Constructive suspension can feel like being in limbo. You are uncertain when you will return to work and how you will make ends meet. Fortunately, federal employees may file a constructive suspension appeal with the Merit Systems Protection Board (MSPB).
This blog post will delve into the concept of constructive suspension law for federal employees and highlight the appeal process. It’s important to remember that this information is not a substitute for legal advice. If you find yourself in such a situation where you have been constructively suspended, consulting with an MSPB attorney with expertise in federal employment law is crucial.
Get started by calling (800) 801-0598 or sending us an online message today.
What Is a Constructive Suspension?
The U.S. Merit Systems Protection Board defines constructive suspension as enforced leave where an employee is placed on non-duty and non-pay. Unlike a formal suspension, where an employee is notified in writing of the charges against them and placed on leave with pay pending an investigation, a constructive suspension occurs more subtly. The lack of clarity and formal process can be incredibly frustrating for employees.
Here’s what defines it:
- Involuntary absence. The agency compels the employee to be absent from work for more than 14 days, often citing reasons like potential safety concerns or ongoing investigations.
- Loss of pay and benefits. The employee is not formally suspended yet cannot work and loses wages and benefits.
- No formal charges. The employee isn’t formally charged with misconduct or allowed to respond to allegations.
It is important to note that a constructive suspension can only occur when the agency – not the employee – initiates the absence. If the employee voluntarily initiates an absence, there is no constructive suspension.
Common Scenarios Leading to Constructive Suspension
Several situations can lead to a constructive suspension for federal employees.
Here are some examples:
- Being placed on administrative leave pending an investigation;
- The agency denies a reasonable request for modified duty due to a medical condition or disability; or
- The agency creates a hostile work environment that makes it impossible for employees to perform their duties.
It’s important to note that not all involuntary absences constitute constructive suspensions. For instance, if an employee takes unpaid leave for personal reasons, this wouldn’t be considered a constructive suspension.
Constructive Suspension Law for Federal Employees
Various laws, regulations, and case law govern federal employment rights. Under the Civil Service Reform Act of 1978 (CSRA), most federal employees may appeal various personnel actions and agency decisions.
However, the CSRA authorizes only the Merit Systems Protection Board (MSPB) to hear cases about removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or less.
Appealing a Constructive Suspension
If you believe you’ve been constructively suspended, you have the right to appeal this decision. Here’s what you need to know about the MSPB appeals process.
1. Time Limit
You have a strict deadline to appeal a constructive suspension. You must file your appeal with the MSPB within 10 business days from the date the constructive suspension began. Don’t miss this deadline!
2. Where to File
Locate the MSPB regional or field office serving the area where you worked when the suspension started. For appeals related to retirement benefits or suitability determinations, file with the office serving your current residence. Refer to Appendix II of Part 1201 of the MSPB’s regulations for a complete office listing.
3. What to File
While filing, you need a few key documents:
- Notice of proposed action (if provided),
- Agency’s decision to suspend you (if any), and
- SF-50 or similar personnel action notice (if available).
Avoid submitting unnecessary documents. The agency will file a complete record later.
4. What Happens After You File Your Appeal?
While filing your appeal is the first step, it’s just the beginning of the process. Both you and the agency will have the chance to submit evidence and arguments to support your positions. This evidence might include documents, witness statements, or anything else relevant to your case.
You will have additional time to gather this evidence, so don’t wait for additional documents before filing your appeal. Don’t forget that the MSPB has a strict 10-day filing deadline.
5. Representation
You can choose a representative (lawyer, friend, etc.) to assist you during the appeal.
Or you may represent yourself. You must designate your representative in a writing signed by yourself.
The appeals process can be challenging to handle on your own, and seeking legal guidance can maximize your chances of a successful outcome. If you’ve been placed on a constructive suspension, it’s crucial to gather evidence and seek legal counsel to understand your options.
6. Burden of Proof
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 their 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 they were able to work within certain restrictions, that they communicated their willingness to work, and that the agency prevented them 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 they declined it.
If the agency meets its burden of production, then the appellant must present sufficient rebuttal evidence to meet their 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.
Tackle Constructive Suspension Head-On
Constructive suspension can be incredibly stressful for federal employees. Losing income and benefits affects not only you but your loved ones as well. If you have been constructively suspended, remember you have rights and options. Don’t face uncertainty alone.
Contact Pines Federal today for a consultation. Our attorneys have extensive experience representing federal employees, like yourself, before the Merit Systems Protection Board (MSPB). We are here to help in your time of need.
Contact us online or call (800) 801-0598 today for a consultation.