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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *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.6Neither 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
    **Indefinite Suspensions:**
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.11For 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).


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