September 21, 2020

This question came in as a response to FELTG President Deborah Hopkins’ recent article Can Delaying Discipline Cause EEO Liability for an Agency? in our August newsletter.

And here’s the answer:

When it comes to federal employee discipline, unless classified/secret information is involved, there is no law that says an agency has to keep employee discipline confidential, if information about the discipline is shared from personal knowledge of the parties involved.

There is case law on the matter: By becoming public officials, the privacy interests of government employees are reduced. Lesar v. DoJ, 636 F.2d 472 (D.C. Cir. 1980). A government employee’s privacy interests may be diminished to the extent it might disclose “official misconduct.” Lissner v. Customs, 241 F.3d 1220 (9th Cir. 2001).

This is different than the Privacy Act, which among other things prohibits people who have access to confidential personnel documents from sharing information with people who have no right to that information. Also, keep in mind that the details of EEO matters need to remain private.

In Eotvos (pro se) v. Army, CH-0752-17-0355-I-1 (2018)(ID), the supervisor involved in the discipline knew from personal knowledge that the employee was being suspended for inappropriate conduct. So, there was no violation of the Privacy Act or any confidential EEO information. In fact, sometimes it behooves agency officials to share discipline information, because it lets employees know that something is being done about misconduct in the government. There may be times it’s best not to share the details, of course, but there may be times it makes sense to do so.

Always keep in mind your agency policy might contain guidance on this topic, or your supervisor might have an opinion on the matter, so it’s best to check those things before you start talking.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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