AWOL Charges
Understanding Federal Employee AWOL Rights
AWOL stands for “Absent Without Leave,” and it is a charge that can be levied against a federal employee who is not present at their place of work without proper authorization or leave. While there can be many charges relating to leave use or absence from the workplace, absence without leave, or AWOL, is one of the most frequently used.
AWOL is considered a form of employee misconduct, and federal agencies have established rules and procedures for addressing and potentially disciplining employees who engage in this behavior. The severity of consequences for AWOL can vary depending on the circumstances and agency policies.
In some instances, agencies charge employees who are late to work with AWOL, while in other cases AWOL charges may be related to an extended absence relating to a medical condition, for example if an employee exhausts their leave, including FMLA leave, but is still unable to return to work.
Proving an AWOL Charge
To successfully prove an AWOL charge, an agency must show by a preponderance of the evidence that the employee was absent, and that their absence was not authorized or that their request for leave was properly denied. Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009); see Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 14 (2003).
To prove an AWOL charge, an agency must demonstrate that the employee was absent without authorization and, if the employee requested leave, that the request was properly denied. The Board has held that any charge of AWOL that has been sustained is inherently connected to the “efficiency of the service” described under Chapter 75.
Justifying an AWOL Charge
Often, AWOL charges used to take adverse actions include multiple specifications, as one instance of AWOL may be insufficient to justify an adverse action considering the Douglas factors. For example, the Board may find that two hours of AWOL on one day does not justify removing a long-standing employee with excellent performance, whereas 20 specifications of AWOL may warrant an adverse action. The Board will sustain an AWOL charge even if the agency proves some, but not all, of the charged period and may uphold an adverse action depending on the severity of the offense and other factors.
A few aggravating factors relevant to a charge of AWOL include a history of absences and tardiness/unreliable attendance by the employee and failure to correct the behavior when warned. Some mitigating factors favoring the employee include short and infrequent AWOL, extenuating medical circumstances, and even years of service.
In Mann v. VA, 27 MSPR 265, 267-268 (1985), the Board mitigated the removal to a 60-day suspension where an employee was AWOL for two and a half months but was 67 years old with various physical problems and had 37 years of service.
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Understanding the definition and dimensions of federal employee misconduct is the first step of the misconduct appeals process. It’s also essential to understand your due process rights, your opportunity to appeal, and how you can overturn a charge of discipline.
AWOL cases are complex misconduct cases. If you have been charged with AWOL, contact us. Our team has the experience and training to defend your career and vindicate your rights.
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Frequently Asked Questions
Federal employees are protected from discrimination based on sex, gender, color, race, national origin, religion, age, and disability, and have the right to file an EEO complaint against their agency should they face discrimination. Federal employees also have the right to due process before being subjected to an adverse action.
Yes, federal employees can sue for discrimination, but first you must exhaust administrative remedies, which includes filing a formal complaint with your agency and letting 180 days pass. In many instances, federal employees elect to pursue their EEO complaints through the EEOC’s hearing process instead of filing a civil action.
Federal employees must initiate contact with an EEO Counselor within 45 days of any act of discrimination. After an informal complaint stage, you will be issued a Notice of Right to File a formal complaint, which will permit you 15 days to do so.
Federal employees do not have the right to sue for wrongful termination the way private sector employees do, but most federal employees have the right to appeal a removal to the MSPB, which will adjudicate whether the Agency can sustain any charges raised against you.
Yes, most federal employees can file a complaint against their agency with the U.S. Office of Special Counsel (OSC) if they are facing whistleblower retaliation. If OSC does not accept your complaint for investigation and prosecution, OSC will issue you an Individual Right of Action (IRA) notice giving you the right to pursue corrective action at the MSPB. Federal employees do not have the right to sue in court under the Whistleblower Protection Act.