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MSPB: What is a constructive suspension and can it be appealed to the MSPB?

MSPB: What is a constructive suspension and can it be appealed to the MSPB?

An increasing number of cases before the Board seem to involve the issue of constructive suspension. What is a constructive suspension?

A constructive suspension occurs when, through no fault of her own, an employee is absent from work for more than fourteen (14) days, with a loss in pay. A constructive suspension can only occur when the Agency – not the employee – initiated the absence. If the employee voluntarily initiates an absence, then there is no constructive suspension.

At hearing before the MSPB, the employee-appellant has the burden of proof in a constructive suspension case. That burden is to show, by a preponderance of the evidence, that the absence was involuntary.

A common example of a constructive suspension occurs when a federal employee is found to be fit to return to work by OWCP. When an employee requests work within his medical restrictions, the Agency is bound by policy, regulation, or contractual provision to offer available work to the employee. If the Agency fails to make such an offer, the employee’s continued absence for over 14 days constitutes an appealable constructive suspension.

Once the absent employee makes a non-frivolous allegation that he was able to work within certain restrictions, that he communicated his willingness to work, and that he agency prevented him from returning to work, the burden of production shifts to the Agency. (A burden of production differs from a burden of proof. Under a burden of production, the Agency need only show evidence of a certain point, not prove it to a legal certainty). The Agency’s burden is to produce evidence to show that there was no work available within the employee’s restrictions, or that it offered such work to the employee and he declined it.

If the agency meets its burden of production, then the appellant must present sufficient rebuttal evidence to meet his overall burden of proof.

Another example of a constructive suspension occurs when an employee is suspended, without pay, for more than 14 days while the Agency conducts an investigation of misconduct. Most Agencies have figured that the suspension during an investigation creates an appeal right, and now suspend employees with pay while they are being investigated.

If you are a federal employee, and believe that your employing Agency has constructively suspended you, you should contact a law firm such as the Law Offices of Eric L. Pines, PLLC, that has experience representing Federal employees before the Merit Systems Protection Board (MSPB)