Ask FELTG: Are Douglas Factors now a requirement for all disciplinary actions as opposed to just adverse actions?

May 26, 2020

There’s often confusion around the terms “discipline” and “adverse actions,” because some agencies define those terms differently.

Under the law there are actually two categories of adverse actions — appealable and non-appealable adverse actions. 5 USC § 7103 defines short suspensions (14 days or fewer) as adverse actions, and 5 USC § 7511 defines longer suspensions, demotions and removals as adverse actions. Only those actions in 5 USC § 7511 are appealable to MSPB, so some agencies don’t refer to short suspensions as adverse actions but rather refer to them as discipline. I’m guessing that’s the case with your question.

Douglas is required in appealable adverse actions, but not in non-appealable adverse actions, though the agency still needs to be prepared to justify its penalty to a third party and give some justification for a short suspension. FELTG teaches that Douglas is a best practice to use even for a short suspension because it helps the agency meet the legal requirement to justify its penalty.

To understand more how the Douglas Factors impact the reasonableness of an agency’s penalty, join us for Taking Defensible Disciplinary Actions. But hurry as the event, held over three afternoons, begins next Monday (June 1). For an even deeper dive into discipline and accountability, register for Developing and Defending Discipline: Holding Federal Employees Accountable June 23-25.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.