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Help for Federal Employees Facing a Proposed Removal

The federal government is one of this country’s largest employers, with many of its jobs located in the Maryland, Virginia, and Washington, D.C. region. A career in public service can be very rewarding, with several things that differentiate it from a job in the private sector.

One of these differences exists with the process of removing or terminating, a federal employee. It’s usually a more complicated and involved process compared to getting fired by a company or other private employer. That’s why it’s helpful to talk to a federal employment lawyer if you ever find yourself facing a proposed removal.

The following is a very general overview of the removal process for federal employees. There are many nuances and details that will not be addressed here. However, any federal employment lawyer at the Law Firm of J.W. Stafford will be more than happy to assist you through this complicated and difficult process if you’d like to learn more.

Removal During the Probationary Period

The probationary period of employment often lasts one year. During this time, a federal employee can lose his or her job for any reason as long as it’s not an illegal reason, such as unlawful discrimination or retaliation. Most of the time, there will be three possible reasons for removal.

The first is when there is a pre-employment issue. An example might include a problem found during the background check. Here, the employee is given advanced notice of the reason for removal and has an opportunity to explain what happened.

Unacceptable performance and improper conduct are the second and third possible reasons for a probationary firing. In this situation, the employee receives no advanced notice, but the employee will get a written statement explaining the reason for the firing.

What Constitutes “Unacceptable Performance” for Federal Employment Purposes?

The federal government must take several steps before terminating an employee based on “unacceptable performance.” Before moving forward with a proposed removal, the government must be able to prove that:

  • It has adopted a performance appraisal system approved by the U.S. Office of Personnel Management (OPM);
  • Its performance appraisal system complies with 5 U.S.C. Section 4302;
  • It has communicated its performance appraisal system to the employee facing removal;
  • It warned the employee of the inadequacies of his or her performance during the appraisal period and provided a reasonable opportunity to improve; and,
  • Following this reasonable opportunity, the employee’s performance remained unacceptable in at least one “critical element.”

In general, the opportunity to improve is provided in the form of a performance improvement plan (PIP). To be valid, a PIP must specify (i) what specific performance has been deemed unacceptable and (ii) what standard the employee must achieve to perform acceptably. The government must offer assistance while a PIP is in place, and it must have “substantial evidence” that an employee has failed to adequately improve his or her performance to move forward with the employee’s proposed removal.

What Constitutes “Improper Conduct” for Federal Employment Purposes?

Even if a federal employee’s performance is acceptable, the employee can still face proposed removal for “improper conduct.” Examples of improper conduct that can lead to termination include:

  • Absence without official leave (AWOL)
  • Engaging in criminal activity or other prohibited conduct (i.e., discrimination or harassment)
  • Failure to follow instructions
  • Failure to follow leave requesting procedures
  • Falsification (defined as “knowingly providing wrong information with the intention of defrauding, deceiving, or misleading [an] agency”)
  • Insubordination (defined as “willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed”)
  • Lack of candor
  • Misuse of government property

Importantly, off-duty misconduct can trigger a federal employee’s proposed removal in some cases. This can happen if the off-duty misconduct: (i) is “egregious,” (ii) adversely affects the employee’s job performance or the agency’s “trust and confidence” in the employee’s job performance, (iii) adversely affects co-workers’ job performance, or (iv) interferes with or adversely affects the agency’s mission. As with most other proposed removals, the burden is on the government to prove that an employee’s off-duty misconduct warrants termination.

Regardless of the basis for the firing, there may be limited appeal rights with the Merit Systems Protection Board or MSPB. Additionally, if the employee feels they were the victim of discrimination or a prohibited workplace practice, they can seek a remedy with the Equal Employment Opportunity Commission or the U.S. Office of Special Counsel, respectively.

Removal Once the Probationary Period Is Over

If a non-probationary federal employee must be removed, it will usually be for performance-based reasons, misconduct, or a combination of both. There are two primary sets of laws and regulations that dictate how the removal process will take place:

• Chapter 43 of Title 5 of the U.S.C. and its regulations, 5 CFR part 432
• Chapter 75 of Title 5 of the U.S.C. and its regulations, 5 CFR part 752

When the termination is the result of poor performance, misconduct or both, either of the above laws and regulations may apply.

If the proposed removal is due to performance reasons, the process will often be subject to Chapter 42 of Title 5 and there will usually be a Performance Improvement Plan (PIP). If the PIP does not work, the following are the steps that must take place to remove a federal employee:

1. The employee must be given notice of the proposed removal at least 30 calendar days before the date of removal. This notice must provide details as to the reason and legal basis for the firing.
2. The employee will have an opportunity to review the evidence in support of his or her removal.
3. If requested, the employee may have representation from an attorney, union officer or appropriate individual as permitted by the relevant regulations.
4. The employee will have the opportunity to provide a response and submit evidence in his or her defense.
5. The appropriate deciding official will make a decision and if it calls for removal, the employee will be provided an explanation of their appeal or grievance rights.

If the proposed removal is for misconduct, the following steps will occur before the removal can take place:

1. The employee will receive written notice of the proposed removal at least 30 calendars days before they are to be fired. The reasons for the removal will be provided in this notice.
2. The employee will have at least seven days to provide a written or oral response to the notice of proposed removal. This includes the submission of medical documentation, if applicable.
3. The employee can have an attorney or union official serve as a representative.
4. The deciding official must take into consideration any mitigating factors when rendering a decision.
5. The employee will learn of any grievance or appeals rights when they receive a decision from the deciding official.

If it’s decided to remove the employee, the employee will usually have the right to appeal the decision to the MSPB.

Please note that the above overview applies to most, but not all federal employees. For example, Senior Executive Service (SES) federal employees will have a modified removal process.

Have You Received a Notice of Proposed Removal?

If you have received a notice of proposed removal as a federal employee, it will be important for you to speak with a lawyer promptly. While you are entitled to due process – and while the burden is on the government to prove that it has valid justification for terminating your employment – you will still need to fight to protect your job.

An attorney who is experienced in representing federal employees will be able to prepare an appropriate response to your notice and deal with the government on your behalf. If the government ends up removing you from your position, your attorney will be able to use your response (among other evidence) to file an appeal with the MSPB.

Contact Us Today if You're a Federal Employee Facing a Proposed Removal 

If you have additional questions about the removal process for federal employees contact a lawyer at the Law Firm of J.W. Stafford. Call (410) 514-6099 today. We help federal employees nationwide, including North Carolina, South Carolina, New Jersey, Washington DC, Virginia, and Maryland