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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 *Adverse Actions: A Primer in Pieces*
	**These articles were written for a report submitted to Congress in 2016. Some aspects of the law may have changed in the intervening years. Readers are strongly encouraged to consult updated statutes, regulations, and case law.**
By statute, in addition to its adjudication  responsibilities, the U.S. Merit Systems Protection Board (MSPB) is responsible  for conducting studies of the civil service “from time to time.”  We are expected to use our expertise and  judgment to determine what issues are suitable topics in light of our limited  resources and the work already being done by others (*e.g.,* Government Accountability Office, academia, non-profit  organizations).  Every few years, when  crafting a new research agenda, we ask stakeholders and the public what they  would like to see us study.  At the September  2014 Sunshine Act meeting for our last agenda, several speakers asked that we  issue an explanation of how the adverse action process works.  After considering that input, along with  recent Congressional interest in the matter, and with what we felt we could  contribute given our statutory responsibilities, the Board approved the  inclusion of this project in our published research agenda.
However, once we began assembling the content,  it became evident that a brief, single report might not be the best way to  present that information.  Simply stated,  such a report could not be “brief.”   There were too many different audiences who would have different uses  for the information and presenting the information in a way that could be used  by all resulted in the sort of lengthy document that often makes confusing  topics even more confusing.
Instead, we decided upon a new approach.  Frequently, an MSPB studies report tries to  tell each reader an entire story.  For  this project, we decided to tell many different readers their piece of the  story.  For instance, a proposing  official may find that he or she is more interested in an article describing decisions  that proposing officials must make, than in articles about what might happen  after the action leaves that official’s control.  Conversely, a deciding official may want to  focus on articles addressing his or her own responsibilities.  Agency leaders, on the other hand, may find  particularly helpful the sections that address agency culture, holding managers  responsible, or ensuring actions do not result from the commission of  prohibited personnel practices (PPPs) (as the statute assigns to leaders the  responsibility for the prevention of PPPs).   A member of Congress considering new legislation may be interested in  articles covering which parts of the disciplinary process are based on  constitutional law (and thus are hard to change), which parts of the process  come from statute (and thus are most within the power of Congress), which parts  of the process are regulatory (and thus are within the power of the Office of  Personnel Management), and which parts of the process have been added by  agencies (and thus are more likely to respond to agency action than to new  legislation).  Employees may be  especially interested in articles discussing their rights and how to exercise those  rights.  Finally, academicians, the  media, unions, and others each may find different articles more interesting or  relevant based on their particular interests.
So, instead of a single, comprehensive report,  we have drafted a series of articles.   Think of it as an all-you-can-eat buffet that is always open and always  free.  You can come back to the server  any time you like, select which dishes you are in the mood to ingest, and leave  as much or as little on the plate as you like.   This format will allow you to:   (1) print out your own copies to mark up and take notes; (2) bookmark  parts you will want to read again; (3) e-mail weblinks to others you think might  be interested; (4) send an article to your human resources (HR) advisor with  questions or comments connected to a situation you are facing; and (5) focus on  specific education modules appropriate for your workforce.  The material is designed to be bite-sized and  suitable for different tastes, and MSPB encourages you to add your own  seasonings afterward.  Read one article,  a group of articles, or read them all.  Simply  put, please use this material in the manner most helpful to you.
Of course, as a quasi-judical Federal agency,  we are compelled to add a bit of fine print.   This report addresses the system for the competitive and excepted  services.  The Senior Executive Service  (SES) follows a slightly different process.   (For more on the SES system, see our 2015 report, *What is Due Process in Federal Civil Service Employment.*)   Additionally, under 5 U.S.C. § 1204(h), we are prohibited from  issuing advisory opinions.  This means we  can tell you, the reader, things that MSPB or a court have already decided, but  cannot tell you what we or the courts might do with a set of facts that have  not yet been presented for adjudication.   These articles are product of MSPB’s studies function, they are not  adjudication decisions to be directly cited.   If a section is relevant to a matter you are facing, please look at the  cases and statutes being cited and work directly from those sources.  Additionally, these articles are not a  substitute for legal advice or advice from your HR staff, but they can help  inform those conversations.


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