The Douglas Factors: What You Need to Know
When a federal employee faces discipline for misconduct, those determining the penalty must consider certain criteria known as the Douglas Factors. These 12 factors play a key role in the outcome of federal employee discipline cases. However, despite the importance of these criteria, many employees aren’t familiar with them. Here’s what anyone who works for the federal government needs to know about the Douglas Factors.
What Are the Douglas Factors?
In 1981, the Douglas vs. Veterans Administration (5 MSPR 280) case laid out 12 criteria — now known as the Douglas Factors — that the U.S. Merit Systems Protection Board still follows today. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. In many cases, managers act as deciding officials in discipline cases.
A familiarity with the Douglas Factors will help managers understand the analysis they must undertake when making disciplinary decisions. For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position.
Factor 1: “The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated”
The first Douglas Factor examines how the level of misconduct relates to an employee’s particular duties, as well as if the offense was committed intentionally. This means that when evaluating the seriousness of an offense, a manager must consider whether the misconduct was intentional, inadvertent or the result of negligence. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties.
Managers must also consider the scope of the misconduct in the context of an employee’s position and job duties. If the offense is related to duties that are at “the heart” of an employee’s position, penalties may be more severe. For instance, a law enforcement officer who is convicted of breaking laws may result in harsher penalties than, say, an employee who accidentally nods off while on a night shift.
Factor 2: “The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position”
Those in positions of higher levels of trust and authority, such as supervisors, are held to a greater level of accountability than those in non-supervisory positions. When an employee with a high level of trust and authority violates regulations, they generally face harsher penalties.
Factor 3: “The employee’s past disciplinary record”
In theory, discipline should be both corrective and progressive. That translates into harsher penalties for repeat offenders. Once an employee has a disciplinary record, it’s harder to defend against new charges of misconduct and more difficult to argue that a mitigated penalty is deserved.
Factor 4: “The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability”
The fourth Douglas Factor requires managers to take an employee’s past performance into account. Has an employee been on the job for a long time? Do they have a positive track record? Managers should also take into account past service in the armed forces or other government employment, as well as positive reviews from past supervisors or co-workers.
Factor 5: “The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties”
The fifth Factor relates to an employee’s ability to do their job relative to the specific offense committed. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. Such cases call into question an employee’s ability to perform their specific job duties with integrity.
Factor 6: “Consistency of the penalty with those imposed upon other employees for the same or similar offenses”
Managers must apply penalties that are similar to those imposed in like cases. For instance, two co-workers with the same job duties and similar work histories both fall asleep during a night shift. Under the sixth Factor, the workers should receive similar penalties, rather than one getting fired and one receiving a written warning.
Factor 7: “Consistency of the penalty with any applicable agency table of penalties”
Many federal agencies maintain tables of penalties that detail discipline options for common offenses. Employees should have access to these tables, and managers should use these parameters as a guide when imposing discipline.
Factor 8: “The notoriety of the offense or its impact upon the reputation of the agency”
As a general rule, the more negative publicity caused by an offense, the harsher the discipline. If an employee’s misconduct generates publicity and negative attention to an agency or otherwise damages its reputation, expect a more severe penalty.
Factor 9: “The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question”
The ninth Douglas Factor asks whether an employee knew — or should have known — about the potential implications of their actions. For instance, did the employee have access to the table of penalties? Did management send out a memo clarifying rules? Did the employee have access to a handbook that detailed proper procedure and policy? If employees have access to regulations surrounding an offense, managers have a stronger case for imposing discipline when those rules are broken.
Factor 10: “Potential for the employee’s rehabilitation”
Can an employee take responsibility, correct their behavior and come back to the job? Managers must take an employee’s propensity for rehabilitation into account. If an offense results in a loss of trust or an employee isn’t willing to be accountable for their actions, managers may not be willing to take the chance.
Factor 11: “Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter”
This Factor takes mitigating circumstances into account. If an employee was experiencing stressful situations — such as a mental health issue, divorce or a death in the family — that contributed to the offense, they may present those and ask for leniency.
Factor 12: “The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others”
The final Douglas Factor asks both manager and employee to consider alternative penalties. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. While each case is different, seeking alternatives may be useful.
A knowledge of the Douglas Factors is helpful for both federal employees and managers. As these factors play a key role in disciplinary cases, understanding how they work can help implement fair and effective penalties. Just knowing the rules, however, can’t fully protect you if a case should arise. Which is why Federal Employee Professional Liability Insurance is critical. Starr Wright USA is the nation’s leading provider of FEPLI. With policies that cover up to $2,000,000 in liability coverage and up to $400,000 in administrative defense coverage, and a team of former Assistant US Attorneys and Federal Employees, Starr Wright USA will be your trusted advocate throughout the entire process.
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Opinions expressed in this article are for informational purposes only and do not constitute legal advice. Douglas Factors matters vary from case to case and federal employees should consult with an attorney.
Article sponsored by Starr Wright USA.
Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. For more information, visit WrightUSA.com. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc.
Sources
https://www.mspb.gov/studies/adverse_action_report/10_DeterminingthePenalty.htm
https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBAT
https://www.ivancielaw.com/federal-employment-law/what-are-the-douglas-factors/
https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/douglas-factors.pdf
