Chapeter 43 Preformance-Based Actions

Melville Johnson

October 28, 2020

There are two different chapters under which an agency can demote or remove an employee for performance-based reasons: Chapter 43 and Chapter 75. Agencies may take choose to take action under Chapter 75 because they would prefer not to have the formal performance improvement period, which is required for Chapter 43. For more information about Chapter 75 actions, please see the section on Chapter 75 actions.

Under Chapter 43 actions, the Agency has a lower standard of proof to take its actions and is not required to prove that the adverse action will promote the efficiency of service. However, the Agency must prove that the employee’s performance deficiency is in a crucial element.

Pursuant to 5 U.S.C. §4303, “an employee whose reduction in grade or removal is proposed under this section is entitled to: (A) 30 day’s advance written notice of the proposed action (which identifies specific instances of unacceptable performance and the critical elements of the position involved); (B) be represented by an attorney or other representative; (C) a reasonable time to answer orally and in writing; and (D)a written decision.”

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It is also important to note, pursuant to 5 U.S.C. §4303(d), that if the employee is not reduced in grade or removed, and the employee’s performance continues to be acceptable for one (1)year from the date of the advanced written notice, any entry or notation of the unacceptable performance, for which the action was proposed, shall be removed from any agency record relating to the employee.

The federal employment attorneys at Melville Johnson, P.C. are highly experienced in MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters.

The federal employee attorneys at Melville Johnson, P.C. are highly experienced in MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters. Call or message us today to discuss your situation and learn how we can assist you.

This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.

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