MSPB Law Blog

By John V. Berry, Esq., www.berrylegal.com

What is an AWOL charge?

Absence Without Leave (AWOL) cases at the Merit Systems Protection Board (MSPB) are known to involve a very specific form of misconduct. An AWOL charge essentially alleges that a federal employee was absent from work without pay and permission. The MSPB, for the most part, has found a connection or nexus between absent federal employees and a disruption of the federal workplace to justify discipline. However, at the same time, federal agencies commonly seem to make mistakes in this type of disciplinary action.  For the most part, they seem to forget the issue of potential disability or family medical matters that arise.  This type of situation is different than when a federal employee is on approved leave without pay (LWOP).  

An AWOL charge is one of the more common forms of charges for disciplinary actions for federal employees. The Office of Personnel Management (OPM) notes that it is one of the most common forms of disciplinary action in their article on the subject.   It is important to understand the nature of this type of charge when an employee is defending against this type of charge at the MSPB or during proposed discipline.  I have included some samples of AWOL charges to give a sense of how these types of charges can be presented.  

Sample AWOL Charges

The following are some examples of conduct unbecoming charges that might be lodged against a federal employee:

1. On April 4, 2018, you did not report for duty at your workstation and you provided no explanation for your absence;
2. On February 2, 2019, you reported for work, but then after reporting in, left your office and went off-site without permission;
3. On January 12-19, 2019 you were absent from work without permission and then were again absent from work on February 10-24, 2019;

Elements Needed to Prove AWOL Charge

An AWOL charge is proven by demonstrating that the employee committed the misconduct alleged. In order to prove a charge of AWOL charge at the MSPB an agency needs to be able to do so by a preponderance of the evidence or by 51% of the evidence provided. The federal agency will need to establish that the employee was absent, and that his or her absence was not authorized, or that his or her request for leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 277 (2003).

Defenses to AWOL Charges

There are a number of different types of methods of defense for AWOL charges. Some of the more common ones include:

1. FMLA Defense: The federal agency asserting AWOL charges against a federal employee holds the burden of proving that it properly denied FMLA leave in taking an AWOL based disciplinary action against an employee who is eligible for leave under the FMLA. Ellshoff v. DOI, 76 MSPR 54 (1997);
2. Disability Discrimination: A federal employee may allege that the Agency issued an AWOL charge on the basis of disability discrimination.  If a federal employee who has been removed for AWOL charges raises an affirmative defense of disability discrimination, he or she must show that he or she is a person with a disability entitled to the protection of disability discrimination laws. Davis v. Department of Veterans Affairs, 106 MSPR 654 (2007);
3. Military Discrimination: Under military anti-discrimination laws and case law, an employee who is ordered to active military duty  should not have been charged AWOL. Jeffrey v. Department of the Navy, 25 MSPR 697 (1985).

The number of potential defenses to an AWOL charge are varied and require the assistance of a attorney knowledgeable in federal employment law to determine the best strategy. It is often the case that a federal agency tends to forget the fact that an employee or an employee's family are undergoing medical issues in issuing AWOL charges.  It is far better for the federal agency involved to work with the federal employee during this difficult period than attempting to impose an adverse action.  

Contact Us

In sum, when facing an AWOL disciplinary charge it is very important to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.