Lower Standard for Upholding Actions

As previously disclosed, the rules seek to speed up the notice and reply periods available to employees in disciplinary cases, combine the now-separate procedures used in performance and conduct cases, prohibit appeals to the Merit Systems Protection Board in a new category of “mandatory removal offenses” (see story below) and restrict MSPB’s authority to mitigate or overturn management decisions. The rules also disclose that DHS wants to lower the bar for review of management actions. Under current policy, actions based on conduct are sustained if supported by a “preponderance of the evidence,” and performance actions are sustained if supported by “substantial evidence.” DHS wants to impose the lower “substantial evidence” standard of proof on MSPB review of all disciplinary cases. The rules also seek to limit certain employee rights to demand hearings and gather evidence from the agency during an appeal to MSPB.