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. yQB9RR_C}xxx+i$yyyzy^*UTTq^yu! If the offense is related to duties that are at the heart of an employees position, penalties may be more severe. PDF The Douglas Factors - Energy <> The Douglas factors come from a seminal employment case titled,Douglas v. VeteransAdministration, 5 MSPR 280 (1981). The FAA's Table of Penalties recognizes the use of dissimilar offenses in prior discipline in determining the penalty. Explanation, if relevant: (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. Table Of Penalties Douglas Factors - aaaawintvcapdavid.link 1999). Sometimes management may misapply factors, or misconstrue them. 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. Factor 12: The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 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. For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced. Before sharing sensitive information, make sure youre on a federal government site. Factor: Employee's . By contrast, the Douglas Factors are well known by managers becausethey have to reference and articulate how those factors interplay with the specifics of every disciplinarycase they preside over. the relevant factors, in its decision letter, testimony, and other submissions can have a significant impact on the board's ruling. The Douglas Factors The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining an appropriate . For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar. The more notorious the offense you commit the more severe the discipline you will face. Usually, the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by the Agency between different federal employees. 49 0 obj <> endobj What if I do not agree with managements analysisof a specific Douglas Factor? But they may refuse to. 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. See Douglas v. Veterans Administration, 5 M.S.P.R. %PDF-1.5 % While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). In that case, the Merit Systems Protection Board laid outthe twelve factors that need to be considered in any federal employees discipline case. The 12 Worst Types Table Of Penalties Douglas Factors Accounts You Follow on Twitter 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. 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. PDF Douglas Factors * in deciding disciplinary punishment of federal - AELE You may make arrangements for an oral reply by contacting (Deciding Official's Name) at (Deciding Official's Telephone). This factor looks to the status of the employee. Discipline can range from letters of reprimand to short suspensions. Offenses related to intoxicants. In particular, the lack of clarity argument refers to the rules governing the underlying allegations at issue. to write lettersfor you that attest to your diligence and good behavior at work, that will help tilt that factor in favor of mitigation. 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. 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. 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. Additionally, your coworkers have their own assignments. Reston, VA 20190. In some instances this may mean pointing out points of analysis or facts to management if they are unaware. 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. Most importantly, employees need to be aware that once they have a disciplinary record, it makes defending new discipline cases much more difficult. Consistency of the penalty with any applicable agency table of penalties; (8) The notoriety of the offense or its impact upon the reputation . 10.Right to Reply Paragraph: Sample: This notice is a proposal and not a decision. Douglas Factors in Federal Employment - InformedFED Many federal agencies maintain tables of penalties that detail discipline options for common offenses. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. Federal government websites often end in .gov or .mil. removal). %%EOF generadores de diesel precios generadores de diesel precios Home Realizacje i porady Bez kategorii generadores de diesel precios Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. Managers and supervisors should properly document the employee misconduct. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties. This means you should provide objective facts to support your arguments if you can. Factor 4: The employees past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. For the employee, how you articulate and present the facts of yourcase greatly affect how management applies the Douglas Factors. A knowledge of the Douglas Factors is helpful for both federal employees and managers. -What kind of recovery can I get in my discrimination case? Postal Service, 634 F.3d 1274, 1282 (Fed. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. Conversely, aggravating factors are those that suggest the discipline be sustained or even increased. The Douglas Factors . Note. A deciding official must consider specific factors in determining the reasonableness of the penalty. Additionally statements from managers or co-workers as to your ability and integrity will be helpful. 1 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Factor: Notoriety and impact 3. How do you handle these aggravating factors? 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. The Douglas Factors explained, the keys to a discipline case - Ivancie Law This is a very fact specific factor and will depend on the managers opinion as much as the employees misconduct. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . Heres what anyone who works for the federal government needs to know about the Douglas Factors. %PDF-1.6 % Merit Systems Protection Board still follows today. ^K[i>P+hvSbfpNK"ly(O$qUGI']}Oy"VF>arP,NHD'9Ets/'n[?e>?=}2~H8\pa^j[u})Uq,mE?}EUWY O\[!ehbL% Sy wmdbwE,\VEwZXjy-$DG>[xmb[9O+gwY.qGVP5r#0av#a.vv_cvqWrbeEnL)?:9!!49 @h=bk8;&j. A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. 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. 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. 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. A big question managers have to ask themselves is: after the misconduct that has occurred can I confidently bring the employee back? A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. This is because it puts you on notice of the penalties which is factor #9, below. hb```f``2c`a`,c`@ r, ^Ma 8 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. * Douglas v. Veterans Administration, 5 M.S.P.R. . 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. This has often been considered one of the most important Douglas factors by the MSPB. If an employees misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty. Govexec.com . Note that: accruing multiple instances of discipline can lead you on the fast track to removal from federal service. These factors are: 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. For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisorsuch as Senior Executive Service [SES]) or type of position (e.g., law enforcement) as an aggravating factor. