Federal Manager's Daily Report

The MSPB report on adverse actions stresses that to take discipline for misconduct, agency management must be able to show that the action was “for such cause as will promote the efficiency of the service.”

That so-called “nexus” requirement means that the agency must show a connection between the employee’s conduct or performance and the agency’s performance of its functions. “Many offenses that take place in the workplace will have a connection to that workplace and thus the work of the agency performing its functions,” it says, citing AWOL as an offense where nexus is considered self-evident.

Such a connection can be shown regarding off-duty misconduct as well, it says, and a rebuttable presumption of nexus may arise in certain “egregious circumstances.”

In other situations management would bear a heavier burden of proof, which can be met by showing that the misconduct at issue has adversely affected the employee’s or co-workers’ job performance or the agency’s trust and confidence in the employee’s job performance; or that the misconduct interfered with or adversely affected the agency’s mission.

The former may require detailed explanation from management as to why it lost trust in the employee, MSPB added, while the latter can be applied to a mission as broad as that of the entire agency or as narrow as that of the job.