Many federal employees find it necessary to enter a period of leave without pay (LWOP) and/or accept Workers’ Compensation benefits from OWCP to recover from a partial or total temporary disability that resulted from an on the job injury. But what happens after the employee has fully recovered from that temporary disability?

Employees who have fully recovered from disability and can perform the duties of their prior position may have what are called “restoration rights”. That is, a [...]

One very serious situation for Federal employees are allegations that the employee misused a government credit card.

The scenario that commonly arises usually involve a government credit card or travel card holder who makes a purchase which is not authorized. Most commonly, this type of discipline involves employees who allegedly purchase a personal item using their government credit card. Other times, it involves charges on a card or cash advances that exceed the pre-travel estimation.

In any of [...]

If an Agency places an employee on indefinite enforced leave, the Merit Systems Protection Board (MSPB) may have jurisdiction to review this action.

Typically, an Agency will place an employee on enforced leave, pending the results of a voluntary or involuntary application for medical/disability retirement, or in other scenarios where the Agency has questions (legitimate or not) about an employee’s medical inability to perform the essential functions of the job.

An Agency may place an employee on enforced leave pending inquiry to [...]

The MSPB hears claims involving improper calculations of a federal employee’s military leave. Each year, federal employees who serve in the National Guard or reserves are required to participate in annual training. By Federal statute, those employees are to be given up to 15 days of paid leave each year to attend that training.

Until around 2000, the Office of Personnel Management interpreted that rule in such a way that they offered only 15 calendar days of leave [...]

When an Agency charges an employee with failure to follow instructions, they are required to prove certain facts:

An instruction or order was issued;
The Agency was entitled to have the instruction followed; and,
The employee did not follow the instruction.

It is important that the instruction to the employee be clear – enough to put the employee on notice that some action or inaction is required of them. For this reason, when the instruction is issued in writing (memo, letter, e-mail, [...]

Not every employee can appeal an adverse action to the MSPB. Here is a brief list of who can make an appeal to the MSPB:

Competitive Service employees who have completed a 1-year probationary or trial period;
Veterans preference-eligible employees with at least one year of continuous employment in the same or similar positions outside the competitive service;
Postal Service supervisors, and some employees engaged in personnel work, who have completed one year of current continuous service in the same or similar [...]

To establish the elements of a performance-based removal action, the Agency again has the Burden of Proof. That is, the Agency must prove the elements of the removal – however, the burden is much lower than in misconduct cases.

In a performance case, the Agency must only prove their case by “substantial evidence”. This is the lowest burden of proof in the legal system. Essentially, it means that amount of evidence that a reasonable person would find necessary [...]

In MSPB Appeals, the Appellant (employee) can assert “harmful error” as a defense to an Agency adverse action. Harmful error can be a difficult concept, even for many attorneys. Here is what it is, in layman’s terms.

First – a little background. Because Federal Employees are employed by the United States Government, they typically have a “property interest”, protected by the U.S. Constitution, in their continued employment. Thus, while private sector employees can often be fired for [...]

For attorneys and pro-se appellants, understanding the MSPB Appeal Process can be a bit daunting. Here’s the various stages of your appeal, beginning with the Adverse Action Proposal Letter and continuing through an Appeal to the Full Board.

Proposal Letter: This is the most crucial document in the entire process – it proposes the action that the Agency wants to take. The letter should indicate that you may issue an oral/written reply, that you have a right to representation, and that [...]

A question folks frequently ask when contacting my Firm is an explanation of the difference between a “disciplinary action” or an “adverse action”.

A “Disciplinary Action” is a suspension of 14 days or less, written letter of reprimand, or oral counseling. Aside from truly egregious misconduct, an Ageny will usually propose a disciplinary action before taking more serious steps. Disciplinary actions lay the groundwork for Agencies to successfully take an adverse action. In most Agencies, bargaining [...]