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Disciplinary actions don’t all work the same way

On Behalf of | Apr 5, 2022 | Federal Employment Law

What are disciplinary actions? Some of the actions that commonly come to mind are suspensions, demotions and removals. However, the truth is that while “discipline” means one thing in lay terms, it means something entirely different in the law.

There are two key statutes that govern disciplinary actions for federal employees. One describes “adverse actions.” The other addresses “performance-based” actions. From an employee’s standpoint, the outcomes of these actions may often appear similar, but the differences are important.

Key differences between performance-based and adverse actions

As noted earlier, the differences between performance-based and adverse actions tie back to federal statutes. The rules for performance-based actions are defined under 5 U.S.C. chapter 43, and the rules for adverse actions are defined under 5 U.S.C. chapter 75.

There are many similarities between these statutes, such as the rights they grant you to respond and appeal. But as the U.S. Merit Systems Protection Board (MSPB) points out, there are many important differences that can affect your case:

  • Agencies may demote or remove employees based on either statute. However, chapter 43 does not allow agencies to suspend employees.
  • Under chapter 43, agencies must provide employees time to improve their performance before they can face demotion or removal. However, the agencies are under no obligation to provide formal training during this Performance Improvement Period (PIP).
  • Chapter 43 demands that agencies conduct performance reviews according to the standards it has already put in place. These standards are supposed to provide objective criteria for the performance review.
  • Actions taken to correct misconduct often rely upon chapter 75. However, agencies may also lean on chapter 75 for some performance-based actions. Again, these actions differ from chapter 43 actions in many ways, and the differences are worth a closer look.

A closer look at performance-based actions

In one of its published studies, the MSPB breaks down a whole series of differences between performance-based actions filed under chapter 43 versus those that rely on chapter 75. Interestingly, the MSPB addresses 14 factors for performance-based actions filed under these chapters. Of these 14 factors, the two chapters share only three. Eleven differ from one chapter to the next.

As a result, it’s important to understand which chapter an agency is using because that chapter affects:

  • Whether your poor performance affects a critical or non-critical part of your job
  • Whether anyone must prove that your performance is hindering the agency’s performance
  • The burden of proof the agency must meet to support its findings
  • Who can make the decision to discipline you
  • Whether the agency must use the Douglas factors to determine the seriousness of any penalties

Why do the differences matter?

The list provided above only begins to address the differences between the two types of performance-based actions. Despite the fact it’s incomplete, the list should help you understand why it’s important to understand the nature of your discipline before you respond to it.

This is because the rules for “discipline” refer to two different things: adverse actions and performance-based actions. These actions lean on different statutes. Those statutes introduce different sets of rules. To make as strong an argument as possible, you need to understand the underlying rules.


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