This material will be made available for review to you and/or your designated representative by contacting the (NAME & PHONE of POC) to arrange a mutually convenient time. Relevant? Employees should be aware that managers sometimes use a Douglas Factors Checklist that helps then analyze and consider each factor. See U.S. Any replies submitted will be given full consideration. The twelve keys to the outcome of your discipline case, Background Source of The Douglas Factors, Analysis and Explanation of each Douglas Factor, The nature and seriousness of the offense, relation to employees duties, and intent. Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. Factor 7: Consistency of the penalty with any applicable agency table of penalties. If you are a federal employee facing discipline, this article can help you understand what factors your managers are contemplating as they make a decision on your case. U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240. In every discipline case there are going to be facts that likely hit on a specific Douglas Factor and really cut against the employee. Take factor #4 for example, past work record, if you can get colleagues, supervisors, etc. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . PDF NASA Desk Guide for Table of Disciplinary Offenses and Penalties Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift. The fifth Factor relates to an employees ability to do their job relative to the specific offense committed. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. Internal Control Evaluation, page 21 . The fourth Douglas Factor requires managers to take an employees past performance into account. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Check with your labor relations advisor. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. If you are a federal employee facing discipline, asyou read this articleyou should be thinking about the which of the twelve Douglas Factors are in your favor, and how you can present evidence to support your position on those factors. 1999). 2012) (internal citations and punctuation omitted). Similar offenses can be used to guide penalty selection. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? 11700 Plaza America Drive Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. One of the basic tenets of the administration of "just cause" is the even-handed application of discipline. Lets say you missed a deadline for an important assignment and management has proposed removal. We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action. A good example of negative notoriety are the recent cases involving Secret Service Agents that hiredescorts in South America. The Douglas Factors . The notoriety of the offense or its impact upon the reputation of the Agency; 9 . There are certain standards of behavior and conduct expected of employees by our external and internal customers. Obtain insurance protection for your career today. hbbd``b`:$ Hd V$D? For example, a law enforcement officer is charged with enforcing laws. 1985). Table Of Penalties Douglas Factors @b o $&F Sq70 # Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. 0 Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Factor: Nature and seriousness 9. Reston, VA 20190. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. The first time an employee is See Douglas v. Veterans Administration, 5 M.S.P.R. 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. If you are looking for a representative, note that we are not taking on any cases at this time. This Quick Start Guide covers the following Key Points: 1. The .gov means its official. Only those Douglas Factors relevant to each case need be considered. Yes___ No____In evaluating the seriousness of the misconduct, an offense is more severe if it was intentional rather than inadvertent and if it was frequently repeated rather than being an isolated incident. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . In some instances the money they saved you may be less than their fee for taking your casea great result for you the employee. WA The final Douglas Factor asks both manager and employee to consider alternative penalties. 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 A federal agency's table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses. Your job as an employee is to support your position as best as you possibly can. The site is secure. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. affidavits, performance ratings, SF-50s, letters of commendation) for the record. Explanation, if relevant: (2) The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. It is important to note a case was recently lost in another government agency when the deciding official stated the Agency's zero tolerance policy on workplace violence required him to remove the employee from governmental service. This factor is one of the least significant of the Douglas Factors and is usually considered as aggravating. However, the seriousness of the offense and an evaluation of other Douglas Factors may outweigh an employee's positive work record. endobj Yes___ No____Unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in an incident are mitigating circumstances that should be reviewed. 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Yes___ No____In order to use prior discipline as a basis to enhance a current penalty, three criteria must be met. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. Agency's table of penalties recognizes this severity in establishing ranges of penalties for But they may refuse to. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline. Merit Systems Protection Board still follows today. Any personal issues going on around the time of the misconduct should be brought to the attention of management. Do not deny the existence of bad facts. Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. { v v _ lv lv lv Y Y S{ d lv lv lv 9w 9w 9w 9w d= BB 1 BB Proposed Disciplinary/Adverse Action Worksheet 1.DATE: (OF PROPOSAL MEMORANDUM) TO: (NAME), (POSITION) FROM: (NAME), (ORGANIZATIONAL TITLE) Must be signed by Proposing Official2.SUBJECT: Notice of Proposed (SUSPENSION OF (#) DAYS, CHANGE TO LOWER GRADE, REMOVAL)3.Paragraph Purpose of the Memorandum Sample: This is notice that I propose that you be (suspended for XX days, changed to lower grade, removed from your position and from Federal service) no earlier than 30 days from your receipt of this notice. This factor lends itself most to employees arguing for leniency in their case. 64 0 obj <>/Filter/FlateDecode/ID[<3B0C3180ECE15C735B3288C81A6A54AE><030475FC020CB04DB606BDDC5C48A5E3>]/Index[49 24]/Info 48 0 R/Length 81/Prev 157377/Root 50 0 R/Size 73/Type/XRef/W[1 2 1]>>stream %%EOF The right to answer orally does not include the right to a formal hearing with examination of witnesses. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. The key to doing so is to fully argue the rationale behind this argument before the agency involved or the MSPB. Also any awards or accolades the employee has would be mitigating in nature. Cir. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. If not, include delivery confirmation by the postal or delivery service. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. This one is pretty self-explanatory. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. Federal disciplinary cases are difficult and costly to fight, and the Merit Systems Protection Board is not the most favorable forum for federal employees. Managers must take an employees propensity for rehabilitation into account. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. On the surface, many incidents of misconduct may seem to be similar. Remember, there is only one absolute penalty, which can be given without a Douglas analysis - the 30-day suspension required under law for misuse of a government vehicle. 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. Breaking an obscure rule will be viewed less harshly than breaking one that is well publicized, and particularly one on which the employee was given specific notice. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link Contact your employee relations advisor to get the information to fill in the blanks. This factor looks to the status of the employee. Misconduct is also considered more severe if it is done maliciously or for personal gain. PDF Douglas Factors - AFGE For example, we might argue that the lack of a clear agency policy on computer usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government computer. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. The Federal Starr is a publication by Starr Wright USA. Factor 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. endobj <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 15 0 R 16 0 R 17 0 R 18 0 R 19 0 R 20 0 R 21 0 R 22 0 R 23 0 R 24 0 R 25 0 R 26 0 R 27 0 R 28 0 R 34 0 R 35 0 R 36 0 R] /MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> On (DATE), you were scheduled to report to work at (TIME). It is a widely accepted principle that the penalty must be appropriate to the offense and the minimum that will correct the behavior. 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. The idea is that discipline is meantto be corrective and progressive. Such cases call into question an employees ability to perform their specific job duties with integrity. Heres what anyone who works for the federal government needs to know about the Douglas Factors. Stewarding Conservation and Powering Our Future, Toggle Dyslexia-friendly black-on-creme color scheme. Information provided is for educational purposes only, please consult with a licensed attorney before taking any action. However, an employee with no prior disciplinary record, good prior performance and job dedication would probably have good potential for rehabilitation. Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. Managers must also consider the scope of the misconduct in the context of an employees position and job duties. The Table of Penalties in the Departmental Manual (370 DM 752) provides a non-exhaustive list of types of misconduct for which the Agency can discipline employees. 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. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. 3 Douglas v. Veterans Administration, 5 M.S.P.R. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. If the proposal in your case is grossly above the range suggested in the table it is imperative that you point this to management. In addition, actions . Non-SES probationary employees generally cannot appeal an adverse action to the MSPB except in very narrow circumstances. PDF The Douglas Factors 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. 2278 0 obj <>stream Note: If the employee is in a bargaining unit, your Agency should have alternate language for these paragraphs. Douglas Factors - Postal Reporter Our DC-Metropolitan Based Law Firm Specializes in Employment, Security Clearance, and Retirement Law. So, if they have been convicted of violating the law, say stealing, this factor will likely cut against them and lead to a more severe penalty. 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. Your representative, if an agency employee, must contact his or her immediate supervisor to make advance arrangements for the use of official time. [;C;@){ :@H- - 3VLL L.L.q^h8N),H3q30 ( Ultimately, managers are people too. Can someone help me present the Douglas Factors to management? The Douglas Factors - United States Office of Personnel Management You wont know unless you make it a point of conversation, but in many instances its worth the effort to approach management with creative alternatives, since there is very little downside. 