By Deborah Hopkins, January 8, 2024

Numerous return-to-the-workplace mandates have been implemented at varying levels over the past year. At FELTG, we’ve received questions about an agency’s authority to require an employee to report to the office — and what to do if the employee elects to telework instead. In other words, can an agency charge Absent Without Leave (AWOL) if the employee was working, but in the wrong location?

A new MSPB case, Wong v. Commerce, DC-0752-17-0298-I-2 (Dec. 9, 2023)(NP), tackles that very scenario. The employee, a GS-15 supervisory patent examiner, was permitted up to 32 hours of telework per pay period under his agency’s telework policy. He was also required to notify the agency in advance of his anticipated telework schedule. On numerous occasions over several months, the appellant worked from home without notifying the agency, but recorded on his time sheets that he was working in the office.

The agency charged the appellant with AWOL and the MSPB upheld the charge with nine specifications. The Board reasoned the appellant was AWOL because he “did not inform the agency of his intention to telework in advance, and the agency was therefore expecting him to be onsite.” Wong, supra, at ¶7. The Board then explained:

Although the “absence” element [of an AWOL charge] normally takes the form of complete absence from duty, it also may be satisfied by absence from the appropriate duty station. In Rodriguez v. Department of Agriculture, 27 M.S.P.R. 79, 84 (1985), the Board sustained a charge of AWOL when the appellant failed to report to work at his temporary duty station as directed, notwithstanding that he continued to report for duty at his normal duty station.

Id. at ¶8.

The appellant argued that the conduct was not AWOL but was instead a minor timekeeping error. The Board addressed this by explaining that the timekeeping issue was “wholly separate from the issue of AWOL, as the agency would have been able to prove AWOL regardless of how the appellant recorded his time; the crucial fact remains that the appellant was not working from where the agency required him to be.” Id. [bold added]

The Board upheld the agency’s demotion penalty, specifically addressing the Douglas factors on the appellant’s supervisory status and his potential for rehabilitation; because the appellant was a supervisor who engaged in “attendance-related misconduct during a period when the agency was attempting to address time and attendance abuse,” the penalty was reasonable. Id. at ¶11.

If you’re not familiar with the elements of AWOL, or you’d like a more in-depth discussion on this topic and all its permutations, join me on Feb. 1 for a 60-minute webinar Feds Gone AWOL: What to Do When Employees Don’t Show Up. [email protected]

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