Federal employees uphold a high standard of professional behavior. The rules are clear cut and reputation is important. Therefore, a false accusation of conduct unbecoming a federal employee can be devastating. This non-specific charge can place a black mark on your spotless career, which is why it is important to immediately assess the situation and prepare a legal defense.

Conduct Unbecoming Charges for Federal Employees

Federal agencies must charge an employee with misconduct in order to take adverse action. There are many rules to abide by, and most federal employees work hard to maintain the high standard of behavior. However, “conduct unbecoming” charges are an umbrella accusation relating to any undesirable behavior that is not covered by a specific rule.

Unfortunately, this charge is not always used as intended. It has been used as a tool for discrimination, personal grudges, and in response to unsubstantiated accusations.

If you have been charged with conduct unbecoming, acting swiftly with the help of an experienced (Merit Systems Protection Board) MSPB lawyer can help you save your record, reputation, and future career.

How can an MSPB Lawyer Defend You Against a Conduct Unbecoming Charge?

There is no specific definition for unbecoming conduct. It is not a behavior you read about or receive training to avoid. It is only used when a federal employer objects to something an employee has done – or has been accused of doing – that there is no specific rule against. Unless the behavior is proven to have happened and clearly unprofessional, it is one of the most difficult charges to defend.

Without a lawyer, however, you may not be able to seize the opportunities to clearly and compliantly prove your innocence. 

The Merit Systems Protection Board (MSPB) was designed to provide the tools needed by federal employees to defend themselves from false or unfounded accusations. This includes your right to hire a lawyer to refute the charge and establish a defense. An MSPB lawyer can help you ensure that you do not face adverse action and your record remains clean against unfounded or unsupported accusations of conduct unbecoming a federal employee.

The Law Office of Justin Schnitzer can provide the skilled MSPB defense you need when charged with conduct unbecoming a federal employee. Book your consultation by calling (202) 964-4878 or through our online form.

What is a Conduct Unbecoming for a Federal Employee?

The charge of conduct unbecoming a federal employee includes any behavior that your employer thinks is unprofessional or detracts from your work.

The purpose of this charge is to provide federal agencies a route to adverse action when unusual or small actions become unprofessional or harmful to others, even if no specific rule has been written against them. However, conduct unbecoming has often been used as a tool for discrimination, personal disputes, or without having proven that the objectionable behavior actually occurred – or had the negative effect that the employer claims.

The inherent problem is that ‘unbecoming conduct’ is subjective, and there is no official set of behaviors that a rule-abiding employer can avoid or enact.

Those wrongfully or spuriously charged with conduct unbecoming have several routes to either dismiss or defend against this non-specific and subjective charge.

Examples of Unbecoming Conduct

Unbecoming conduct is always judged on a case-by-case basis. It must be, because there are no specific rules that the charge refers to. The employer must make a case that the behavior was unbecoming, and the employee may present a defense that their behavior was reasonable, harmless, or professional under the circumstances.

Some examples of previous cases of unbecoming behavior include:

• Shouting and threatening gestures
• Disrespectful behavior toward superiors, colleagues, or customers
• Misuse of government property
• Using profanity
• Lying and other unethical behavior
• Playing practical jokes
• Unwanted touching that is not assault
• Sexual or lewd behavior

A No-Incident Charge

In some cases, a charge of conduct unbecoming will be leveled when no incident occurred. This can be due to hearsay, false reporting, a misunderstanding, prejudice, harassment, or intentional fabrication of behaviors without specific examples.

The good news is that if there is no incident, the behavior cannot be proven, and the charge is likely to be dismissed upon request.

Grounds to Dismiss Conduct Unbecoming Charge

In many conduct unbecoming cases, it is possible to have the charge dismissed even before a defense is necessary. This is due to the vague and subjective nature of the charge and the fact that employers often level a conduct unbecoming charge without proper evidence. There are several possible grounds for dismissal of a conduct unbecoming charge.

No Exact Description of the Behavior

The employer cannot provide an exact description of the unbecoming behavior. This would include quotes, records, or a detailed description of the scene where the conduct supposedly occurred.

No Specific Incident of the Behavior

The employer cannot provide a specific time, date, and location where the conduct occurred. This might indicate that the charge was based on hearsay, social media snooping, or was fabricated.

No Witnesses of the Behavior

No witness can provide an account of the behavior, which indicates that the incident was not interpersonal, private, or did not happen.

No Evidence to Prove the Behavior

The employer cannot provide any evidence that the behavior occurred. Without a witness or hard evidence, the charge cannot be proven to be based on facts or real events.

Not Given an Opportunity to Respond

Your case can also be dismissed if your employer did not give you an opportunity to respond to the accusation or charge of conduct unbecoming.

Possible Defenses for Conduct Unbecoming

If your employer has sufficient proof that there was some behavior, that behavior will be judged by the MSPB in a special hearing where both the charge and the defense will be allowed to make a case and provide evidence. In this situation, there are several defense strategies you can pursue which may prove that the charge or the conduct does not qualify as conduct unbecoming.

The Charge Based on Discrimination

Often, conduct unbecoming charges are used to mask discrimination. For example, if the supposed conduct is related to your culture, such as wearing cultural garb, listening to cultural music when others have music, or using words that are from your native dialect, this is clearly evidence of discrimination. Other forms of discrimination may relate to behaviors regarding lifestyle choices, personal fertility, or a disability.

The Charge is Based on Harassment

You may also argue that your behavior is being intentionally misconstrued as a form of harassment. For example, if you can show evidence of growing harassment and hostility, you may be able to prove that the charge is spurious and/or the next step in a campaign of harassment against you.

The Behavior was On Instruction

If the charge was for misuse of government property, a valid defense would be that you were acting under instruction. For example, if you were asked to use certain equipment to move boxes but then charged with improper use of the equipment for this purpose, your conduct would not be the one in question. 

The Behavior is Related to Your Health

In some cases, you may be able to defend unprofessional conduct due to a health problem. One example might be falling asleep at your desk. If you can show the doctor’s records that you are addressing the problem and seeking a medical solution, the matter becomes a health issue rather than one of misconduct. Your employer may also be subject to scrutiny if you have records of telling them about your health problem and then being charged for conduct unbecoming from its symptoms.

The Behavior was Self Defense

If you were charged with aggressive behavior, you may be able to prove that it was in response to being threatened or aggressed on. Just as in the schoolyard, an employer may charge only one person who was engaged in a dispute. This includes raised voices, pushing, profanity, and other elements of mutual aggression that might be blamed on the person who was not the instigator.

Defending Your Career from a Conduct Unbecoming Charge

If your employer succeeds at charging you with conduct unbecoming a federal employee, it can permanently damage your career path and future plans. It can become a black mark on your record and hurt your chances at promotions or future federal employee roles. This is why it is important to take immediate action as soon as you are aware that you are being charged, or even before if your employer threatens to charge you.

Whether the situation is discriminatory, your actions have been misconstrued, or the entire incident was fabricated to tarnish your reputation, you can build a defense with the help of a skilled MSPB attorney.

The Law Office of Justin Schnitzer is a federal employment law firm based in Maryland and represents federal employees nationwide. If you have been charged with conduct unbecoming a federal agent, we can help. Contact us to schedule your initial consultation by calling (202) 964-4878 or fill out our online form.