4 Perceptions (and Realities) about Federal Adverse Actions

Perception 1

It is impossible to fire a Federal employee.

Reality: From FY 2000-2014, over 77,000 full-time, permanent, Federal employees were discharged as a result of performance and/or conduct issues[1].

Perception 2

Agency leaders have no authority to serve as proposing or deciding officials in title 5 adverse actions.

Reality: Title 5 empowers the agency to take an adverse action. If agency leadership chooses to delegate the proposal or decision authority to lower levels, then it cannot interfere with the decision-making process of those delegees. But, prior to the assigned decision-maker’s involvement in a particular case, current statutes permit delegations to be abandoned or modified at will by the agency[2].

Perception 3

There are no legal barriers to firing an employee in the private sector.

Reality: Many of the laws that apply to removing employees in the Federal civil service also apply to private sector employment or have a similar counterpart, such as the Civil Rights Act of 1964 (Title VII – Equal Employment Opportunity), and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), both of which permit private sector employees to pursue litigation[3].

Perception 4

An agency must pay a salary to an employee who has been removed until any appeal has been resolved.

Reality: An employee is not paid while appealing his/her removal to MSPB. If the action is found to have been unwarranted, then reinstatement and back pay may be awarded. But, there is no pay while removed[4].

Reprinted from Issues of Merit, a publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board.



[1] Analysis of data from U.S. Office of Personnel Management, Central Personnel Data File (CPDF), FY 2000-FY 2014.

[2] Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 23 (2015); see Boddie v. Department of the Navy, 827 F.2d 1578, 1580 (Fed. Cir. 1987); Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (2011); 5 U.S.C. § 7513.

[3] See 38 U.S.C. §§ 4301-4333 (USERRA); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, § 706(e)-(g) (authorizing discrimination litigation in Federal courts).

[4] See 5 U.S.C. § 5596 (b)(1)(A).

Effective Performance Discussions: Don’t Forget to Look Forward

Much of the guidance on performance evaluation focuses on measurement— developing standards of performance, evaluating performance against those standards, and documenting the results. Performance evaluations matter greatly to employees as a factor in pay decisions and as a lasting reflection of the organization’s valuation of employees’ work contributions. Thus, it is important that they be done carefully rather than casually.

Performance evaluations and performance discussions should not focus exclusively on the past. The purpose of performance evaluation—and the employee-supervisor discussion of an evaluation—is not merely to look back. It is also to look forward—to think about what should be done to sustain or improve performance. Indeed, one of OPM’s warranty conditions for a performance management program is “commitment to… conscientious development of employees.” That look forward should include both performance (What results do we want?) and the person (What skills or support does the employee need to achieve those results?). …

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