How to Handle a Federal Employee Misconduct Investigation

Attorney Justin Schnitzer

Written by: Attorney Justin Schnitzer


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federal employee misconduct investigation

Misconduct is a serious matter for federal employees. This is why there is an extensive routine of due process whenever a complaint or accusation of misconduct occurs. While this system was put in place to protect federal employees from undue harm, the process can also be intimidating and difficult to navigate.

If you are facing a federal employee misconduct investigation, now is an important time to exercise your rights and prepare a defense against whatever misconduct you have been accused of.

An experienced federal employment lawyer can help you to understand the complex steps that lie ahead, the potential consequences of the misconduct investigation, and how to best protect yourself from adverse action that might be taken against you.

Why do investigations of federal employees start?

The start of misconduct investigations into federal employees typically arises from suspicions of unethical activities such as deception, peer harassment, unwarranted absence, allowing security infractions, misusing taxpayer dollars, or demonstrating carelessness.

Regardless of the circumstances, it is in the best interest of the federal employee to speak with a federal employment attorney to educate you on your rights throughout the process.

What Is Considered Federal Employee Misconduct?

If you are informed that you have been reported for misconduct, it is important to know what exactly qualifies as misconduct for a federal employee. These are clearly defined, therefore, can be listed and classified by severity.

Falsification of Records

Federal employees are entrusted to run elements of the federal government with honesty and transparency. Falsification of records is a severe infraction, even if the records are personal reports. However, the more the records affect others, the greater the severity.

Harassment and Discrimination

Federal employees are not permitted to be abusive or insulting, or make any decisions based on a person’s protected identity classifications. These classifications are defined by the EEOC and the ADA including nationality, ethnicity, skin color, religion, culture, gender or sex, sexuality, family status, or disability status.

Attendance Problems

Attendance problems are typically the least severe of employee misconduct, but repeated tardiness or absenteeism may result in disciplinary measures.

Insubordination

Insubordination occurs when a federal employee refuses orders or instructions from a supervisor or manager, provided that the instructions were lawful and ethical in nature. Insubordination runs a wide gamut of severity depending on the attitude and importance of refusal.

Misuse of Government Property

Federal employees are entrusted with access to government property, which includes software, data, hardware, and equipment. Using these for personal or unethical purposes is considered a moderate to severe case of misconduct.

Criminal Activity

If a federal employee commits any criminal activity, and especially within the context of their job, they will be found to have committed misconduct and may also face criminal charges including evidence from the misconduct investigation.

Know Your Rights as a Federal Employee in a Misconduct Investigation

Federal employees have very specific outlined rights when charged with misconduct.

Right to Information

You have the right to know what you are being investigated for and to see the documentation being used to establish the case. You may inquire about the details of the investigation and the level of disciplinary action is being considered. 

This right ensures that you cannot be accused in secret, and will have the opportunity to prepare a structured defense to disprove or contextualize whatever misconduct is being investigated.

Right to Interview Preparation

You have the right to know what questions will be asked if there are interviews or questioning sessions during the investigation.

This gives you the chance to carefully prepare your answers with your lawyer and prevents surprise “gotcha” questions that can misconstrue your response.

The Right to Remain Silent

Depending on the nature of the investigation, you may or may not have the right to refuse to answer questions and remain silent. You will know what to expect based on whether you receive a Garrity Warning or a Kalkines Warning.

How Can a Lawyer Protect You in a Federal Employee Misconduct Investigation?

As a federal employee, if there is risk that adverse action will be taken against you for alleged misconduct, you have the right to legal counsel. This is crucial, because the federal misconduct investigation, hearing, and adverse action process is arduous and can be difficult to navigate. A federal employment attorney has the insight and experience necessary to help you exercise your rights and prepare the strongest possible defense against the allegations of misconduct.

If you did not do what you have been accused of, your lawyer will help you gather counter-evidence to prove your innocence. If your actions have been taken grossly out of context, then your lawyer will help you build and present the appropriate context. The federal employment lawyers at The Law Office of Justin Schnitzer provide dedicated legal support for federal employees. Contact us today or call 202-964-4878 to schedule your free consultation to begin strategizing your misconduct defense.

