Federal Employee Termination Laws: A Complete Legal Guide 2024

Attorney Justin Schnitzer

Written by: Attorney Justin Schnitzer


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federal employee termination laws

Federal employee termination laws are in place to protect the rights of civil servants while also allowing the government to manage its workforce efficiently. As with any employer, the federal government can fire employees for subpar performance, company policy infractions, or disciplinary issues. However, special rules apply due to the unique nature of government work.

Because federal employees are not private sector workers, they’re afforded protection against arbitrary or politically-motivated firings—their jobs allow them to carry out public business without fear of reprisal. Extensive documentation and a review process are therefore required for proposed removals to prevent abuses of power within the civil service system.

What are the basic rights of a federal employee facing termination?

Your employer must give you a 30-day notice and a chance to contest alleged misconduct before termination. You can appeal to the MSPB, get representation, possibly be reinstated with back pay, and file complaints with the OSC for employment law violations.

If you find yourself in this situation, reach out to a skilled federal employment attorney at The Law Office of Justin Schnitzer by calling 202-964-4878. We can provide guidance on your legal rights and explore the options available to you.

Can a Federal Employee Be Fired?

Yes, a federal employee can be fired. The process involves multiple steps designed to ensure fairness and due process, including counseling, a notice of proposed action, a right to respond, evaluation by a deciding official, notice of decision, an appeal period, and final action.

Legal Rights for Fired Federal Employees

Federal employees have certain due process rights outlined in the 5th Amendment, which protects against deprivation of life, liberty, or property without due process of law. These rights ensure employees are made aware of any issues with their performance through reviews and feedback so they have a chance to improve.

To satisfy due process, sufficient notice must be given to allow the employee time to review the evidence against them and prepare a defense. Employees can then respond both orally and in writing, usually through a meeting with an impartial official, to present their side before a final termination decision is made.

The response may involve submitting counter-evidence, witness statements, or legal arguments about why the conduct did not warrant removal. Discrimination is also prohibited. Government agencies cannot terminate someone due to their race, sex, age, gender, religion, disability status, or other protected class. If discrimination is found to be a motivating factor, it can invalidate an otherwise legal removal and entitle the employee to back pay and reinstatement.

Employees are free to report wrongdoing through the proper channels without fear of reprisal, like blacklisting or termination. The Whistleblower Protection Act (WPA) is in place to prevent retaliation against employees who lawfully disclose government malpractice. It’s up to government agencies to prove any disciplinary action was not a pretext for whistleblowing.

Related Read: Wrongful Termination in the Federal Workplace: Know Your Rights

The Three Types of Termination for a Federal Employee

The main types of termination for a federal employee include reduction in force or RIF, resignation or retirement, and removal for cause.

  • A RIF occurs when an agency must downsize due to reorganization or a lack of funding. 
  • Resignation is a voluntary departure, while retirement requires meeting age and service requirements.
  • Removal for cause involves an agency firing an employee for misconduct or performance issues and requires following due process termination procedures.

What Constitutes “Cause” for Termination?

To fire an employee for cause requires proving the conduct or performance was egregious enough to warrant removal. Common grounds for termination include misconduct like harassment, insubordination, security violations, or criminal behavior on or off duty. Unacceptable job performance could mean consistently failing to meet deadlines, producing poor quality work, or lacking necessary skills. Termination must be reasonable and proportionate to the offense to withstand a legal challenge.

Minimum Notice Periods for Federal Employee Termination

The notice period required before termination increases with the length of service. There’s no advance notice for employees with less than six months of service. Your due process rights and rights for advance notice may differ depending on your length of employment with the federal government. The specifics are complicated; reach out to a federal employment attorney to discuss your specific situation. 

The MSPB Appeal Process for Federal Employees

Here is how the process works: The typical termination begins with a supervisor notifying an employee of a proposed removal in writing along with supporting evidence of the charges. This letter specifies the reasons for termination like misconduct or unacceptable performance. Next:

  • The employee has 7–15 days to respond orally or in writing and submit evidence defending against the reasons for removal.
  • After considering the relayed response, the deciding official (usually someone higher than the direct supervisor) issues a final removal decision.
  • If terminated, some employees can appeal the decision to The Merit Systems Protection Board (MSPB) to argue the removal was unwarranted or the agency failed to follow the proper process. An MSPB attorney should be consulted to ascertain whether or not you have those appeal rights.
  • During the response and appeal periods, the agency and employee representatives may engage in settlement talks to see if an agreement can be reached instead of a final decision.
  • If the MSPB denies an employee’s petition, they can further appeal to the MSPB board. If this appeal is also denied they can appeal to a federal court of competent jurisdiction. 

