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MSPB speaks out on employers’ documentation duties

On Behalf of | Apr 5, 2021 | Federal Employment Law

The Merit Systems Protection Board is a federal agency with impressive scope and powers.

In a nutshell, notes an authoritative legal source on employment law and workers’ rights, the MSPB is tasked with “protecting the integrity of the federal merit systems and the rights of individuals within those systems.”

That mandate centrally applies to the board’s oversight and rulings relevant to employers’ disciplinary actions taken against federal workers alleged to be underperforming or unduly troublesome.

Any such determination contains an element of subjectivity, of course, and a key MSPB role is to objectively gauge the facts in appellate matters. The board must often consider in a given case whether a worker’s job demotion, suspension or termination was both fair and lawful.

Candidly, it often isn’t, as borne out by many board rulings issued in employment disputes. Employers sometimes punish select workers for being outspoken on matters they are legally privileged to address. Individuals who cite company wrongdoing via whistleblower actions sometimes face stern reprisals grounded in unlawful retaliation.

Recently published MSPB comments spotlighted the key role that medical conditions can play in meted-out disciplinary actions targeting underperforming workers.

The board specifically underscored this: Even though a particular removal action might seem reasonably warranted, an employer that first made good-faith attempt to accommodate a worker’s known injury or disease might continue to have legal duties following a job termination.

Here are two key points stressed by the MSPB:

  • A firing agency suspecting that a medical condition is playing a role in job termination must timely advise an affected worker of his/her potential eligibility for disability retirement; and
  • The agency must actually file for benefits on behalf of a worker unable to do so

A federal worker with questions or concerns regarding adverse federal employer actions relating to alleged subpar performance or behavior can contact a proven employment law legal team for advice and diligent representation.


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