Garrity Warnings vs Kalkines Warnings and Your Right to Silence

When you are to be questioned in a federal employee misconduct investigation, you will receive one of two warnings: Garrity or Kalkines.

Garrity Warning: The Right to Remain Silent with Criminal Implications

If you are being investigated for something that may have criminal implications, you will be given the Garrity Warning. This is the equivalent of Miranda Rights for a federal employee. In other words, you will be informed that you have the right to remain silent and that anything you say could be used in the misconduct hearing or in a criminal trial afterward.

If you are given the Garrity Warning, you may choose not to answer any question if the answer might implicate you in a crime. Choosing not to answer questions will not result in disciplinary action within the context of your job.

Kalkines Warning: Safety without Silence

If you are being investigated only for internal misconduct, you will be given a Kalkines Warning. This indicates that there is no risk of a criminal case against you. While this may be good news in one respect, it also means that you will not be able to refuse to answer questions, and refusing to do so may result in further disciplinary action.

Understanding Adverse Action That Could Be Taken After a Misconduct Investigation

If a case of misconduct is made against you, the hearing will result in disciplinary action. There are two grades of disciplinary action. The first level can be conducted with minimal process. These include

  • Letters of Warning
  • Letters of Reprimand
  • Oral or Written Counseling
  • Suspension of 15 Days or Less

However, if it is determined that there should be greater consequences, you may be subject to adverse action. These include actions that may change the nature or permanence of your role as a federal employee.

Furlough

An employee may be furloughed, which is a mandatory leave of action. You may be required to take time away from work with the expectation that you may eventually return to your role when the furlough period is done or the aftermath of the case is complete.

Suspension

Suspension is a greater disciplinary act than a furlough, they function in a similar fashion. Suspensions of 15 to 30 days are categorized as adverse action.

Reduction in Grade

If the misconduct is deemed a misuse of your rank as a federal employee, you may be disciplined with a reduction in grade. This will usually result in a demotion of both rank and pay, and may also include a transfer to another office.

Removal

Removal is the contextual term for termination. If the misconduct hearing results in a decision to remove you, you will be fired as a federal employee.

Defending Yourself from Misconduct Allegations

When you have been accused of misconduct as a federal employee, your primary focus should be on building a strong defense. There are two options for a defense, depending on how much truth there is to the allegations. 

Disproving False Accusations

False allegations are not uncommon. A coworker or supervisor may have misunderstood your actions or it may even be the result of rivalry or discrimination in the workplace. False allegations can be mistaken or malicious, but you will need to carefully prove that you were not involved in the alleged misconduct.

To disprove false allegations, you can create a robust record of your time, activities, and record entries. You may also need a stack of witness statements in order to counteract allegations regarding your attitude or conversations which do not create hard data.

Providing Context in Complex Situations

Alternately, it is possible that the conduct you are being investigated for has been taken out of context. For example, you may have used government property for activities outside your normal duties, but for the purpose of a special assignment or event that is still work related. Or you may have refused a supervisor’s orders because you were not sure they were lawful or ethical.

Providing context for behaviors can serve to reduce or nullify any potential consequences for perceived misconduct with some basis in truth.

Don’t Face a Federal Employee Misconduct Investigation Alone

If you have been accused of misconduct and are facing an investigation as a federal employee, you have the right to legal counsel to ensure the best possible outcome.

The federal employment lawyers at The Law Office of Justin Schnitzer are dedicated to providing personalized, high-quality legal representation to federal employees nationwide. Contact us today or call 202-964-4878 to schedule your free consultation and learn more about how we can help you achieve your legal goals.

Attorney Justin Schnitzer

Meet the Author:
Attorney Justin Schnitzer

Justin Schnitzer is the managing partner of The Law Office of Justin Schnitzer, and represents individual federal employees and unions in various aspects of federal employment law. His practice is primarily dedicated to federal EEOC and MSPB matters, responses to proposed disciplinary actions and investigations into potential misconduct.