OPM provides policy guidance and advice to agencies governmentwide on such topics as taking performance-based actions and adverse actions. We develop, implement, and communicate policies and regulations. In addition, we provide guidance on other topics such as alternative dispute resolution, reasonable accommodations, and appeal rights to include employee coverage and affirmative defenses. We also advise the Director on exercising OPM's statutory authority to intervene or seek reconsideration for erroneous third-party decisions.

Most Federal agencies are authorized under 5 U.S.C. chapter 75 to suspend, demote, furlough, or remove employees for "such cause as will promote the efficiency of the service." Actions taken under 5 U.S.C. chapter 75 are "adverse actions" and are based upon misconduct, unacceptable performance, or a combination of both. They may also be based upon non-disciplinary reasons such as medical inability to perform or furlough. We issue governmentwide regulations at 5 CFR part 752 which implement the law.

Most Federal agencies are authorized under 5 U.S.C. chapter 43 to demote, or remove employees for "unacceptable performance." Such actions are commonly referred to as performance-based actions. We issue governmentwide regulations at 5 CFR part 432 which implement the law. Actions based on unacceptable performance may also be taken under 5 U.S.C. chapter 75 and are regulated at 5 CFR part 752.

Alternative Dispute Resolution (ADR) is a procedure for settling disputes by means other than litigation. Often times, a third-party neutral assists in reaching an amicable resolution through the use of various techniques. ADR contributes to effective management by controlling the costs of conflict, producing quicker and more durable results, and preserving resources for the mission of the agency.

The alternative methods to traditional, formal dispute resolution include mediation, fact-finding, ombudsing, interest-based negotiation, arbitration, and alternative discipline. Alternative methods involve the use of alternatives to traditional disciplinary procedures and penalties. Through the effective use of ADR agencies resolve employee-employer disputes in a way that is more efficient and more effective than traditional, adversarial methods of dispute resolution. We promote the use of ADR by Federal agencies.

Federal employees have a variety of appeal and grievance rights. Depending on the issues involved, they may pursue the matter within their agency, appeal to the Merit Systems Protection Board (MSPB) or file a complaint with the Equal Employment Opportunity Commission (EEOC) or the Office of Special Counsel (OSC).

Employees generally have the right to appeal a suspension, demotion, or removal to the MSPB or to grieve the action through the agency's negotiated grievance procedure. Employees can choose between these two methods of appeal, but cannot pursue both avenues. Allegations of discrimination, reprisal for whistleblowing, and other prohibited personnel practices can be raised as part of an employee's appeal or grievance. Such allegations can also be filed directly with the agency's Equal Employment Office or the OSC.

Employees working during their probationary/trial periods generally are not covered under 5 CFR parts 432 or 752 of the Code of Federal Regulations. Except for certain circumstances, if an action is warranted against a probationer, he or she can appeal the termination to the Merit Systems Protection Board only if the action is based on marital status or partisan political affiliation. This is due, in part, to the very nature of the probationary/trial period which provides supervisors the opportunity to determine whether a new employee will be an asset rather than a liability to the organization.

Employee Coverage

An individual must receive full procedural and appeal rights if he or she meets the definition of "employee" provided at 5 U.S.C. § 7511. Employees working during their probationary/trial periods generally are not covered. In certain circumstances, however, individuals working in probationary/trial periods have prior current continuous service that may qualify them to receive full procedural and appeal rights. As a result, it is advisable to always review the requirements at chapter 75. Supervisors should consult with their servicing human resources office to help them determine if an individual meets the statutory definition of "employee." An individual must receive full procedural and appeal rights if he or she is:

• in the competitive service and has completed one year of current continuous service under other than a temporary appointment limited to one year or less;
• a preference eligible in the excepted service who has completed one year of current continuous service in the same or similar positions in an Executive agency; or in the United States Postal Service or Postal Regulatory Commission; or
• an individual in the excepted service (other than a preference eligible) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service, for example:
• • Veterans Recruitment Appointments (VRA) (5 CFR part 307)
  • appointments under certain student employment and career intern programs (5 CFR 213.3202(b) and (o)) appointments in the Presidential Management Fellows Program (5 CFR 213.3102(ii))
  • appointments of persons with mental retardation or certain disabilities (5 CFR 213.3102(u))
• an individual in the excepted service (other than a preference eligible) who has completed two years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to two years or less.

