Discipline Alternatives: Too Good to be True?

By Deborah Hopkins, October 16, 2019

What if…

• You could discipline an employee in a way that didn’t cause you more work?
• You could discipline an employee and they couldn’t file a grievance or complaint?
• The discipline you issued actually helped other people?

Believe it or not, there’s a way to make all these dreams come true. You see, in addition to traditional discipline (reprimand, suspension, demotion, and removal), the MSPB, for years, has blessed alternative arrangements that agencies and employees agree to, that carry the weight of traditional discipline but are not traditional disciplinary actions. These are called discipline alternatives.

As former MSPB Chairman Neil McPhie once put it, “The merit principles encourage agencies to be effective and efficient in how they use the Federal workforce. This includes the responsibility to address misconduct in a manner that has the greatest potential to prevent further harm to the efficiency of the service. Under the correct circumstances, alternative discipline may be the most effective method for addressing such misconduct.” (Emphasis added.)

One of the most popular discipline alternatives is the Reprimand in Lieu of a Suspension (RLS). We first learned about these courtesy of the United States Postal Service, which back in the 1990s negotiated suspensions OUT of their master contract and replaced them with RLS.

That’s right, forget about suspensions because there’s no evidence they work anyway. In fact, when you suspend an employee for misconduct, the supervisor and co-workers have to pick up the slack while the suspended employee sits at home doing nothing.

Here’s how an RLS works. If a supervisor determines that an employee deserves to be suspended, let’s say for 5 days, the supervisor proposes the 5-day suspension. But at the bottom of the proposal letter there’s an additional section with an employee signature line, that read something like this:

By my signature below, I accept responsibility for this act of misconduct. I acknowledge that discipline is warranted and accept a Reprimand in Lieu of a Suspension as offered to me by My Manager. I understand that the agency will consider this Reprimand in Lieu of a Suspension as equivalent to the proposed suspension for the purpose of progressive discipline should I engage in future misconduct. By accepting this Reprimand in Lieu of a Suspension I agree not to file a complaint or grievance about this action.

Pretty cool, huh?

There are other alternatives you might want to consider as well. Here are a few, in no particular order.

• Paper suspension or weekend suspension: With this approach, there is no loss of pay, but the agreement is considered to carry the weight of a suspension.
• Non-sequential suspension: Instead of a 5-day suspension where an employee loses half a paycheck, suspend the employee one day per week for 5 weeks.
• Leave donation: The employee donates annual leave to a leave bank or leave transfer program. For example, if the proposed suspension was 3 days, the employee donates 3 days of annual leave.
• Community service: This may be a hard one to enforce, but the employee may agree to perform 24 hours of community service instead of a 3-day suspension.
• LWOP: Carry the employee on LWOP for the amount of time the agency would have suspended him. Because it is coded as LWOP instead of a suspension, there will be no permanent record of a disciplinary action.
• Training or support services: Require the employee to attend training or go to EAP in lieu of a suspension, if the type of misconduct matches up with these options.
• Last chance agreement: Hold the penalty in abeyance for two years. If the employee does not engage in misconduct during the two years the proposal goes away, but if the employee violates another workplace rule during those two years, the penalty immediately goes into effect.

Remember, in each of these cases you are cutting a deal with the employee and offering the discipline alternative in exchange for the employee waiving her right to appeal or file a complaint about this discipline. If you don’t like it, then forget about it because you don’t have to do it. But I promise, these discipline alternatives will make your life much easier.

There are more discipline alternatives, which we’ll discuss in October 24 webinar Discipline Alternatives: Thinking Outside the Adverse Action. If you’re interested, I hope you’ll join us. Hopkins@FELTG.com