimum of formal procedure. You should consult with your ER Specialist about the procedures applicable to probationary employees.

Basic Steps:     

  • Penalties for misconduct range from admonishments/warnings (oral or written), to reprimands (oral or written), short suspensions (14 calendar days or less), long suspensions (more than 14 calendar days), demotions or removal. Several factors come into play in determining an appropriate penalty. Included among them are the basic concepts of corrective, progressive discipline. That is, penalties must be selected with an eye to applying the minimum discipline likely to be necessary to correct the offense. Second, you must also consider fairness and consistency. Penalties should be reasonably consistent with the discipline effected in similar situations against employees with similar records. This means that you carefully weigh a number of things in determining how severe a disciplinary penalty should be, including: nature and severity of the offense; the employee's previous record; the employee's potential for rehabilitation; penalties imposed on other employees in similar situations; and penalty guidelines. Your ER Specialist will help you decide what penalty is appropriate.
  • Oral actions and informal memoranda/letters can be given without undue formality. For more serious proposed penalties, issue a memorandum notifying the employee of the discipline you are proposing and the incident(s) upon which it is based. Your ER Specialist can provide further advice. Before taking any action, contact your ER Specialist who will help you navigate the rules and regulations, include the Collective Bargaining Unit Agreement with any applicable union locals.
  • In formal actions (e.g., suspensions, demotions, and removals), the employee has the right to respond to the proposed discipline by providing an oral and/or written reply with reasons why the adverse action should not occur. Employees also have the right to review any information used to support the proposed action.
  • A higher level official must issue a written decision on suspensions, demotions, and removals.
  • Disciplinary actions can be grieved through the applicable administrative or negotiated grievance process. The employee may appeal suspensions of more than 14 days, demotions, and removals to the MSPB. An employee may also file an EEO complaint challenging any type of disciplinary action, if unlawful discrimination is alleged. Alternatively, an employee may request mediation through the Alternative Dispute Resolution program.

Forms Needed:

No forms are needed, but your ER Specialist should be consulted for guidance on what should be contained in any memoranda you will issue.     

Time Frames:

A disciplinary action should be taken promptly after an instance of misconduct occurs. Contact your ER Specialist for appropriate time frames.      

Good Management Practices:    

  • Maintain documentation of any misconduct that occurred and the negative impact it had on the employee's work or that of other employees.
  • Be fair to the employee. Consider his or her side of the story and any evidence submitted.
  • Always contact your Employee Relations Specialist before action.

Checklist:    

  • Gather documentation.
  • Issue prompt disciplinary proposal to employee.
  • Allow time for employee's response.
  • Be fair.
  • Obtain decision by appropriate management level.
  • Contact your Employee Relations Specialist.

A NOTE ON SES . . . 

  • The statutory standard for action is different for career SES employees than for other employees. Whereas other employees may be removed "for such cause as would promote the efficiency of the service," the standard for SES is "misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function."
  • In certain instances, career SES employees who are serving probationary periods may be removed with as little as a one day written notice, depending upon the type of appointment they held before entering the SES. You will need to consult with your servicing human resources specialist to determine which procedures apply in your case.
  • A letter of reprimand is an option for the SES. Suspensions of 14 days or less are not an option for the SES. The minimum period of suspension for career SES employees is 15 calendar days.
  • There is also no provision for "downgrading" an employee from the SES based on misconduct. Career SES employees who are removed for misconduct are removed from Federal service, and have no "fallback" to a GS-15 position.