1. The Army Reserve MR. TIMOTHY D. JOHNSON Chief, Labor and Employment Law U.S. Army Reserve Command Labor Law Update

2. The Army Reserve Agenda Investigating Civilians EEOC Complaints USERRA issues Civilian Disciplinary Actions at the MSPB

3. The Army Reserve Civilian Investigations What happens when a civilian employee is a witness in an AR 15-6 investigation? Right to Remain Silent? Right to Counsel? What do we do if the civilian refuses to cooperate in the investigation?

4. The Army Reserve EEO  Race  National Origin  Religion  Age  Gender  Reprisal  Color  Disability Bases of discrimination

5. The Army Reserve EEO When bad things happen to employees they often think it is discrimination Some federal managers do discriminate and should be disciplined Federal EEO process is involved and time consuming

6. The Army Reserve Consequences of a Finding of DiscriminationExpenses: Direct Payments. 1) Direct Payments. Up to $300,000.00 per employee, per case, for compensatory damages. Plus attorney’s fees and front pay. This money is paid out of the Command’s budget. Litigation Expenses. 2) Litigation Expenses. Costs include travel expenses for all government witnesses, court reporter fees, and lost duty time of employees.

7. The Army Reserve USERRA How long do our employees on military orders retain reemployment rights? USERRA requires reemployment even if the employee is now disabled. 10 USC 10218 states that a mil-tech hired after 10 February 1996 must be removed if they have lost dual status – exception for combat related injury.

8. The Army Reserve MSPB It can be difficult but it is not impossible to administratively punish or terminate a federal employee It is impossible to fire a federal employee for the wrong reasons If mangers have not been documenting past problems with conduct or performance, it is impossible to fire a federal employee without developing progressive discipline.

9. The Army Reserve MSPB Right to Due Process The Supreme Court ruled that Government Employees have a property interest in their positions and that they cannot be fired without due process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985) Minimal Due Process involves receiving notice of the actions being proposed, an opportunity to respond, and a written decision. We have run into problems when deciding officials consider evidence that was not part of the notice of proposed actions given to the employee.

10. The Army Reserve MSPB In every disciplinary action appealable to the MSPB, the agency must prove that: 1.The employee committed the misconduct 2.There is a nexus or connection between the misconduct and the efficiency of the service; and 3.The penalty was appropriate (reasonable)

11. The Army Reserve Whistleblower Retaliation It is a Prohibited Personnel Practice to take or fail to take a personnel action against any employee as reprisal for a disclosure that the employee reasonably believes evidences: A violation of law, rule, or regulation Gross mismanagement A gross waste of Funds An abuse of authority A substantial and specific danger to public health or safety

12. The Army Reserve MSPB If you have a probationary employee who engages in misconduct or is a poor performer, fire them during the probationary period. It requires less due process. Termination of probationary employee has fewer appeal rights.