6.Further Charges and Specifications: Repeat above format 7.Efficiency of the Service Rationale Paragraph(s): This paragraph typically includes the answers to the following questions: What rule(s) was (were) violated? Yes___ No____If the particular offense at issue is not in the guide, you should review the guide for similar, related offenses. If the person signed for receipt of the letter include that information. You have the right to reply to this proposal orally and/or in writing and furnish any evidence in support of your reply within fifteen (15) calendar days after the date you receive this proposal. Hiring an experienced federal employment law attorney for your oral reply can pay for itself many times over. Consistency of the penalty is shorthand for: is the action we are taking in your case the same or similar to other cases with similar facts. This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty. 5'@ (Vl]\W[w:R`u>l/;EVj@n~: `;)v O Qf$CA| )cPp0cP?l1#`:}6X93q/r@ Oc2H))!Y6I $ (P disciplinary situations. Cir. The national media picked the story up, and it was very detrimental to the agency. Certain qualifying cmployees are entitled to challenge an adverse action to the Merit Systems Protection Board (MSPB). Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. If you were going through a divorce, your child was hospitalized, or a family member had passed away, you should be explaining these mitigating factors to management. A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty. You should not list a factor unless it is relevant. Your absence was not approved by your supervisor. Douglas Factors for Federal Employees - berrylegal PDF NASA DESK GUIDE FOR TABLE OF DISCIPLINARY OFFENSES AND PENALTIES Version 3 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). This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. 502, 508 (1994) (holding that because 31 U.S.C. See Douglas v. Veterans Administration, 5 M.S.P.R. 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official purpose, and the appellants actions were closely analogous, it would be inappropriate for the Board to scrutinize whether the agencys penalty of a 30-day suspension was warranted). Discipline can range from letters of reprimand to short suspensions. The table of penalties can be a useful guide to an agency's wishes, but remember, the Merit Systems Protection Board has the final say. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process. One way to sway this factor in favor of an employee is to be contrite apologetic and to admit the misconduct you engaged in. Whether you use two charges in this case will depend upon the evidence available. You neither came to work nor did you call in your absence. A Table of Penalties is a list of . Sample: Specification #1. Generally, this factor comes into play when an employees alleged misconduct has been reported by the media (press or television). This table should be available to you as an employee. However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty. -What kind of recovery can I get in my discrimination case? 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. PDF Douglas Factors In Depth - Branch 38 NALC The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. This Douglas factor generally refers to the connection between the seriousness of the allegation and the position that a federal employee holds. Weigh Douglas Factors in disciplinary cases - Ask The Lawyer If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process. A well presented reply to theproposed discipline can lead to substantial mitigation. a. For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employees outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty. generadores de diesel precios As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty. The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). %PDF-1.5 % Leverage the Douglas Factors properly at your Oral Reply, and you may avoid a costly MSPB Case Later. Therefore, you should anticipate factors the deciding official may focus on and structure your presentation accordingly. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. The twelve factors, as determined by the Merit Systems Protection Board, that must be considered in any federal employees discipline case are: Now, lets take a closer look at each factor individually. The consistency of the penalty with any applicable agency table of penalties; 8. How the factors will be applied in your disciplinary case depends on the specifics of your case. A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction. If you present evidence to management that you are enrolled in AA and also let managementknow you are willing to agree to provide evidence of your continued attendance or proof you are engaged in other counseling, management may find that satisfactory on its own. 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. Relevant? % The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . 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 ? 280 (1981) These factors are used to explain why the penalty was chosen. Conclusions and vague statements do not hold much weight with third parties. For instance, if the federal employee at issue has worked for the federal agency involved for 30 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline. The Douglas Factors include: 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. Once an employee has a disciplinary record, its harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved.
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table of penalties douglas factors