MSPB Issues Guidance on Adverse Actions

Is the MSPB Guide rendered obsolete, or merely redundant, by the December 2016 Board Report to the President and Congress, "Adverse Actions: A Compilation of Articles"? Readers will need to make their own decision, but the brand new report form the Board's Office of Policy and Evaluation is a terrific short course on substantive and procedural aspects of disciplinary cases, with a little extra discussion of performance cases. And there's a brief explanation of Board hearing and appellate procedures. The Report should be printed and chained to the library table (for those facilities with libraries). Check it out at mspb.gov

Here's the table of contents:

1. A Primer in Pieces
2. Second-Hand News Can be Misleading
3. The Adverse Action Process - A Flowchart
4. Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
5. Different Types of Adverse Actions Use Different Rules
6. Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
7. Decision-Maker Must Listen and Have Power to Decide
8. Connecting the Job and the Offense ("Nexus")
9. Labels are Not Required, but if Used They Must be Proven
10. Determining the Penalty
11. How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
12. Avoid Facilitating Prohibited Personnel Practices (PPPs)
13. Agency Officials' Substantive and Procedural Errors and How to Fix Them
14. Identifying Probationers and Their Rights
15. The Limited Powers of the U.S. Merit Systems Protection Board
16. Why Federal Employees Have the Right to a Hearing
17. How a Hearing is Conducted
18. Implementing or Challenging Initial Decisions
19. Additional Resources
20. Adverse Actions: A Compilation of Articles (complete report)

More Due Process From the Federal Circuit

The Federal Circuit, whose docket principally consists of intellectual property disputes, continues to blaze the way as to constitutional due process issues arising in Board litigation. For years, the Board relegated to a harmful procedural error analysis challenges to substantial errors in statutory and regulatory procedures governing the adverse action notice, reply, and decision stages. But with decisions in Stone and Ward, the Federal Circuit elevated the level of concern to constitutional dimensions, following Supreme Court precedent establishing a government job as a property right under the Fifth Amendment, deprivation of which may not occur without due process of law. In its latest decision on the topic, Federal Education Ass'n. v. Dept. of Defense Domestic Dependents Elementary and Secondary School, No. 2015-3173 (Precedential Nov. 18, 2016), the court determined that if, prior to issuance of an adverse action proposal, a high-level agency official makes known to the ultimate proposing and deciding officials the higher-level interest in removing the employee, due process is violated, and the resulting decision will be reversed, if the employee was not made aware of the expression of interest prior to completion of the reply process.

OWBPA Release and Waiver Provisions Even When Age Discrimination is Not Raised?

Everyone (almost everyone) knows that an OWBPA release and waiver should be included in the settlement of any employee over the age of 40 who settles a case through resignation or retirement and the employee previously asserted age discrimination in connection with the actions settled. What about when the employee did not raise age discrimination in some manner prior to the settlement? Revising earlier law, EEOC determined in Hester S. v. Yang, Chairman, EEOC, 0120121983 (Oct. 24, 2016), that OWBPA applies to waivers of ADEA rights or claims regardless of whether the rights or claims were raised before the execution of the settlement containing a global release. So, practitioners, make sure those OWBPA releases and waivers are included in settlement agreements for us folk protected by ADEA if a global release is to achieve its desired effect-and those terms include, to be sure, the seven-day revocation period.