ADVERSE ACTIONS
Sections
Appendix A - NIST Alternative Discipline System
Appendix B - Violence in the Workplace
10.11.01
PURPOSE
This subchapter outlines the policy and procedures of the National
Institue of Standards and Technology (NIST) for implementing Title 5, Code
of Federal Regulations (CFR), Chapter 752, Adverse Actions; Title 5 CFR
315, Subpart H, Probation on Initial Appointment to a Competitive Position;
and the Department Administrative Order (DAO) 202-751 which also contains
the Table of Offenses and Penalties (available by accessing: http://dms.osec.doc.gov/cgi-bin/doit.cgi?204:112:e372fa640e1c91c71adb173ab597387581792de3d6f5fc75c3a21d45fab1e9c2:102.)
10.11.02
SCOPE
The primary focus of this subchapter is conduct-related adverse actions,
including but not limited to removals, suspensions, reductions in grade
or payband, reprimands, and admonishments.
This subchapter does not cover performance-related removals, reductions in grade, pay, or pay band which are covered under Title 5 CFR 432 on performance or furloughs for more than 30 days which are covered by the reduction-in-force regulations contained in Title 5 CFR 351 or furloughs for 30 days or less which are covered by Title 5 CFR 752.
This subchapter applies to all NIST employees except where in conflict
with provisions of a collective bargaining agreement.
10.11.03
POLICY
When an employee's conduct warrants adverse action, such action must
be administered in a timely, constructive, consistent and progressive manner
which promotes the efficiency of the federal service.
NIST endorses a policy of progressive discipline, where feasible, including admonishment, written reprimand, suspension, reduction in grade or payband and removal.
NIST also endorses a policy of alternative dispute resolution (ADR) which involves the use of non-traditional disciplinary techniques (see Appendix A).
It is NIST policy that the decision to remove a probationary employee
must be made at least one level above the first-level supervisor.
10.11.04
DEFINITIONS
a. Admonishment - Oral or written notice to an employee addressing
unacceptable conduct, stating what must be done to improve and warning
that failure to correct the problem may result in more serious action by
the supervisor.
b. Days - is defined as calendar days.
c. Discipline - A corrective measure or measures intended to maintain the efficiency of service and encourage imporvement in employee conduct.
d. Grade - A classification level inder a position classification system.
e. Pay - The rate of basic pay fixed by law or administrative action for the position held by the employee, that is, the rate of pay before any deductions and exclusive of additional pay of any kind, including but not limited to supervisory differential, overtime, night work, and hazard duty pay.
f. Payband - A classification level under the NIST Alternative Personnel Management System (APMS).
g. Removal - An involuntary separation from the federal service.
h. Reprimand - Written notice to an employee addressing unacceptable conduct, stating what must be done to improve and warning that failure to correct the problem may result in more serious action by the supervisor. The written reprimand is placed in the employee's Official Personnel Folder for a period of one year. The supervisor has the discretion to remove the reprimand from the employee's Official Personnel Folder at any point during this time period.
i. Suspension - An involuntary non-duty status without pay or
work for diciplinary reasons.
10.11.05
AUTHORITY
Title 5, United States Code Chapter 73 and 75 and Title 5, CFR part
731, 735, and 752 constitute the regulations governing adverse actions.
10.11.06
RESPONSIBILITIES
a. Supervisors and managers are responsible for:
(1) Dealing with problems as they surface and proposing adverse actions in a timely manner or deciding on adverse actions based on the delegation of authority within the Organizational Unit (OU);
(2) Keeping the personnel generalist and/or employee relations specialist (at Boulder, Human Resources Advisor, MASC) servicing their organizations advised of potentially adverse situations and consulting with the HRMD to ensure that the technical requirements of law and regulations have been met;
(3) Receiving certification of regulatory compliance from the Human Resources Manager or designee.
b. The Human Resources Management Division is responsible for:
(1) Keeping supervisors and managers informed of adverse action laws, regulations, DoC and NIST policies and procedures;
(2) Advising supervisors and managers in determining appropriate action to be taken in individual cases;
(3) Reviewing and certifying that adverse actions conform with federal laws, rules, and regulations, DoC and NIST policies, and follow good personnel practices; and
(4) Advising employees who are involved in adverse actions of their rights.
c. Employees are responsible for:
(1) Learning and complying with the federal laws, rules, regulations, and DoC and NIST policies governing behavior and conduct of NIST/federal employees;
(2) Conducting themselves, on and off duty, in a manner consistent with federal laws, rules, and regulations and DoC and NIST policies concerning behavior, and in a way which reflects well on themselves, NIST, and the federal workforce;
(3) Obtaining, at their own expense, an attorney or an individual of their own choosing to represent them in any adverse action, if they so desire;
(4) Reviewing the official adverse action file containing the documents, statements, evidence, and other materials relied upon to support the proposed adverse against them;
(5) Responding to the charge(s) within the time period allowed; and
(6) Initiating a grievance or appeal as appropriate within the time
period allowed if they feel that the adverse action is improper.
