Ask The Lawyer

By Debra Roth

Manage leave consistently

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As a supervisor, your role in managing employees’ leave comes into play when employees fail to follow procedures for requesting leave or when a request must be denied because the employee’s absence would disrupt the productivity of your department.

When dealing with disciplinary issues related to leave, the most common violation I see is the employee’s failure to request leave in advance and in accordance with agency procedure. Grievances or equal employment opportunity claims might also be filed when an employee perceives his request is handled differently from other employees’ requests for leave.

When an employee contests an action, a supervisor’s best defense is a record of consistency in managing leave requests. It’s when managers demonstrate leniency and inconsistency that they open themselves to liability.

The approach that most managers take is that emergencies do happen, such as illness or a death in the family, and that leave requests should be accommodated. But if you find yourself being more lenient with some employees, be prepared to justify your reasoning, whether it is based on an employee’s past performance or better attendance record. The inability to document and justify differential treatment could lead to successful grievances or EEO claims.

One reason for initiating adverse action against an employee is absence without leave (AWOL). Any absence from work that is not approved, or for which the request has previously been denied, is considered AWOL time. AWOL charges are taken seriously, can progress quickly, and even result in employee removal. The Merit Systems Protection Board (MSPB) has found that when AWOL employees are disciplined, workplace efficiency among other employees rises.

If an employee files a grievance following a disciplinary action resulting from a charge of AWOL, the employee has the burden of proof in showing that the absence was authorized by either management approval or law. Still, managers should ensure the disciplinary action is justified and documented.

A recent Education Department case before MSPB illustrates the importance of documentation:

Janice Stribling was transferred from her position in the department’s Philadelphia office to Washington. After the move, she contacted her supervisor to claim a medical emergency and request leave without pay, which was granted on the condition that Stribling furnish medical documentation to back up the request.

After failing to provide the documentation and being given a specific date to return to work by her supervisor, Stribling did not show up at the new office until three weeks after the determined date and made no effort to contact her supervisor to request further leave.

Given Stribling’s failure to report to work, the department removed her on AWOL charges and several other offenses. Stribling contested the action, claiming disability discrimination and retaliation.

MSPB affirmed her removal in August, stating that the agency had acted properly and that Stribling could not prove the disability discrimination or retaliation claims. In February, the Federal Circuit Court of Appeals declined to overturn MSPB’s decision, stating that the board’s findings were appropriate. Management’s documentation of Stribling’s failure to return to work on the predetermined date, her knowledge of this date, and her inability to confirm medical complications provided the department with the backup it needed to justify the actions.

Not all cases will be as clear-cut as Stribling’s. Particularly under sick leave or Family and Medical Leave Act provisions, employees may have the legal right to leave even if they fail to properly follow request procedures. Managers should investigate and address any questions regarding an employee’s right to leave with human resources officials before alleging wrongdoing or taking disciplinary action.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.

Navigate disciplinary actions with care

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No matter how much you dislike it, your role as a manager sometimes requires you to take disciplinary action against an employee. The alternative — allowing some employees to disregard the rules — eventually hurts the performance of the agency as a whole.

But when employees protest disciplinary actions taken against them — by appealing to the Merit Systems Protection Board or filing a union grievance — punishments are sometimes overturned because of managers’ errors during the disciplinary process.

One of the most common mistakes made by managers is failing to identify all the reasons for selecting a certain punishment. In a 2002 case against the Justice Department, MSPB would not uphold a disciplinary action because it raised charges that had not been raised in the initial proposal for discipline. In a 2007 case against the U.S. Postal Service, MSPB ruled that “the agency is required to prove the charge as it is set out in the notice of proposed removal.”

Managers also can get into trouble with wording. If an employee continues to consult with an outside contractor on an issue after his supervisor told him not to, the charge is better stated narrowly as “failing to follow supervisory instructions” than as “insubordination.” MSPB noted in the 2007 Postal Service case that proof of insubordination requires a much greater showing than proof of failure to follow supervisory instruction.

With these rulings in mind, it’s important to proceed carefully in disciplinary matters:

*First, gather evidence. Describe who, what, when, where and why. Get the perspectives of witnesses and others involved in the incident. Give the employee facing disciplinary action the opportunity to explain his version of what happened. Keep in mind that bargaining unit employees have the right to union representation during any discussion that could lead to discipline. And document all information discovered.

*After the facts of the situation are established, review how you have previously enforced the rules in question. When I’m defending an employee charged with a disciplinary removal or suspension, I look at whether the employee was aware of the rule he broke and if the rule is consistently enforced.

For example, if my client is disciplined for continual lateness, I look into the agency’s policy for reporting to work. Say the employee is supposed to report at 8 a.m., but doesn’t show up till 8:15 a.m. because of his daily trip to the cafeteria. He claims he was under the impression that reporting to work means being in the building, not at his desk. As his defense counsel, I look into whether all employees are held to the standard of reporting to their desks at 8 a.m. and whether all who failed are penalized. If you, as a manager, are inconsistent, it’s unlikely your disciplinary action will withstand an appeal.

*Give the employee facing disciplinary action a chance to reply to the charges following your investigation. The response can be written or verbal, and the employee can provide documentation or witness accounts to support his position. During this process, you should never give any indication that a decision is predetermined. And take a written record of this phase.

*Before issuing a final decision, consider the employee’s reply. Weigh any extenuating circumstances, such as provocation by a co-worker or personal or medical problems.

*If after this evaluation you determine that disciplinary action must be taken, the next step is to determine what action to take.

Certain factors, commonly referred to as the Douglas factors, should be considered to determine an appropriate penalty. The name stems from the 1981 case Douglas v. Veterans Administration, in which MSPB outlined the following factors managers should consider when determining penalties: nature and seriousness of the conduct; the employee’s job and responsibilities; past disciplinary record; ability to perform and the supervisor’s confidence in that ability; consistency with penalties for other employees; consistency with table of penalties; notoriety and impact on the agency’s reputation; clarity of notice of violations; potential for rehabilitation; mitigating circumstances; and availability of alternative sanctions.

Unfortunately, MSPB decision did not establish which factors managers should weigh more prominently. This is why consistency in your actions is important. Consistency will back up your decision-making process.

*Employees generally have only 30 days to appeal the imposed disciplinary action. Given that tight deadline, it’s professional courtesy to give an employee’s defense counsel an extension to respond to the action. Consult with your agency’s human resources and legal counsel at any step of the way.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.