When one of our employees ends up in hot water for a serious crime, the first thing we hear is “Why didn’t you can that employee on the spot?” Well, I went to our lawyers and asked that very same question and they fired me! (Joking) They graciously agreed to write a blog post. It kind of makes me feel bad about telling lawyer jokes at a party last night. (I’m kidding, I’m kidding…) Many thanks goes out to the TSA legal team for all they have done for our blog! ~ Blogger Bob
From our Lawyers:
Our Blog readers have asked why TSA simply does not fire an employee “on the spot” when the employee is arrested for a serious crime. Here is a general answer to that question.
Like other Federal employees, TSA employees who have completed a trial period (or probationary period, if applicable) are entitled to certain procedural safeguards and due process prior to removal from their government position.
The procedural safeguards for TSA non-trial period employees are set forth in TSA’s policy on addressing unacceptable performance and conduct. Prior to being removed, an employee is entitled to receive written notice of the agency’s proposal to terminate their employment, entitled to review any and all evidence relied upon, and the employee must be given an opportunity to respond to the alleged misconduct, orally and/or in writing. This is the “due process” referenced above.
TSA must have sufficient factual information to propose an employee’s removal. Arrests are usually based on off-duty misconduct, and TSA will not likely have sufficient information/evidence to immediately initiate a removal, even if the arrest is based on a serious violation of law. TSA officials work closely with Federal, state and/or local law enforcement officials to gather all of the information necessary to take appropriate action. Once the information/evidence is gathered, the proposal to remove is issued and the employee generally has seven days to respond to the proposed removal.
An indefinite suspension is also an option available to TSA management when an employee has been arrested, there is more than a mere suspicion or allegation of misconduct, and management believes prompt action is necessary. An employee who is indefinitely suspended is not in the work place and does not receive pay during the indefinite suspension. In the interim, TSA decides how to address the misconduct.
By placing an employee who has been arrested for a serious crime on indefinite suspension, TSA can protect the security of other TSA employees and the traveling public while taking the time to effectively investigate the misconduct and provide the affected employee with his/her job related procedural safeguards.
In certain cases involving Transportation Security Officers (TSOs), TSA has special authorities, which enable us to act more quickly when TSOs engage in serious misconduct. Specifically, when there is clear evidence that TSOs have engaged in conduct involving theft, illegal drugs or alcohol use on duty, managers may issue what we refer to as a “one step” removal notice, which immediately terminates their employment. Similarly, when the agency becomes aware of allegations of TSOs engaging in serious misconduct but needs to gather additional information, a “one step” indefinite suspension may be used. In these “one step” actions, the employee is provided the opportunity to respond before the “one step” removal or “one-step” indefinite suspension is effected. This opportunity to respond is known as the “pre-decisional” provision under TSA policy and comports with due process requirements. The “one-step” concept allows management to effect the action immediately after the pre-decisional requirement is completed, if appropriate.
In most cases, the agency spokespeople cannot disclose exactly what disciplinary action, if any, is taken against an employee. This is because specific information concerning employees, including any disciplinary action taken, is protected by the Privacy Act, which often constrains us from disclosing the information. Even if we cannot tell the public these details, rest assured that TSA takes such issues very seriously and will take appropriate action to address any misconduct.
This has been a word from our TSA Lawyers.