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. This Douglas factor is one of the most often used arguments our firm uses in support of mitigation of a disciplinary penalty. For example, if an employee has no past disciplinary record, factor #3 doesnt hurt the employee, and can actually become a mitigating factor. Management has likely even required you to review the table and sign a form asserting your knowledge of it. Determining the Penalty - United States Merit Systems Protection Board @$0$6dd{8Q$AUzw43X!_>=+mi!d+iy+bn%'P Tj[Q9BoVbHBUL8c X>S[ bT@ `-' , 8Z7K2 (,B(AfZ generadores de diesel precios This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. 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. This factor is listed last because this consideration should occur after a thorough analysis of all the other Douglas Factors. In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. The more notice you have of the prohibition on certain conduct the strongerargument management has for issuing discipline if you engage in that misconduct. consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the . 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. Yes___ No____Potential for rehabilitation can be both a major aggravating and mitigating factor. This Factor takes mitigating circumstances into account. Starr Wright USA is the nations leading provider of FEPLI. What every federal employee facing discipline should be familiar with: The Douglas Factors. 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. Other times it may mean providing some evidence to management to further support your position. Explanation, if relevant: (4) The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.Relevant? Managers must take an employees propensity for rehabilitation into account. what extent, the "Douglas" factors come into play or how egregious the act was. Cir. Sample: If you need assistance in dealing with any personal matters, the Employee Assistance Program (EAP) is available to provide confidential counseling services. This Douglas factor is important and we use this argument in our representation of federal employees. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. 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). Only relevant factors must be included. Opinions expressed in this article are for informational purposes only and do not constitute legal advice. PDF Nasa Desk Guide for Table of Disciplinary Offenses and Penalties The consistency of the penalty with any applicable agency table of penalties; 8. The nature and seriousness of the offense, and its relationship to the employee's . We are all human, we all make mistakes, how you handle those mistakes speaks volumes about your character. Sample 2: You have the right to review the material relied on to support this proposed removal. 280 (1981) These factors are used to explain why the penalty was chosen. Factor 6: Consistency of the penalty with those imposed upon other employees for the same or similar offenses. 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. There are certain standards of behavior and conduct expected of employees by our external and internal customers. After waiting at least 30 days from the issuance of the proposal notice, a deciding official will issue a decision letter either sustaining the charges and penalty, or reducing the penalty. Sample 1: I have attached the material relied on to support this proposed removal. Yes___ No____What needs to be done to deter the conduct in the future by the employee or others? -Guide to discrimination law and the EEOC, -Federalemployee's guide discipline cases and the MSPB, -What every federal employee should know - The Douglas Factors. Employees who can appeal an adverse action to the Board have constitutional due process rights. Check with your labor relations advisor. <>>> In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria now known as the Douglas Factors that the U.S. This Douglas factor generally involves how much the public has been advised of a federal employees alleged misconduct. Be clear, terse, and apologetic. Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). 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. past performance). Misconduct is also considered more severe if it is done maliciously or for personal gain. Explanation, if relevant: (12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Relevant? An overlooked factabout the cost of hiring an attorney is that they can actually save you money. If you are a federal manager reading this article, it will help you understand the kind of analysis you should be engaging inwhen you apply the 12 Douglas Factors to the specific facts of a discipline case. On the surface, many incidents of misconduct may seem to be similar. So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. PDF Committee on Oversight and Government Reform U.S. House of Explanation, if relevant: 9.Employee Assistance Program Paragraph: All Federal Agencies have EAP programs. Do not deny the existence of bad facts. The ranges of penalties shown in the Table are those that are considered to be most typical for offenses of the nature indicated. Berry & Berry PLLC. PDF Douglas Factors In Depth - Branch 38 NALC 11700 Plaza America Drive 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. Specification #2. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. !%7K81E8zi. If you are low level employee with no supervisory functions this factor should have some mitigating value. They likely held the same job you holdat some point in the past. In many cases, managers act as deciding officials in discipline cases. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Why can such behavior not be tolerated? 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). Relevant? h[M+}LX,? 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 Managers must apply penalties that are similar to those imposed in like cases. 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. An employee with many years of exemplary service and numerous commendations may deserve to have his/her penalty mitigated. The Douglas factors see 5 MSPR 20 191 provide an adequate and useful . The result will turn on the specifics of your case and the procedural posture as well. If not, include delivery confirmation by the postal or delivery service. By William N. Rudman . While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employees disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employees penalty. 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. Explanation, if relevant: (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.Relevant? Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a law enforcement position. For example, an attorney wont have to expend nearly as much time preparing a really solid oral-reply than they would expend preparing for a full administrative hearing at the Merit Systems Protection Board. Kelsey Asbille Parents, Articles T
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