Federal employees facing potential termination from their positions must navigate a complex process known as proposed removal from federal service. This procedure is designed to protect the rights of government workers while allowing agencies to address serious misconduct or performance issues. Understanding the steps involved and your rights as an employee is crucial if you find yourself in this situation.
What is a proposed removal from federal service?
A proposed removal is the formal process by which a federal agency initiates action to terminate an employee’s employment. This process involves several steps and provides the employee with opportunities to respond before a final decision is made.
The proposed removal process typically begins with counseling and a notice of proposed action when an agency determines that an employee’s conduct or performance warrants termination. This could be due to misconduct, poor performance, or other issues that significantly impact the employee’s ability to carry out their duties effectively.
Steps in the proposed removal process
Issuance of the proposal notice
The first step in the process is the issuance of a written notice of proposed removal. This document outlines the agency’s reasons for considering termination and informs the employee of their rights during the process.
Contents of the proposal notice
A proper notice of proposed removal should include:
- Specific reasons for the proposed action
- A detailed explanation of the evidence supporting the proposal
- Information about the employee’s right to review the evidence
- Instructions on how and when to respond to the notice
- The name of the deciding official who will make the final determination
These elements ensure that the employee is fully informed of the charges against them and can prepare an adequate response.
Employee’s right to respond
After receiving the notice, the employee has the right to respond both orally and in writing. This response is an opportunity to present arguments, evidence, and mitigating factors that may influence the agency’s decision. It’s crucial for employees to take full advantage of this opportunity, as it may be their best chance to prevent the proposed removal from becoming final.
Agency’s decision-making process
Following the employee’s response, a deciding official (usually someone different from the proposing official) will review all the information, including the employee’s response, and make a final decision. This process is designed to ensure impartiality and a fair consideration of all relevant factors.
Timelines and deadlines in the proposed removal process
Notice period
Non-probationary employees must be given at least 30 days’ advance written notice of the proposed removal, except in cases involving crime for which imprisonment may be imposed. This period allows the employee time to prepare their response and seek representation if desired.
Response period
Typically, employees are given at least 7 days to respond to the notice of proposed removal. However, this period may be extended if the employee provides a reasonable explanation for needing more time. It’s important for employees to act promptly and request an extension if necessary, as failing to respond within the given timeframe may result in a decision based solely on the agency’s evidence.
Decision-making period
There is no set timeline for the agency to make a final decision, but it generally occurs within a reasonable time after the employee’s response period ends. The length of this period can vary depending on the complexity of the case and the agency’s workload.
Employee rights during the proposed removal process
Right to representation
Employees have the right to be represented by an attorney or union representative throughout the process. Having skilled representation can significantly improve an employee’s chances of a favorable outcome, as these professionals are familiar with the intricacies of federal employment law and agency procedures.
Access to evidence
The agency must provide the employee with copies of all evidence relied upon to support the proposed removal. This right is crucial for preparing an effective defense, as it allows the employee to understand and potentially refute the agency’s case against them.
Opportunity to respond
As mentioned earlier, employees have the right to respond both orally and in writing to the proposed removal. This dual opportunity allows employees to present their case in the format they feel most comfortable with and to potentially clarify or expand on points made in their written response during an oral presentation.
Potential outcomes of the proposed removal process
The proposed removal process can result in several different outcomes, depending on the strength of the agency’s case and the effectiveness of the employee’s response:
- Removal: If the deciding official determines that the evidence supports termination, the employee will be removed from federal service.
- Demotion or reassignment: In some cases, the agency may decide that a less severe action, such as demotion or reassignment, is more appropriate.
- Lesser disciplinary action: The agency might opt for a lesser form of discipline, such as a suspension or written reprimand.
- No action taken: If the employee’s response successfully refutes the agency’s case, the proposed removal may be withdrawn, and no action taken.
Each of these outcomes can have significant implications for the employee’s career and future employment prospects, underscoring the importance of mounting a strong defense during the proposed removal process.
Appealing a removal decision
If an employee is ultimately removed, they may have the right to appeal the decision through various channels:
Merit Systems Protection Board (MSPB) appeals
Most federal employees can appeal their removal to the MSPB, an independent quasi-judicial agency that reviews federal personnel actions. The MSPB process involves a hearing before an administrative judge and can result in the reversal of the removal decision if the agency’s action is found to be improper. If you need assistance with this process, consider consulting an MSPB attorney.
Equal Employment Opportunity (EEO) complaints
If the employee believes the removal was based on discrimination, they may file an EEO complaint. This process involves an investigation by the agency’s EEO office and can potentially lead to a hearing before an EEOC administrative judge.
Negotiated grievance procedures for unionized employees
Employees covered by a collective bargaining agreement may have the option to file a grievance through their union. This process typically involves multiple steps, potentially culminating in binding arbitration.
Factors considered in proposed removal cases
When deciding whether to remove an employee, agencies typically consider:
- Nature and severity of the misconduct or performance issues
- Employee’s past record and length of service
- Consistency with the agency’s disciplinary practices
- Impact on agency operations and mission
These factors help ensure that the removal action is appropriate and proportionate to the employee’s conduct or performance issues.
Alternatives to removal
In some cases, agencies may consider alternatives to removal, such as:
Performance Improvement Plans (PIPs)
For performance-based issues, agencies often implement PIPs before proposing removal. These plans give employees a structured opportunity to improve their performance and avoid more severe disciplinary action.
Last Chance Agreements
These agreements allow employees to retain their jobs under specific conditions, usually involving improved performance or conduct. They can be an effective way to avoid removal while still addressing the agency’s concerns.
Voluntary resignation or retirement
Employees may choose to resign or retire rather than face removal proceedings. While this option can help preserve an employee’s future employment prospects, it’s important to carefully consider the implications before making such a decision.
Role of human resources and agency leadership
HR’s advisory role
Human Resources typically plays an advisory role, ensuring that proper procedures are followed and providing guidance to management. HR professionals can help ensure that the proposed removal process is conducted fairly and in compliance with applicable laws and regulations.
Deciding official’s responsibilities
The deciding official must impartially review all evidence and the employee’s response before making a final decision. This role is critical in ensuring that the removal process is fair and based on a thorough consideration of all relevant factors.
Higher-level review of removal decisions
Many agencies require higher-level review of removal decisions to ensure consistency and fairness. This additional layer of scrutiny can help prevent arbitrary or unjustified removals and maintain the integrity of the agency’s disciplinary process.
Do You Need Legal Help?
At The Law Office of Justin Schnitzer, we specialize in federal employment law services for federal employees across the country.
Whether you are facing disciplinary action, discrimination, retaliation, or other employment-related issues, our federal employment attorneys are here to provide the legal support and guidance you need. Contact us today or call 202-964-4878 to schedule your initial consultation and learn more about how we can help you with your federal employment law matter.
