Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. Factor: Employee's . The nature and seriousness of the offense, and its relationship to the employee's . 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. Acknowledgement of Receipt: ______________________________ __________________ (Employee's Name) (Date) Sample: If employee fails or refuses to sign the acknowledgement: Sample: I certify that I handed this proposed action to (Employees Name) on (Date). See Douglas v. Veterans Administration, 5 M.S.P.R. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. A knowledge of the Douglas Factors is helpful for both federal employees and managers. Consistency of the penalty with any applicable agency table of penalties; 8. The factors may mitigate or aggravate (1) The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.Relevant? The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. In theory, discipline should be both corrective and progressive. What every federal employee facing discipline should be familiar with: The Douglas Factors. Tables of Penalties are guidelines that work in conjunction with the criteria supervisors use to determine appropriate penalties for misconduct, called the Douglas Factors.1 They do not specify mandatory discipline.2 Tables of Penalties also do not apply to contractors, and each agency has discretion as to which employees the Table will apply. These 12 factors play a key role in the outcome of federal employee discipline cases. All other penalty determinations should undergo thorough reasoning under the Douglas Factors. Why can such behavior not be tolerated? As instructed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), MSPB has no role in evaluating an agencys chosen penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon failure in a critical performance element).1, The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due process, in actions taken under 5 U.S.C. PDF Douglas Factors In Depth - Branch 38 NALC EachDouglas Factor can work for or against an employee depending on their specific case. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. Sample: Your unauthorized absence(s) violates (Name of Agency) policy (Identify by name, number and date) specifically Section (Number) at Page (Number) which states: (Extract the language of the policy). 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. This Douglas factor is important and we use this argument in our representation of federal employees. PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 Explanation, if relevant: (10) Potential for the employee's rehabilitation.Relevant? Berry & Berry, PLLCrepresents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? 14.CC:s CCs always include the deciding official and may include a human resources office official and/or legal counsel in accordance with your Agencys practice.CC: PAGE PAGE 9 / 0 1 2 3 ? Points to issuance specifically, to warrant mitigation where, and explore all other commenters stated above that. It is important that you really highlightthefactors that are in your favor. 7513, the agency must notify the employee of the factors it will consider regarding the penalty and provide the employee with the opportunity to respond.9 As explained in our article, Agency Officials Substantive and Procedural Errors and How to Fix Them, because this is a matter of constitutional due process rights, an agencys failure to provide notice and a meaningful opportunity to respond regarding the penalty is a violation of the employees substantive rights. The national media picked the story up, and it was very detrimental to the agency. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). PDF The Douglas Factors - United States Office of Personnel Management If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. At the MSPB, you, or an attorney you hire, will argue your case and present evidence related to the Douglas Factors analysis. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Obtain insurance protection for your career today. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. Private sector cases are drastically different. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ Ultimately, the more credible evidence you can provide to support your position the better. Discipline can range from letters of reprimand to short suspensions. It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. For example, a law enforcement officer is charged with enforcing laws. PDF The Douglas Factors - Energy Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Your absence delayed the submission of (Specify) report which was due on the date you failed to report to work. Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. Let me give you an example. Your unauthorized absence required other employees to be responsible for accomplishing your work on the days you were absence. PDF Douglas Factors - AFGE The Douglas factors are probably the most important factor in determining the outcome ofany federal employees discipline case. These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. Cir. We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employees misconduct, arguing that the employees actions have caused the federal agencys reputation to somehow become tarnished. This factor lends itself most to employees arguing for leniency in their case. PDF Table of Penalties for Title 5, Hybrid Title 38, and Title 38 Employees the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. The thrust of this factor is that the more prominent the position, or more trust and power you hold in the position, the more seriously the agency is going to view any misconduct you engage in. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). Lets sayyou are facing a long suspension for showing up late to work for a long period of time because you are a recovering alcoholic and fell off the wagon for a few months. %PDF-1.5 If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. 280, 290 (1981). 1.1 The twelve keys to the outcome of your discipline case 1.2 Background - Source of The Douglas Factors 1.3 The Douglas Factors 1.4 Analysis and Explanation of each Douglas Factor It reduces maximum penalties for offenses like murders and other homicides; armed armed home invasion burglaries; armed armed carjackings, as I mentioned; armed robberies; unlawful gun . removal). Cir. The final Douglas Factor asks both manager and employee to consider alternative penalties. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. endobj Be clear, terse, and apologetic. 2 0 obj <> If, for example, management had sent a memo to all employees explaining the rules and potential discipline for the personal use ofoffice supplies and then two weeks later your took three reams of paper and a stapler home with you, management would have a strong argument that you were on notice and still engaged in the misconduct. Factor 11: Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter. Do not deny the existence of bad facts. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. However, if you properly argue this factor it can go a long way towards helping your case. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. Explanation, if relevant: (9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question. Relevant? When our firm prepares an appeal to the MSPB for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employees case. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link Cir. In addition, actions . If you want you can download and read the fullDouglas v. V.A. Factors considered are the employee's job level and the type of employment that may include a supervisory or fiduciary role, contacts with the public, and prominence of the position. 