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Affirmative Defenses

Employees may introduce evidence in response to and in defense against an agency action by providing evidence such as a new fact or set of facts to defeat actions taken against them, (e.g., an adverse action under 5 CFR part 752 or a performance-based action under 5 CFR part 432), even if the facts supporting the actions are true. This is called an affirmative defense. Affirmative defenses include claims that the agency action was contrary to the law or that a harmful procedural error occurred.

If the action is otherwise appealable to the Merit Systems Protection Board (the Board), individuals can raise as an affirmative defense discrimination based on partisan political reasons, marital status, race, color, religion, sex, national origin, age (must be at least 40 years old) or handicapping condition. Individuals may also allege as an affirmative defense a prohibited personnel practice under 5 U.S.C. § 2302(b).

Probationary employees only have a right to raise certain affirmative defenses. An employee terminated during the probationary period may appeal to the Board on the grounds that the termination was based on partisan political reasons or marital status. An individual entitled to appeal on any of these grounds may also raise an allegation of prohibited discrimination. In certain circumstances, an individual serving a probationary period may have additional appeal rights.

Disability discrimination, discrimination under Title VII, and whistleblower reprisal are some of the affirmative defenses that can be raised.

Title VII Discrimination

• Age
• National Origin
• Race
• Religion
• Sex
• Sexual Harassment

Disability Discrimination

Federal agencies are required by law to provide reasonable accommodation to qualified employees with disabilities. The U.S. Equal Opportunity Commission (EEOC) enforces the law which prohibits employment discrimination against qualified individuals with disabilities. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.

The Rehabilitation Act of 1973 Section 501, as amended applies to employees in the federal sector and prohibits employment discrimination against individuals with disabilities. The Act adopted the standards applied under title I of the Americans with Disabilities Act of 1990 for determining whether a violation occurred in a complaint alleging discrimination.

The Civil Service Reform Act of 1978 (CSRA) identifies prohibited personnel practices. The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on protected bases, including disability. The prohibited personnel practices and the merit system principles for Federal personnel management are codified at 5 U.S.C. 2302.

The U.S. Department of Labor's Office of Disability Employment Policy (ODEP) website links agencies to the Job Accommodation Network (JAN), the National Center on Workforce Disability for Adults (NCWD-A) and other disability-related employment resources.

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The Director of the U.S. Office of Personnel Management (OPM) is authorized by law to seek reconsideration of erroneous decisions by the U.S. Merit Systems Protection Board (the Board) and arbitral awards involving appealable adverse actions.

Under 5 U.S.C. § 7703(d), the Director may file petitions for reconsideration and judicial review of a Board final decision if the Director determines that: (1) the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management; and (2) the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. Section 7121(f) likewise authorizes the Director to seek reconsideration and judicial review of an arbitrator’s award, provided that the arbitrator’s decision involves matters covered under 5 U.S.C. §§ 4303 or 7512 or similar matters which arise under other personnel systems.

Further, as required by 5 CFR § 1201.119(b), OPM must file its petition for reconsideration to the Board (or arbitrator) within 35 days after the date of service of the final Board (or arbitral) decision. This 35-day deadline to file a petition for reconsideration gives OPM a limited period in which to conduct a full and careful assessment of the decision. If OPM’s reconsideration petition is denied, and OPM wishes to seek judicial review, 5 U.S.C. § 7703(d) requires that then OPM must file its petition for judicial review within 60 days from the issuance of the Board’s final order or decision (or the arbitrator’s decision) that denied its petition for reconsideration. OPM cannot seek judicial review unless it has timely sought reconsideration, or “intervened” in the case at an earlier stage, which makes meeting the regulatory deadline in 5 CFR § 1201.119(b) to submit a petition for reconsideration crucial for any further action on a Board or arbitral decision.

Due to these considerations, it is imperative that any agency interested in seeking reconsideration of a Board decision, or a qualifying arbitral decision, contact OPM’s Accountability and Workforce Relations (AWR) team as quickly as possible after the agency receives the decision from the Board or the arbitrator.

Agency requests for reconsideration should be directed to employeeaccountability@opm.gov.