Ask The Lawyer

By Debra Roth

By resigning, you can’t hide pending disciplinary action

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A common personnel practice when dealing with a problem employee is to offer the employee the chance to resign with a “clean record” before the disciplinary process starts. An employee who receives such a warning, even a warning after the formal process begins, may decide it is better to resign rather than having a removal on the record. This is not always the best idea.

There are significant differences in the coding that goes on Standard Form 50 (SF-50), Notification of Personnel Action, based on your job status and your point in the disciplinary process.

If you know you are going to be fired but resign first, your code merely says you resigned. Of course, it would be nice if you did not have human resources professionals asking you to explain why you would leave a good government job without some job opportunity available. Even though this kind of record looks relatively clean, it still has problems.

If you receive a notice that you are being terminated during your probationary period, your final SF-50 is not permitted to give the reasons for your termination. It does, however, indicate a code that will say to an experienced HR professional that your separation was involuntary. During a probation or trial period, it does seem there are at least some advantages in resigning before being fired, but there are still other considerations.

If you are in the competitive service, your agency must give you written reasons for your termination during probation. You may want to evaluate the strength and motive of those reasons. Even though you do not have an appeal right to the Merit Systems Protection Board (MSPB) as a probationary or trial employee, you can file an equal employment opportunity (EEO) complaint or a whistle-blower reprisal claim. If you resign, it is difficult to later have your claim heard.

Those employees beyond their probationary or trial period face different concerns. If the employee receives a notice of proposed removal and then resigns, the final SF-50 will say that the employee resigned after a proposed removal was issued. While not a legal bar to a future federal job, this makes being hired a near impossibility.

 

The nonprobationary employee who receives a verbal warning to resign or face removal proceedings has to weigh the strength of any case against him or her against the value of the appeal right. Remember, in an MSPB appeal, your agency must prove the charges against you, which places you and the agency in a different legal posture than if you only file an EEO or whistle-blower reprisal claim. There is much case law that says an employee who resigns after being threatened with termination and resigns voluntarily cannot appeal to MSPB.

If an employee who is either beyond or within the probationary period receives a notice of removal, or a proposed removal, it is not too late to go back and negotiate a “clean record.” This can be done at the agency or MSPB and is a frequent term in a settlement of an appeal, even though it is the agency’s choice on whether to agree to it. Such an agreement also will require the employee’s waiver of any legal challenge to the removal.

Another obstacle is Optional Form 306 (OF-306), Declaration for Federal Employment, which most agencies require to be executed before hiring. The form asks if during the last five years, you have been fired, resigned after being told you would be fired or left a job because of specific problems. Failure to answer truthfully could theoretically lead to criminal prosecution or being fired again, with a determination that you are unsuitable for federal employment.

Signing an OF-306 raises the question about how much choice you really have in resigning or being fired. The supposed “clean record” is not as clean as it appears.

 

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