Understanding Constructive Suspensions in Federal Employment: Your Appeal Rights

Outside of a furlough, federal employees often face situations where their agency unilaterally changes their work status, potentially forcing them into a period of forced absence from duty. When does this administrative action cross the line into an appealable constructive suspension? This post focuses on how the Merit Systems Protection Board (MSPB) views these claims and what criteria must be met for an employee to successfully appeal. We also touch upon considerations for bargaining unit employees (union members).

When is a Suspension a Constructive Suspension in Federal Employment?

A federal agency is empowered to take several actions that control an employee's access to the workplace or their duty status. These actions commonly include: forcing the use of accumulated leave (enforced leave), placing an employee into Leave Without Pay (LWOP) status, or otherwise restricting their access to the workplace. In short, employees do not have "a right" to access the workplace and your agency can restrict that access virtually any time for any reason. The issue then shifts to the duty status of the affected employee and the tangible harm incurred by that employee.

The question concerning all the above is what enforcement mechanisms you have to overturn the status the agency placed you in and return to work, or at least recover any damages (i.e., lost pay) you suffered. This article focuses on the Merit Systems Protection Board (MSPB) appeal route, which generally applies to adverse actions, including suspensions and touches up bargaining unit considerations. However, it also applies in significant part to an EEO complaint as a "mixed case". A mixed case is a complaint (appeal) involving a personnel action that is appealable to the MSPB and that includes allegations of discrimination.

Key Requirements for MSPB Jurisdiction

An employee's voluntary absence from duty is never appealable to the MSPB. The MSPB only has jurisdiction over adverse actions, which include a suspension for more than 14 calendar days. However, the MSPB does have jurisdiction (in most cases) over agency imposed involuntary absences from duty that are 15 calendar days or more.

The legal basis for a constructive suspension appeal rests on the definition of a suspension under 5 U.S.C. § 7512(2) and 5 U.S.C. § 7513(d). To have a valid constructive suspension claim appealable to the MSPB, two main criteria must be met:

1. The duration threshold: The enforced leave status must result in a loss of pay or "loss" of leave (annual or sick) for 15 consecutive days or more (See 5 C.F.R. § 1201.3(a)(2)).

   • Enforced leave of 14 days or less limits the employee to a negotiated grievance, administrative grievance, or EEO complaint.

2. The involuntary element: The employee must be able to show the agency placed them in a non-duty or non-pay status against the will of the employee. The dispositive issue is always: Who initiated the absence—the employee or the agency? (See Johnson v. U.S. Postal Service, 110 M.S.P.R. 679, ¶ 8 (2009)).

If the enforced absence does not result in a loss of pay or leave (e.g., being placed on paid administrative leave for any duration), it is generally not appealable to the MSPB. The MSPB only has jurisdiction if the employee was required to use annual leave, sick leave, or LWOP during the administrative leave period, or was otherwise unpaid.

The Two Common Constructive Suspension Scenarios

The MSPB has recognized that constructive suspension claims typically (not all inclusive) arise in two distinct scenarios where the employee's absence is deemed involuntary:

1. Enforced Leave Pending Inquiry: When an agency places an employee on enforced leave pending an inquiry into their medical ability to perform their duties (See Brenner v. Dept. of Transp., 116 MSPR 397 (2011)).

2. Denial of Modified Duties: When an employee who is absent from work for medical reasons (like FMLA) asks to return to work with modified duties, and the agency denies the request (See Brenner, 116 MSPR 397; Reed v. U.S. Postal Service, 99 M.S.P.R. 453, ¶ 3 (2005)).

In the second scenario, the employee must generally show that the agency was obligated by policy, regulation, or contract to offer available modified work but failed to do so (Johnson, 110 M.S.P.R. at ¶ 9). Another scenario, which is arguably common but rarely rises to the level of an MSPB appeal, is when an agency constructively suspends an employee who is under investigation.

Constructive Suspension Nuance: Important Considerations

The burden of proof to establish jurisdiction for a constructive suspension appeal rests with the employee. The employee must prove the involuntariness of their absence by a preponderance of the evidence.

• Voluntary Election/No Realistic Alternative: If an agency provides an employee a choice to return to their regular position, and the employee is unable or unwilling to do so, the absence is typically considered voluntary beginning with the date of the agency offer. This is often upheld even when the employee is faced with "unpleasant choices," unless the employee can show the agency lacked a reasonable basis for the adverse action it threatened (See Garcia v. Dept. of Homeland Sec., 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc) for involuntary resignations/retirements, an analogous concept).