Grounds for Legally Challenging a Federal Employee Termination

Employees can appeal their termination to the MSPB on the grounds that the action was not for cause, was based on discrimination or whistleblower retaliation, or the agency failed to follow required termination procedures. Employees may also argue that the penalty of removal was too severe given the offense. All evidence will be heard and decided by an impartial MSPB administrative law judge if the request for a hearing is submitted. 

Federal Employees Rights to Legal Representation

While not guaranteed free legal counsel, terminated federal employees have the right to have a lawyer present during the termination process and any subsequent appeals. 

Representation ensures agencies follow all proper procedures and termination is truly warranted, given the situation. Federal employment lawyers from The Law Office of Justin Schnitzer can protect your rights in several ways:

  • Review the facts of your case and evaluate the strengths and weaknesses of your legal position.
  • Represent you in any investigation and interviews conducted by your employer.
  • Advocate for you during informal dispute resolution procedures, such as mediation or settlement discussions.
  • Defend you against any formal disciplinary or adverse employment actions, such as suspension, demotion, or termination.
  • File appeals of adverse actions with the Equal Employment Opportunity Commission (EEOC) or MSPB on your behalf.

A federal employment lawyer can also negotiate a severance package or settlement if disciplinary action cannot be overturned but can be mitigated.

FAQ About Federal Employee Termination Laws

Now that the basics of federal employee termination laws and processes have been covered, here are answers to some frequently asked questions on this topic:

What Happens to my Benefits Following Termination?

A terminated federal employee may qualify for unemployment benefits depending on the reason for firing. The Consolidated Omnibus Budget Reconciliation Act (COBRA) provides former government employees with the right to temporary continuation of health insurance coverage at group rates.

Beyond unemployment and COBRA benefits, terminated employees retain rights to their earned pension, federal disability retirement, and any unused sick days or annual leave. If retirement-eligible, employees may choose to start receiving pension payments immediately rather than waiting until a normal retirement age. Should the termination be reversed on appeal, employees are entitled to back pay for the time they were improperly removed.

Before making a decision to retire in the face of unwarranted termination, it is important to consult an attorney before any moves are made. Retiring too early may negatively impact your rights to an appeal. 

Can a Probationary Federal Employee Appeal a Termination?

Unfortunately, employees within their first year of federal service have very limited appeal rights. Removals during probation are almost always not appealable to the MSPB. Probationary employees can only challenge a termination that was based on marital status or political affiliation before the MSPB. However, like all employees you always have the right to file a discrimination claim before the EEOC. 

What is The Burden of Proof in MSPB Appeals?

The agency bears the burden of proving the grounds for termination by substantial evidence. This means providing documentation and witness statements that a preponderance of the evidence supports termination. If an appeal finds the agency failed to meet this standard, the removal will be reversed.

Related Read: How to Win an MSPB Appeal: Step-by-Step

What Options Do I Have If You Receive a Proposed Removal?

Employees who receive a proposed removal letter have the right to provide an oral and/or written response attempting to refute the agency’s claims. They can submit evidence, bring witnesses, or argue the proposed penalty is too severe. 

Do Termination Laws Apply to All Federal Agency Employees?

Generally, yes. Termination procedures and appeal rights outlined in civil service laws like the Civil Service Reform Act apply government-wide to most executive branch employees. However, exceptions exist for senior executives, intelligence agency personnel, and other categories. Congressional employees are also not covered and have their own processes.

How Do Whistleblower Protections Affect Federal Employee Termination?

Whistleblower rights ensure honest public servants are not chastised by being fired or demoted for disclosing agency misconduct. If termination seems to have occurred shortly after protected whistleblowing, employees can challenge removals by arguing it was a pretext for illegal retaliation. They may also appeal to independent oversight boards if they believe they faced retribution.

Dealing with Termination from Federal Employment? Get the Help You Need Today

If you believe you’ve been unfairly dismissed, contact or call The Law Office of Justin Schnitzer at 202-964-4878 today to schedule your free consultation. Thanks to our firm’s proven track record of success, our seasoned federal employment attorneys are well-equipped to help you achieve justice. 

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.