| Read Time: 4 minutes | Federal Employee Rights

In 1981, seven people were fired by four different government agencies. Each believed that the punishment far outweighed the crime. Initially, the MSPB (Merit Systems Protection Board) disagreed, but upon further review, it realized these people were correct. The outcome of Curtis Douglas vs. Veterans Administration was the Douglas Factors.

The Douglas Factors is a set of twelve rules designed to protect federal workers from being overly penalized for offenses. Below is a list of questions that must be asked before a federal employer pursues an adverse action.

  1. How Serious Was the Offense, and What Was the Intent?

Employers must consider the context of an offense. Take dishonesty, for example. Lying to your boss is never good, but the severity of the lie matters. Did someone, for example, tell their boss that they were almost done with something they hadn’t started, or were they in the middle of a criminal investigation and lied about evidence? According to the Douglas Factors for federal employees, employers cannot penalize both actions the same.

Intent also matters. Perhaps there was a leak of sensitive information. This is a serious offense, but what led to it? Was it a sincere mistake on someone’s part, or was that person using this leak for personal or financial gain? Either situation requires attention, but one is clearly more severe and dishonest than the other.

  1. How Prominent of a Position Does the Offender Have?

Sometimes, the outside impact of an offense is just as important as the offense itself. Someone at high levels of government must be above reproach, especially if they interact with the public. An offense at the highest levels brings more attention and scrutiny to the problem, and the offender may be in danger of a harsher penalty.

Alternatively, this consideration protects someone lower in the organization. Since their offense will probably be overlooked by those outside the organization, they may receive a lighter adverse action.

  1. What Is the Offender’s Disciplinary Record?

Someone with a history of breaking rules and causing problems will probably receive a greater penalty for their offense. Likewise, someone with a clean record and only one infraction should receive a lighter penalty.

  1. What Is the Offender’s Positive Record?

Employers must consider a worker’s performance alongside their disciplinary history. Beyond simply having no prior record of offenses, a worker may have a stellar performance record. A great worker is an asset, and they have proven their trustworthiness and loyalty. Therefore, they may be able to receive a lighter penalty under the Douglas Factors.

  1. Does the Offense Affect Job Performance?

When someone breaks the rules, their behavior must be addressed. However, sometimes the offense is unrelated to the job at hand. After being accused of an offense, the worker may still be able to perform their job perfectly. Moreover, they could still have the faith and confidence of their supervisors. Continued quality performance could allow them to receive a lighter penalty.

  1. Is the Penalty Consistent Across Workers?

When observing others who were punished for the same offense, there should be consistency. If an offender’s penalty seems out of balance, an employer could be guilty of going against the Douglas Factors.

This standard can help mitigate bias. By ensuring that equal offenses receive equal punishment, it helps eliminate personal prejudice from affecting outcomes.

  1. Is the Penalty Consistent with the Table of Penalties?

To keep their rules and penalties consistent, many organizations have their own table of penalties. These tables work as a simple reference point where Infraction A results in Penalty B. If an employer is penalizing far beyond organizational standards, they may be guilty of going beyond the Douglas Factors as well.

  1. What Was the Offense’s Impact on the Agency?

Employers should consider whether someone simply broke a rule or if, by breaking that rule, they somehow damaged the organization. Damage could come in the form of negative press and a souring of public perception. It could also result in creating a bad reputation among other agencies. If the offense was that severe, the offender could face a large penalty. If not, the Douglas Factors require that the penalty should match the offense’s impact.

  1. How Clear Are the Agency’s Directives?

Sometimes, people break the rules simply because they don’t understand the expectations. If an employer does a poor job of making its regulations clear, its workers should not be held accountable for accidentally breaking them.

  1. What Is the Rehabilitation Potential of the Offender?

This question can be considered on multiple levels. First, is the penalty likely to help the offender learn from their mistakes and do better, or will it simply drag them down?

Also, employers must consider the offender’s behavior during the disciplinary process. If the accused appears contrite, cooperative, and apologetic, the employer may consider a lighter punishment. However, if the accused continues to show sneaky, dishonest behavior, the employer could potentially choose a harsher penalty.

  1. What Were the Circumstances Around the Offense?

Sometimes, people make bad choices for selfish gain. Other times, they may be under stress, and they aren’t thinking clearly. According to the Douglas Factors, an employer must consider the mitigating circumstances surrounding the offense. For example, were there abnormal tensions at work? Perhaps the employee was suffering from mental illnesses or a personality disorder. Maybe they were being harassed, and they lashed out. On such occasions, the offender could receive a lighter sentence.

  1. Can an Alternative Penalty Yield the Same Results?

Finally, an employer must consider the outcome of a penalty. Is it necessary for them to jump straight to a certain adverse action, or could another option be just as effective?

Speak with an Attorney

If you’re facing a suspension, demotion, or termination from a federal job, seek the services of a good attorney. You have the right to challenge your accusation, and you may be represented. A lawyer can investigate your case, and if they see violations of the Douglas Factors, they can stand up for your rights.

If an employer has ignored the rights under the Douglas Factors for federal employees, reach out to our firm today. We can give you a free consultation and overlook the facts of your case. You can contact us online or call us at (888) 898-9902.

Author Photo

Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.

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