News from Passman & Kaplan: As a public service, Passman & Kaplan wished to generally warn federal employees about the often-short response deadlines that apply when federal employees are faced with a proposed adverse action, in light of recent changes in the law.
Generally, proposed adverse actions often have exceedingly short deadlines for employees to respond to the proposed discipline. Until recently, the earliest that an agency could implement an adverse action was 30 calendar days from the date of proposal for major adverse actions, and potentially as little as 24 hours for a suspension of 14 days or less, although typically 3-14 calendar days has been a more common response deadline. As prior statute and regulations did not create maximum decision deadlines on proposed adverse actions, it was often possible for employees to request meaningful extensions on those deadlines in appropriate circumstances.
Two major recent legal changes limit the ability of employees facing adverse actions to receive extensions. First, as previously discussed in this blog, Pub.L. 115-41 restricted most VA employees’ response deadlines to 7 business days and the overall decisional period on proposed adverse actions to 15 business days, in cases involving removals, demotions, and suspensions of 15 calendar days or longer. Second, as discussed in this blog, Executive Order 13839 caps the period of advance notice to proposed adverse action and timeframes for deciding adverse actions after the employee’s response. Section 6 of that Executive Order further requires agencies to report how often they issue adverse actions beyond 30 days from proposal or 15 business days from the employee’s response, further pressuring agencies to not grant extensions.
Further, Section 5 of that Executive Order prohibits agencies from agreeing to modify or expunge adverse actions in settlement, even if there were to be an MSPB appeal, EEO complaint or whistleblower reprisal complaint challenging the discipline. While not fully clear, it appears that Section 5 does not prohibit agencies from settling proposed discipline pre-decision. Accordingly, employees are advised to not lose the narrow opportunity to try to settle proposed adverse actions.
Employees should also note the risks of resignation or retirement while an adverse action is pending. As previously discussed in this blog, under the terms of 5 U.S.C. § 3322, agencies can potentially place negative content into the employee’s Official Personnel Folder if the employee resigns or retires without a settlement in place.
Because of the short timeframes for action, employees facing proposed adverse actions need to act quickly to protect their rights.