This is Going to Blow Your Employment-Law Mind

By William Wiley, January 3, 2018

Let’s talk burdens of proof for a few minutes, and along the way, we’ll test your knowledge. For you newcomers to this business, the burden of proof declares how much evidence an agency must have to discipline or fire someone from the federal government. The higher the burden of proof, the more work the agency must do, the longer it takes to prepare a decision, and the harder it is to defend the action on appeal. When given a choice, an agency will (or, should) pick the lower burden of proof every time.

Here are three proof-burdens that demonstrate the relativity of how much evidence is needed for a particular action. First is the official name followed in parentheses by the layperson’s way of saying the same thing:

• Beyond a reasonable doubt (he certainly did it)
• A preponderance of evidence (he probably did it)
• Substantial evidence (he might have done it)

And here are three pop quiz questions to test your employment law knowledge. Get all three correct and you get a free annual subscription to the FELTG Newsletter plus free coffee at all of our open enrollment seminars for the year:

1. What is the agency’s statutory burden of proof when firing someone for unacceptable performance?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: C. Every employment law practitioner and federal supervisor should know that almost 40 years ago, Congress made it drop-dead easy to fire a poor performer. It gets no lower than the he-might-have-performed-unacceptably standard. If the choice is to fire a bad employee for performance or misconduct, pick performance as you’re less likely to lose for lack of proof. See 5 USC 7701(c)(1)(A).

2. What is the agency’s statutory burden of proof when firing someone for misconduct?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: B. Every employment law practitioner and federal supervisor should know this 51% standard. Unfortunately, most do not recognize how low this burden of proof is, even though bad federal employees are fired much more often for misconduct than for performance. See 5 USC 7701(c)(1)(B).

3. What is the agency’s statutory burden of proof when suspending someone for up to two weeks for misconduct?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: D. “What?!? Wiley, you idiot. I’ve been working in federal employment law my whole career. I’ve attended your classes. I’ve read the book that you and Deb wrote. You teach that it’s a preponderance of the evidence, that the employee probably did it, that’s the burdent the agency needs to prove a short suspension. Are you saying that there’s no law that requires this burden?” Yes, Virginia, that’s right. There’s no Santa Claus and there’s no law that sets the standard of proof necessary to sustain a short suspension.

Well, then. It must be in an OPM regulation. Right? Wrong. Go read 5 CFR 752.202, the OPM regulations that lay out the standard for action for short suspensions. If you find a reference to a burden of proof there, your copy of the Code of Federal Regulations has been hacked.

So how did this epiphany come about after nearly 40 years of not seeing the obvious? Well, once again I have to give credit to a hard-working practitioner at DVA who, when trying to understand the limits of the new DVA law’s application, simply read the law and found this anomaly. We’re all in this together, and thanks goodness that DVA is sharing its experiences with the rest of us.

What can you do with this new information. assuming of course that you didn’t already know about it? Logic it through this way from an agency’s perspective:

• Without the law or a regulation mandating a burden of proof, an agency would be free to establish its own proof burden for reprimands and suspensions up to 14 days.
• DVA’s new law (38 USC 714(d)) tells us that there’s nothing fundamentally wrong with using the substantial burden of proof for disciplinary actions. If there were, Congress wouldn’t have passed the recent legislation.
• Therefore, why would an agency NOT incorporate the substantial evidence burden into its own policy statements regarding adverse actions?

Here at FELTG, we try not to take issue with reasoned decisions by agency managers as to policy as long as those decisions are based on evidence and not just what some smarty pants “thinks” the evidence should be. If your agency’s head knows that legally the burden of proof for short suspensions can indeed be as low as substantial, and he or she still decides that the penalty burden should be at the preponderance level, so be it. Heck, make it the “clear and convincing” level of proof if that floats your boat. However, if you conclude that the proof burden for disciplinary actions must be “preponderance” without considering all the options, you are a baaaad employment law policy maker. Wiley@FELTG.com