• Termination of Light Duty: The termination of a light-duty assignment, by itself, is not an appealable adverse action. It only becomes a constructive suspension if the agency was required to provide work within the employee's restrictions and failed to do so, resulting in an absence of more than 14 days (Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 15 (2010)). We often see this situation develop in connection with Reasonable Accommodation claims or Worker's Compensation issues.

• Non-Consecutive Absences: Generally, nonconsecutive periods of absence cannot be combined to establish the MSPB's 15-day jurisdictional threshold.

• Employee-Initiated Absence: If the employee initiated the absence (e.g., requested sick leave or indicated they could not work indefinitely), their subsequent period of absence, even if involving LWOP, is typically not appealable to the MSPB unless the agency's improper actions directly caused the employee to lack a meaningful choice (Alston v. Social Security Admin., 95 M.S.P.R. 252 (2003)).

Constructive Suspension Appeal Rights for Bargaining Unit Employees

A federal employee who is a member of a bargaining unit must consider the role of their collective bargaining agreement (CBA) when deciding on an appeal route. The Federal Service Labor-Management Relations Statute (5 U.S.C. § 7121) governs the relationship between CBAs and statutory appeal rights.

The Election of Forum Rule

For adverse actions appealable to the MSPB (including constructive suspensions of more than 14 days), a bargaining unit employee typically has a choice between two forums:

1. Appeal to the MSPB: Directly appealing the constructive suspension to the Merit Systems Protection Board.

2. Grieve under the Negotiated Grievance Procedure: Filing a grievance under the procedures established in the employee's CBA.

This choice is governed by the election of forum rule (See 5 U.S.C. § 7121(e)(1)). The employee must choose one and, once the initial filing is made, the choice is generally irrevocable.

Note that the role of any agency grievance procedure is currently excluded from our discussion. These internal procedures vary widely among agencies because they are determined at the agency level and are currently undergoing major revisions as directed by the Trump administration.

Exceptions and Considerations:

• Exclusions from the CBA: If the CBA specifically excludes suspensions of more than 14 days from the negotiated grievance procedure, the employee's sole avenue of appeal is the MSPB. Employees must consult their specific CBA to confirm this.

• Discrimination Claims: If the constructive suspension claim is mixed with an allegation of prohibited discrimination (e.g., based on disability, race, etc.—a "mixed case"), the employee may elect to file either:

  • An MSPB appeal (where both the adverse action and discrimination are adjudicated).

  • A grievance under the CBA (where discrimination claims may be adjudicated through a negotiated process, often leading to binding arbitration).

• Non-Appealable Actions: For enforced leave actions 14 days or less (which are generally not MSPB-appealable), a bargaining unit employee's primary recourse is almost always the negotiated grievance procedureoutlined in the CBA.

Crucially, bargaining unit employees should contact their union representative immediately upon being placed in an enforced non-duty status to understand the specific language of their CBA and make an informed decision regarding their election of forum.

How InformedFED Can Assist with Constructive Suspension Appeals

Navigating the complexities of a constructive suspension claim—especially the narrow window for establishing MSPB jurisdiction—can be overwhelming. InformedFED offers specialized consulting and administrative support services to federal employees facing adverse actions, including constructive suspension.

InformedFED's services can provide you critical support by:

• Jurisdictional Analysis: Consultants, who are experienced subject matter experts (SMEs) in federal labor law, can quickly evaluate the facts of your case to determine if you meet the 15-day threshold and the involuntary absence criteria necessary to establish MSPB jurisdiction.

• Forum Election Guidance: For bargaining unit employees, InformedFED can provide strategic consulting on the election of forum (MSPB vs. Negotiated Grievance) based on the specifics of your CBA and the merits of your case, helping you make the crucial initial, irrevocable choice.

• Administrative Support & Filing: They offer transactional support in preparing the initial appeal documentation, ensuring the appeal is properly formatted and filed with the correct MSPB regional or field office within the strict filing deadlines (typically 30 days from the effective date of the action or receipt of the decision).

• Case Strategy: InformedFED assists in developing a coherent case strategy, helping you organize the necessary evidence to demonstrate the agency's action was involuntary and resulted in a jurisdictional loss of pay or leave. They have experience with MSPB appeals, EEO complaints, and labor relations matters, which covers the full range of potential appeal avenues for these types of actions.

• Preparing Documents to Establish Evidence and the Record: This is critical. In the absence of supporting evidence, affected employees must establish evidence that accurately documents events and incidents in support of their position.