Pertinent rules for federal employee discipline describe the information that must be provided to the employee. Image: Lisa-S/Shutterstock.com
By: FEDweek StaffA recent MSPB decision stresses the importance of agencies providing employees with the required information regarding their appeal rights when taking disciplinary actions that can be appealed there, says an article in a new MSPB publication.
That case involved the requirement that the agency notify employees that they may challenge an adverse action by filing either a grievance under the negotiated grievance procedures or an MSPB appeal, but cannot do both. The agency’s notice did state that the first method selected would serve as an election to proceed under that method, but it did not state that choosing it would foreclose the other option.
The MSPB ruled that because of that omission, the former employee could continue with an appeal there even though she had first invoked the negotiated grievance route; the union had refused to pursue it on her behalf.
Said the article, “How can agencies avoid making mistakes like these? Common practices in technical occupations like pilots and surgeons suggest one option: checklists. No matter how experienced a person might be in their occupation, it is easy to forget small details in the process of doing so many things.”
It said that the pertinent rules for federal employee discipline (5 CFR 1201.21) describe the information that must be provided to the employee. That includes not just the either-or choice, but also information regarding time limits, possible jurisdiction of the EEOC for appealing on grounds of violations of laws that agency enforces, and more.
“This makes it easy for any agency to use the exact language as a checklist, ticking off each piece to make sure they have included it in their notice. For agencies that use standardized language for all their notices, it may make sense to regularly check that language against the latest laws, regulations, and case decisions to ensure that the agency’s word choices are still fully compliant,” it said.
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