10.11.07
PROCEDURES
a. Consult with the Human Resources Management Division
Those with delegated authority to act as described above who are considering taking an adverse action must consult with the HRMD staff. The earlier this consultation occurs in the process the better so that the HRMD staff can provide advice in fact-finding, weighing the evidence, and setting the penalty.
At Gaithersburg, the contact point is the Human Resources Specialist or Employee/Labor Relations Specialist for the servicing organizational unit (for a list of servicing assignments, consult the HRMD website); at Boulder, the contact point is the Human Resources Advisor at MASC.
b. Suggest assistance from the Employee Assistance Program (EAP)
At any time when a supervisor has a reasonable belief that an employee's
unacceptable conduct may be caused in whole or in part by personal problems,
including but not limited to family issues or substance abuse, the supervisor
should suggest that the employee seek assistance through the NIST Employee
Assistance Program.
10.11.08
EMPLOYEE RIGHTS
Except for unusual circumstances set forth in 5 CFR 752.401(c), (i.e.,
probationary employees, excepted service non-preference eligible employees
with less than two years of current continuous service, temporary employees),
employees are entitled to the following rights in conjunction with a proposed
removal, suspension, or reduction in grade, pay, or payband.
a. Right to advance written notice
The employee must be told in writing in advance what action is proposed and the specific reasons why. The advance notice describes the rights they have in connection with the action. The advance notice period may vary. Suspensions of 14 days or less have a 24-hour minimum advance notice period. Suspensions of more than 14 days, reductions in grade, pay, or payband, and removals require a 30- day advance notice period unless the agency has reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment may be imposed and is proposing a removal or suspension.
The notice must tell the employee about their rights in connection with the action as follows:
(1) Right to Review Evidence - The employee is entitled to review the material relied on to support the action detailed in the proposal notice.
(2) Right of Employee to Reply - The employee is entitled to have a reasonable amount of time to answer orally and/or in writing and to furnish affidavits and other documentary evidence in support of the answer. This period of time must not be less than 24 hours for suspensions of 14 days or less, and not be less than 7 days for suspensions of more than 14 days, reduction in grade, pay, or pay band.
(3) Right for Official Time - The employee has the right to a reasonable amount of official time to review the material relied on to support the proposal notice and to prepare an answer and to secure affidavits. NIST policy defines reasonable as up to eight hours.
(4) Right to Representation - The employee is entitled to be represented during the action by an attorney or other representative of their choice at their own expense.
(5) Right to a Written Decision - The employee is entitled to
a written decision stating what action will be taken (it may be the same
or less than what was proposed, but not more severe) and the reasons why.
The deciding official must always consider the employee's answer, and should
also show how any mitigating or aggravating circumstances were considered
in setting the penalty. Finally, the decision notice must tell the employee
how to seek redress.
10.11.09
AVENUES OF REDRESS
a. Reprimands and Suspension of 14 Days or Less
An employee against whom this type of adverse action is taken is entitled to file a grievance through the administrative grievance procedure or, for bargaining unit employees, the negotiated grievance procedure.
b. Suspensions of More Than 14 Days, Removals, Reductions in Pay, Payband, Grade
An employee against whom this type of adverse action is taken is entitled to appeal to the Merit Systems Protection Board under Section 7701, Title 5 or, for bargaining unit employees, to arbitration.
c. EEO Complaint Process
If an employee believes that an action is taken against them based on race, color, religion, sex, national origin, age, or disabling condition they may seek redress through the NIST Equal Employment Opportunity complaint process. Details about the EEO complaint process may be obtained from the Director, NIST Civil Rights Office.
Employees may seek only one path of redress either through the EEO complaint process or the grievance/ appeal/abitration process. Employees must elect which one to pursue. For additional information on these routes of appeal, employees should seek assistance from their servicing employee relations specialist at Gaithersburg or the Human Resources Advisor at MASC.