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MSPB: Elements of a Charge of Failure to Follow Leave Procedures

MSPB: Elements of a Charge of Failure to Follow Leave Procedures

Federal Agencies that take an adverse action against a Federal Employee based on “failure to follow leave procedures” will have to prove certain elements of that charge before the Merit Systems Protection Board (MSPB).

An Agency may take adverse action against a Federal Employee for failure to follow leave procedures so long as the federal employee is clearly on notice of the leave procedure, the leave procedure is legitimate, and the federal employee has been informed of the likelihood of discipline for continued failure to comply with the leave procedures.

When the Agency takes action against the Federal employee based on an inappropriate or unlawful leave requesting procedure (use of overly restrictive leave restriction letters, etc), the MSPB has the authority to mitigate or reverse the Agency’s decision.

Agencies often couple charges of AWOL with charges of failure to follow leave procedures. If the Agency uses the same specifications to support a charge of AWOL and a charge of Failure to Follow Leave Procedures, the issue of merger arises. If you have been charged with both AWOL and Failure to Follow Leave Procedures for the same instances, you should consider discussing your situation with a lawyer familiar with the MSPB.

If the Agency’s charges are based on an alleged improper denial of Family and Medical Leave under the FMLA, then the Agency bears the burden of proving before the MSPB that, in taking a leave-related disciplinary action, it properly denied an eligible employee leave under the FMLA.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If your Agency has taken an adverse action against you using leave-related charges such as AWOL, or Failure to Follow Leave Procedures, or based on an improper denial of leave under the FMLA, contact an attorney familiar with MSPB appeals.


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