Know the Clock - One
It is critical for Federal employees to know their deadlines when they have a workplace concern. The “Know the Clock” series breaks down the most common deadlines for federal workplace disputes. This first installment focuses on disciplinary and adverse actions.
Disciplinary & Adverse Action Edition
Deadlines are everything when you have a workplace concern. Missing a deadline could kill your complaint or even cost you your career.
In my “Know the Clock” series, I will lay out the most common deadlines for federal workplace disputes. But a word of caution first - deadlines change constantly, especially in our current environment. OPM continues to revise regulations and issue policies that compress agency timelines and shorten your time for action. It is important to verify all deadlines as soon as you receive notice of a personnel action or have knowledge of events that could give rise to a complaint.
Today, we will start with disciplinary and adverse actions.
Most employees who receive a notice of proposed suspension, reduction in grade, removal, or furlough of 30 days or less are entitled to due process. Due process requires advance notice and an opportunity to respond. Your response is called the “reply,” and it can be written, oral, or both.
OPM sets the minimum time periods to reply to a proposed disciplinary or adverse action, but it is possible your agency could provide a different deadline in your proposal letter. The deadline could be longer, but not shorter, so it is important to read your letter carefully!
As of today, OPM’s minimum reply periods are:
Suspensions of 14 days or less:
No less than 24 hours to reply orally and in writing.
Suspensions over 14 days, Reductions in Grade, Removals, or Furloughs of 30 calendar days or less:
No less than 7 calendar days to reply orally and in writing.
You must also ensure that you are counting your days correctly. Some entities count in calendar days and some count in business days. OPM’s regulations state that the deadlines listed above are in calendar days. The regulations also clarify that the first day counted is the day after the event from which the time period begins to run. For example, if I receive a notice of proposed removal on October 1st, then October 2nd is day one of my 7-day reply period.
Finally, it is not uncommon for employees to request extensions of these time periods, especially if the personnel action is based on complex circumstances or the agency is not timely in providing evidence to the employee. Employees who wish to request an extension of these time periods should submit a request to their agency as soon as possible and describe the reason they need additional time. For example, the reason could be that the agency did not give you the evidence relied upon in the proposed action in a timely manner, or perhaps the volume of evidence is so significant that you need additional time to review.
Want to learn more?
An in-depth look at proposed changes to the deadlines for disciplinary and adverse actions can be found here.
You can also find more information regarding disciplinary and adverse actions generally here.
Farewell, Douglas Factors
The MSPB has officially ousted the Douglas Factors. This update provides insight on how federal agencies will handle future disciplinary cases in light of this change.
The Douglas Factors are officially out.
The Merit Systems Protection Board (MSPB) has amended its regulations, and federal agencies are no longer required to consider the Douglas factors. The Douglas factors are a 12-factor test that has been used for decades to determine the reasonableness of an agency’s penalty in disciplinary cases. Instead, federal agencies will only be required to explain why their chosen penalty is reasonable given the “totality of the circumstances.” MSPB’s new regulations were published on September 3, 2026, and they will go into effect next Monday, October 5, 2026.
Does this mean that federal agencies will no longer consider the Douglas factors? Not necessarily. This new rule only says that agencies are no longer required to consider the Douglas factors in every case. Bottomline: You can’t catch them on a technicality if they forget to include all 12 factors in your decision letter. However, it is likely that agencies will still consider some of the Douglas factors in future disciplinary cases. For example, it is hard to imagine a deciding official would not consider the first Douglas factor (nature and seriousness of the misconduct) in most situations.
Regardless of whether an agency continues to consider the Douglas factors, remember that they must still prove that their action promotes the efficiency of the federal service and prove the reasonableness of their penalty. Plus, they must also still comply with the procedural requirements of 5 U.S.C. Chapter 75 (including advance notice, required timelines, right to reply, etc.), if applicable.
Want to learn more?
A more in-depth look at the Douglas factors can be found here.
You can also find more information on disciplinary and adverse actions here and information on MSPB appeals here.
Shifting MSPB Appeals
Appeals of reduction in force (RIF) actions, probationary and trial period terminations, and suitability actions have shifted from the MSPB to OPM. This update provides employees with the status of the transition and key resources to ensure their appeals are filed with the proper agency.
The move to shift appeals of reduction in force (RIF) actions, probationary and trial period terminations, and suitability actions from the Merit Systems Protection Board (MSPB) to the Office of Personnel Management (OPM) is nearly complete.
Both OPM and MSPB issued final regulations to shift these three categories of appeals late this summer and the change took effect this month. All probationary and trial period terminations and RIF actions that are effective on September 2, 2026 or later must be appealed to OPM, and all suitability appeals filed after September 2, 2026 must be routed to OPM. The MSPB will only hear appeals of terminations and RIF actions that occurred prior to September 2, 2026 and suitability appeals that were filed prior to September 2, 2026.
Employees should also be aware that neither the MSPB’s website nor the MSPB appeal form have been fully updated yet. You may still see references to RIF, probationary, trial, and suitability appeals throughout. The MSPB has begun the process to update its appeal form with these changes, but the process will not be complete until later this year. (MSPB’s Proposed Appeal Form)
However, employees can visit OPM’s website and find instructions for each type of appeal (Probationary and Trial Period Appeals, RIF Appeals, and Suitability Appeals), and OPM is directing federal employees to file all new appeals through the OPM eFile system.
Employees should pay careful attention to ensure they do not mistakenly file an appeal with the wrong agency. Given these significant changes and evolving guidance, federal employees should consider contacting an experienced federal employment law attorney for assistance when filing these types of appeals.
Want to learn more?
A more in-depth look at suitability determinations that may give rise to suitability appeals can be found here.
You can also find more information regarding reductions in force here and information regarding probationary and trial periods here.