1999). Your job as an employee is to support your position as best as you possibly can. ALL RIGHTS RESERVED. Managers should have a legitimate, non-discriminatory or "business" reason for taking a disciplinary action. And even if the circumstances surrounding the misconduct incident may be substantially similar, the penalty imposed may be different based upon an independent evaluation of the other Douglas Factors. Sample: Specification #1. The ninth Douglas Factor asks whether an employee knew or should have known about the potential implications of their actions. Important things to consider for this factor are how long you have been employed by the federal government generally, and your agency specifically (if you were previously in the armed forces or worked for another civilian agency). Table 1-1: Table of Penalties for Various Offenses The following Table of Penalties is found in Army Regulations Online: AR 690-700, Chapter 751. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. MSPB decision. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . PDF Table 1-1: Table of Penalties for Various Offenses - United States Army A Table of Penalties is a list of . However, the principle of "like penalties for like offenses" does not require perfect consistency. 1 0 obj It is more often used to attempt to aggravate a disciplinary penalty. PDF Douglas Factors In Depth - Letter Carrier Connection Nor can it be doubted that the federal courts have regarded that authority as properly within the Commissions power. Douglas v. Veterans Administration, 5 M.S.P.R. If an employee is unwilling to even take responsibility for their actions, how can a manager be confident they will be rehabilitated after they are disciplined? Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. such factors as the value or the property or amounts of employee time involved, and the nature of the position held by the offending employee which may Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. If the person signed for receipt of the letter include that information. 1X-dr{ydhJZ*5?wZ?k-pmM\*smd!4[36i7V|h@n Relevant? When looking for an attorney make sure they have experience handling federal-sector employment cases. Knowing what managers are looking for will aid your oral reply presentation, and could be what saves you your job with the federal government. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties. For example, lets say you are arguing that there aremitigating factors present in your case (factor #11) because your child was hospitalized for a full month leading up to your misconduct. (See Attachment 1 -Your statement of (DATE) and Attachment 2- Statement of your immediate supervisor of (DATE)). PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. 2278 0 obj <>stream In these circumstances, appropriate analysis of this factor may result in considering a more severe penalty. Can an employee take responsibility, correct their behavior and come back to the job? The Douglas Factors explained, the keys to a discipline case - Ivancie Law 0 Reviewing thesetwelve factors in a vacuum is not useful to you as an employee, or tomanagers who are trying to make a decision about a specific disciplinarycase. The first Douglas Factor examines how the level of misconduct relates to an employees particular duties, as well as if the offense was committed intentionally. Can someone help me present the Douglas Factors to management? Yes___ No____The notoriety of an offense or its impact on the reputation on the Agency is usually directly related to the seriousness of the misconduct and/or prominence of the employee's position. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. The Douglas Factors should be considered in selecting a penalty. Check with your labor relations advisor. The Douglas factors 8. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Only those Douglas Factors relevant to each case need be considered. Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. ______________________________ __________________ (Name) (Date) Sample: If employee cannot be reached personally at the time of the proposal: I certify that I sent this proposed action to (Employees Name and address) on (Date) by both certified and express mail. Consistency of the penalty with any table of penalties an agency may have . disciplinary situations. <>>> They likely held the same job you holdat some point in the past. In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. @ Q W % & ' ( ) * P X }ppfU h hu CJ OJ QJ ^J aJ hu OJ QJ ^J h hu OJ QJ ^J hV h OJ QJ ^J hG CJ OJ QJ ^J aJ hG hG CJ OJ QJ ^J aJ hG OJ QJ ^J h OJ QJ ^J h58 OJ QJ ^J hV hV OJ QJ ^J h5U OJ QJ ^J h hV OJ QJ ^J hV h5U hV CJ OJ QJ ^J aJ / 0 3 Y | & t z kd $$If l 0 . 280, 305-06 (1981). Your unauthorized absence cannot be tolerated because Agency supervisors, managers must be able to plan your work and rely on you to be available. stream Visit WrightUSA.com to start your policy! The result will turn on the specifics of your case and the procedural posture as well. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. Note: The above misconduct could be the basis for two separate charges, Unauthorized Absence and Failure to Call in an Absence as Required by Agency Policy. Additionally, you have the right to pick a representative of your choosing should you not have union assistance available to you, or you wish to hire a different a representative. A well presented reply to theproposed discipline can lead to substantial mitigation. Note. Factor 1: The nature and seriousness of the offense, and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. Contact your employee relations advisor to get the information to fill in the blanks. Postal Service, 634 F.3d 1274, 1282 (Fed. 1999) (holding that the Board inherited mitigation authority in misconduct actions from the old Civil Service Commission). Guidelines for determining appropriate penalties 2 - 3, page 8 Additional considerations 2 - 4, page 8 Chapter 3 Table of Offenses and Penalties Guidance, page 9 General 3 - 1, page 9 Offense column 3 - 2, page 9 Penalty column 3 - 3, page 9 Appendixes A. References, page 18 B. DOC Proposed Disciplinary/Adverse Action Worksheet - FedSmith.com You and your representative, if an agency employee, will be allowed a reasonable amount of official time to assist you in your reply, to review the material relied upon to support the reason for the proposed action, and to prepare and present your written and/or oral reply. The more notorious the offense you commit the more severe the discipline you will face. Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. Not only the first, this is also the most important Douglas Factor, as the MSPB has directly statedthatthe most significant Douglas factor is the nature and seriousness of the misconduct and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Luciano v. Department of the Treaswy, 88 MSPR 335 (MSPB 2001). An example of an aggravating factor would be an employee who has been previously discipline for the same misconduct two times within the last year. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. EAP can be reached by calling 1-800-XXX-XXXX. -What kind of recovery can I get in my discrimination case? Xu"! } =!4$?g*QUHC(K(! SO4T=1!M|#7LSR"z/U1'6P($PC=Q"@/BQy~>S,;@ The key is credibility. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. If youre a law enforcement officer and you have been convicted of assault it is likely that your supervisor will lack confidence in your ability to follow and enforce lawswhich cuts to the very core of your duties as a law enforcement officer. What is the table of penalties? - idswater.com Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? Weigh Douglas Factors in disciplinary cases - Ask The Lawyer You neither came to work nor did you call in your absence. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Deviation from the guide is allowed but going beyond or outside the penalty recommended in the table will be closely scrutinized.
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