On October 14th,the MSPB issued a press release endorsing alternative discipline and encouraging agencies to better inform Federal managers about the benefits of considering its use.
This press release introduces a study titled Alternative Discipline: Creative Solutions for Agencies to Address Employee Misconduct, submitted to the President and the Congress in July of this Year.
Major Findings of the Study
- Agencies provide little or no guidance to their workforce. Only 7 of 46 Agencies responding to the study have a policy.However, 80% of those withoutsuch a policy are permitted by the agency to use alternative discipline.
- Training is missing in most agencies. Of the 37 study respondents using alternative discipline, only 2 reported that their agency provides specific training on alternative discipline to personnelists, supervisors or employees.
- Few agencies indicated they keep track of alternative discipline as a program.
- Some agencies use alternative methods automatically, with little or no assessment of the employee or possible nuances of the particular situation. However, most encourage managers to assess the situation on a case by case basis to determine what approach is most likely to resolve the situation.
- Some agencies limit the use of alternative discipline to low-level offenses or early offenses, while others use it primarily as a final effort before removal.
- Almost all responding organizations indicated that when alternative discipline occurs, it is the result of an agreement between the agency and the individual employee.
- When alternative discipline is addressed in a collective bargaining agreement, it tends to be an option for management rather than a requirement. (The U.S. Postal Service is a notable exception.)
Recommendations
The Board made seven recommendations about the use of alternative discipline.
- Agency staff should talk to their lawyers when drafting and before agreeing to an alternative discipline agreement.
- Employees would be well served getting legal advice as well.
- Agencies should use plain language and it is important the agreement be sufficiently understandable for the employee’s consent to be knowing and voluntary.
- Agencies should develop policies, or at least provide guidance, on the use of alternative discipline.
- Managers should be trained, before the problem arises, on the existence of alternative discipline and the basic principles behind it.
- Agencies should avoid inflexible rules on the use of alternative discipline.
- OPM should consider requesting data from agencies on their use of alternative discipline. “If OPM were to serve as a central repository, OPM might be better able to advise agencies on effectively managing conduct issues within the Federal Government.”
MSPB Puts Parties on Notice
Saying it wasn’t a new finding, the Board nevertheless made its position clear on its role. “Alternative discipline agreements are contracts. Thus, how they are formed, executed, enforced, and potentially breached will be evaluated by legal standards if a party seeks MSPB or judicial enforcement.”
Getting Alternative Disciple Information
Yours truly published an article and a Alternative Discipline Agreement on Fedsmith about two years ago. OPM’s alternative discipline pages on its website have lots of information and contact information for practitioners.
The above, as always, is my take and doesn’t necessarily represent anyone else’s position on the issue. Thanks to the folks at MSPB’s Office of Policy and Analysis for a job well done and my apologies for the liberties I’ve taken in abbreviating some of their text for the purposes of this article.
