NOAA Workforce Management Office
Serving NOAA's Most Valuable Asset - People
NOAA Supervisory Resource Guide
How Do I Deal With an Employee's Misconduct?
- An employee disrupts the office with aggressiveness and abusive behavior, affecting the morale and performance of others;
- an employee is insubordinate, refusing to follow direct orders; or
- an employee has a leave abuse problem or other time and attendance problem.
Principle: Employees may be disciplined for misconduct, which adversely affects the efficiency of the service. However, keep in mind that your goal is to change the employee's behavior, rather than to punish the employee.
Where Do I Start? In the federal service, we practice progressive discipline. This means that we start with the lowest level of intervention possible to resolve a situation. The lowest level of intervention in Scenario 2) and 3) above would be a verbal warning. A verbal warning would not be appropriate for Scenario 1) because inappropriately aggressive and abusive behavior disrupts the workplace and may lead to complaints being filed against the agency. Work closely with your servicing WFMO HR Advisor, who will assist you in determining the correct way to handle a problem. In the world of employee relations, it pays to consult early and consult often. Even if you think you may not address a situation with an employee, seek advice from your WFMO HR Advisor. You may be advised, for example, the best way to collect and preserve documentation that you would need if you do decide to take action.
As a manager, you play the primary role in making the case for taking disciplinary action against an employee. If a situation involves misconduct, the first question to ask is whether any discipline is appropriate; that is, whether any level of disciplinary action may be supported by sufficient facts to pass muster as justifiable discipline before an outside party. The key factors such a party will consider include the following:
- Do the facts establish the employee did - or failed to do - the things claimed? If not, discipline will not stand, since the employee is presumed innocent unless proven "guilty." Always interview the employee about the situation – be sure to hear the employee's side of the story. If an incident involves more than one employee, hear everyone's story, including any witnesses.
Employees that are represented by a labor union (bargaining unit employees) have what are known as Weingarten Rights. This means that, if you begin asking a bargaining unit employee about a situation in the workplace and the employee believes that discipline may result from the questioning, then the employee may request union representation before continuing with the discussion. Once an employee makes a request for union representation, you must stop or reschedule the discussion, if necessary, to allow a union representative to be present.
- Did the employee's behavior, if proven, violate an established rule, regulation, or requirement? If not, any disciplinary action is doomed to reversal on review. This does not mean that there is a specific rule prohibiting every type of misconduct. A helpful tool in determining whether an employee's actions violate a workplace rule is the Table of Offenses and Penalties which appears at the end of DAO 202-751. The general prohibition against conduct unbecoming a federal employee' is used as the rule against many types of misconduct.
- Did the employee know - or should have known - of the rule, regulation or requirement? If the rules have not been adequately communicated to employees, the employee cannot be held accountable for compliance with them. General rules are presumed to be known by all employees. Rules that you issue in your capacity as a manager, or that are peculiar to the area where you work, are a different story. Make sure you e-mail those rules to employees and save the e-mail showing date, time, and to whom the message was sent.
- Has the rule been enforced consistently? If not, discipline against an employee is likely to be considered arbitrary or discriminatory by a third party, regardless of how well the case is proven. This is an especially easy mistake to make with attendance issues. Before addressing an employee with poor attendance, check the attendance records of the other employees in your area to ensure you are treating everyone equally.
- Gather as much information as is readily available and contact your WFMO HR Advisor for assistance.
Rules and Flexibilities:
- Disciplinary actions are governed by the due process requirements of 5 U.S.C. Chapter 75 and the case law of the Merit Systems Protections Board (MSPB) and the Federal courts. An employee serving a probationary period (usually the first year of Federal employment), who engages in inappropriate conduct can be removed with a minimum of formal procedure. See Manager's "How are Probationary Periods an Effective Tool for Supervisors". You should consult with your WFMO HR Advisor about the procedures applicable to probationary employees.
- Types of Disciplinary Action (and some tips including for reprimand and above that WFMO HR Advisor must be consulted)
- Oral counseling
- Written memorandum of counseling
- Written reprimand
- Suspension of 14 days or less
- Suspension of more than 14 days
- Several factors come into play in determining an appropriate penalty. Penalties should be reasonably consistent with the discipline affected in similar situations against employees with similar records. This means that you carefully weigh a number of things in determining how severe a disciplinary penalty should be, including: nature and severity of the offense; the employee's previous record; the employee's potential for rehabilitation; penalties imposed on other employees in similar situations; and penalty guidelines. Consult with your WFMO HR Advisor to learn more about deciding an appropriate penalty.
- Oral actions and informal memoranda/letters can be given without undue formality. For more serious misconduct (and penalties) draft a memorandum notifying the employee of the discipline you are proposing and the incident(s) upon which it is based. Your WFMO HR Advisor will provide further advice. Written reprimands and proposals for suspension and removal must be reviewed by your WFMO HR Advisor.
- Lesser discipline such as oral reprimands, letters of admonishment, and suspensions of 14 days or less may be grieved through the Department's administrative grievance procedure DAO 202-771, or for employees covered by a collective bargaining agreement containing a negotiated grievance process. The employee may appeal longer suspensions, demotions, and removals to the MSPB or union employees may file a grievance under a negotiated grievance procedure. An employee may also file an EEO complaint challenging any type of disciplinary action, if unlawful discrimination is alleged. Alternatively, an employee may request mediation through the Alternative Dispute Resolution program.
Time Frames: A disciplinary action should be taken promptly after an instance of misconduct occurs. You must give an employee an opportunity to reply to a proposed suspension or removal. Contact your WFMO HR Advisor for appropriate time frames.
Good Management Practices:
- Maintain documentation of any misconduct that occurred and the negative impact it had on the employee's work or that of other employees.
- Be fair to the employee. Consider his or her side of the story and any evidence submitted.
- Gather documentation
- Consult with your HR Advisor before taking action beyond counseling
- Issue prompt disciplinary proposal to employee
- Allow time for employee's response
- Be fair
- Obtain decision by appropriate management level
A Note on the SES:
- The statutory standard for action is different for career SES employees than for other employees. Whereas other employees may be removed "for such cause as would promote the efficiency of the service," the standard for SES is "misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function."
- In certain instances, career SES employees who are serving probationary periods may be removed with as little as a one day written notice, depending upon the type of appointment they held before entering the SES. You will need to consult with the Executive Resources Manager within the WFMO to determine which procedures apply in your case.
- A letter of reprimand is an option for the SES. Suspensions of 14 days or less are not an option for the SES. The minimum period of suspension for career SES employees is 15 calendar days.
- There is also no provision for "downgrading" an employee from the SES based on misconduct. Career SES employees who are removed for misconduct are removed from Federal service, and have no "fallback" to a GS-15.
NOAA Employee and Labor Relations Division
NOAA SES Contacts
WFMO HR Advisors
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Page last edited: April 01, 2012