By William Wiley

We’re all federal employment law practitioners. Some of us practice as supervisors; some of us practice as advisors to supervisors. As federal employment law practitioners, we don’t just know what to do, we know why we do it (the difference between being a technician and a professional; ask a classifier). With that role in mind, let’s examine the question, “Why do we suspend employees who engage in misconduct?”

It is generally accepted that we discipline employees to correct behavior. A psychologist would say that when we deny pay by suspending an employee, we are providing “negative reinforcement” in an attempt to encourage him to obey the rules and thereby avoid future misconduct.

We certainly do not suspend employees for the sheer pleasure of watching them suffer. If your bag is to experience Schadenfreude, don’t do it by disciplining your employees.

OK, so we suspend employees to correct their behavior. But is there a downside to management when we decide to suspend an employee? Sure. Those days the employee is suspended are days of productivity that are lost, that coworkers have to pick up the slack. So we suspend to correct misconduct, but we pay a price in lost productivity when we do it.

Given the cost to management of suspending an employee, we should look to the least costly suspension that accomplishes the objective of correcting the misconduct. As far as we know, there’s no official limit as to how long an employee can be suspended in the federal government. However, it’s fair to say that the rare outside examples are in the 90-day range.

Next, we look to see if there’s anything that makes longer suspensions more expensive to management than shorter suspensions, aside from the degree of productivity loss that comes from any suspension. And lo and behold, we find that Congress has built into the law a tremendous cost increase as suspensions get longer. 5 USC Chapter 75 (adverse actions) tells us that if an agency suspends an employee up to 14 days (10 work days; generally a pay period), the employee can challenge the merits of the suspension within the agency, but not beyond. However, if an agency suspends an employee for more than 14 days, the employee can challenge the merits of the suspension outside of the agency to the US Merit Systems Protection Board. And as every practitioner knows, a right to appeal to MSPB gives the employee a full blown hearing with discovery (depositions, interrogatories, document production into the millions of pages), an appeal to the three Board members, an appeal to the Federal Circuit, and even a potential appeal to the Supremes.

Several years ago, GAO estimated that it cost the government about $100,000 to defend an agency if an individual filed an MSPB appeal. And that was just through the hearing level. Add to that the cost of defending a long suspension beyond the hearing level, plus the one in four possibility that the agency will lose and have to pay back pay and attorney fees (add in there an expense factor for damages in some cases), and you have yourself a bucket load of potential expense.

I have no problem with high cost. When the Porsche dealer told me that the turbo would add $30,000 to the price of my new 911, I considered that the extra expense would let me get from zero to sixty 8/10 of a second faster, and realized that the extra speed was clearly worth the additional thirty-grand. Others might have chosen the standard model, but it’s my money and I get to decide what’s of value to me.

So let’s look at the value of suspensions of different lengths. Remember, we suspend to correct behavior, not for the enjoyment of punishing someone. Is there any research that shows that a suspension of more than 14 days is more likely to correct behavior than a suspension of 14 days?

No. The Porsche will go faster with the turbo, but there are no studies, inside or outside of government, that show that a longer suspension is more likely to correct misbehavior than would a shorter suspension.

Let’s look at where all of this analyzing leaves us:

  • Longer suspensions (over 14 days) are no more likely to correct misconduct than are shorter suspensions.
  • Long suspensions are potentially more expensive than are short suspensions by a significant factor.
  • Therefore, why would anyone with a scintilla of judgment ever suspend for more than 14 days?

Answer: Beats me.

I once had an attorney who wanted to argue this point say that since MSPB mitigates to 30 and 45 day suspensions, they must be good for an agency. No, they must not. Keep in mind, MSPB is not responsible for an efficient government; the employing agency is. MSPB sets the outer limits; it doesn’t say what the actual decision should be. The speed limit on the Beltway may be 65 MPH, but that doesn’t mean you have to drive that speed in the rain, at night, in heavy traffic. Although the Board might mitigate to a long suspension, that mitigation is always characterized as the “maximum reasonable” penalty, not the “appropriate” penalty. And guess who gets to decide what an “appropriate” suspension is?

Your agency managers do.

If I were in a policy-setting position within an agency, I would set a policy that we don’t do suspensions of more than 14 days. Period. If the employee warrants discipline beyond 14 days, he gets removed. The associated costs to the government of a long suspension simply are not worth the zero added value we get.

Hey, it’s your money. You get to decide what’s of value to you. Wiley@FELTG.com .

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