Purpose: This IRM provides policies and guidance for employee performance issues (misconduct) and conduct. It may be supplemented by Human Capital Office (HCO) interim guidance.

Audience: Unless otherwise indicated, the policies, authorities and instructions contained in this IRM apply to all IRS business units, except employees who are not serving a probationary/trial period or a temporary/term appointment excluding contractors and Chief Counsel.

Policy Owner: The IRS Chief Human Capital Officer (CHCO) is the policy owner.

Program Owner: The HCO, Compliance and Communication (C&C) Office, Policy Office (PO), and Employee Relations (ER) are the program owners for this IRM.

Primary Stakeholders: Human Resources Operations and Shared Services and Talent Acquisition are the primary stakeholders for this IRM.

This IRM provides the IRS misconduct policy and includes information about taking performance action under 5 CFR 752 in lieu of 5 CFR 432. The PO and ER gauge the effectiveness of the policies in this IRM based on feedback from customers and program owners. During IRM review and publishing, sections may be revised, added, or deleted, based on feedback or changes in law, rule, or regulations.

In collaboration with other HCO organizations and Servicewide stakeholders, the PO develops policies to address misconduct in compliance with applicable laws and regulations.

The following activities help ensure program success:

Administrative Leave - Management-Initiated (Conduct) - A type of leave used to place an employee in a non-duty status, without charge to personal leave, loss of pay, or reduction in credit time or service for management-initiated actions for the purpose of conducting an investigation. Refer to IRM 6.630.4.3, Administrative Leave - Management-Initiated (Conduct).

Admonishment - The least severe type of discipline. Letters of admonishment related to misconduct are filed in an employee’s non-performance file (Drop File).

Adverse Action - Suspensions, removals, reductions in grade or pay, furloughs of 30 days or less, per 5 CFR 752. Adverse actions are permanent records filed in an employee’s Official Personnel Folder.

Alternative Discipline (AD) - A non-traditional approach to correct misconduct. Refer to IRM 6.752.1.14, Alternative Discipline.

Appellant - An individual who submits an appeal to the Merit System Protections Board (MSPB).

Basic Pay - The total amount of pay received at a rate fixed by law or administrative action for the position held by an employee before any deductions, including any special rate under 5 CFR 530, Pay Rates and Systems, Subpart C, or any locality-based comparability payment under 5 CFR 531, Pay Under the General Schedule, Subpart F, or other similar payment under other legal authority. Basic pay includes night and environmental differentials for prevailing rate employees. Basic pay excludes additional pay of any other kind. Refer to 5 USC 53, Section 5343(f), Pay Rate and Systems, Prevailing rate determinations; wage schedules; night differentials and 5 CFR 532.511, Environmental differentials.

Cause - An adverse action (suspensions and above) may only be taken against an employee for such cause as will promote the efficiency of the service.

Clean 50 Settlement (also known as a Clean Record Settlement) - An agreement whereby the employee’s Standard Form 50 (SF-50), Notification of Personnel Action, states they resigned or retired (usually for personal reasons), instead of stating the employee resigned/retired in lieu of receiving an adverse action. A Clean 50 settlement essentially cancels the 5 CFR 752 action. Refer to IRM 6.752.1.31, Settling a Corrective Action.

Complainant - An individual who files a complaint typically through the Equal Employment Opportunity (EEO) complaint process.

Corrective Action - For purposes of this IRM, a non-disciplinary, disciplinary, or adverse action taken to address misconduct and prevent reoccurrence.

Current Continuous Appointment - A period of employment or service immediately preceding an adverse action without a break in federal civilian employment of a workday.

Deciding Official - The manager with the delegated authority to serve as the Oral Reply Officer and take an adverse action per 5 CFR 752. Refer to IRM 6.752.1.8, Delegation of Authority.

Disciplinary Action - Admonishments and reprimands.

Discipline - A disciplinary/adverse action taken to correct employee misconduct.

Douglas Factors - The MSPB identified 12 factors (Douglas Factors) that management considers as appropriate, when determining to suspend, remove, reduce in grade/band, or furlough for 30 days or less. Refer to IRM 6.752.1.20, Douglas Factors.

Drop File - A personnel file securely maintained by an employee’s manager. It is a temporary file that holds documents unrelated to performance, such as corrective actions addressing misconduct. The Drop File is maintained separately from Official Personnel Folders, Employee Performance Folders, and Employee Medical Folders.

Efficiency of the Service - An adverse action promotes the efficiency of the service when the grounds for the action relate to either an employee's ability to perform their duties satisfactorily or to some other legitimate government interest.

Employee - An individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed one year of current continuous employment in the same or similar position under other than a temporary appointment limited to one year or less. Refer to 5 USC 7501, Definitions.

Grievant - An individual who files a grievance per IRM 6.771.1, Processing Agency Grievances.

Harmful Error - An error made by the IRS in the application of procedures that may have caused the Deciding Official to reach a different decision from the one they would have reached had the error not been made. Examples may include failing to provide the employee with their appeal rights, failing to provide the full Advance Notice period, or considering information/evidence that was not stated in the advance or supplemental notice.

Indefinite Suspension - The placing of an employee in a temporary status without duties and pay pending investigation, inquiry, or further action. Indefinite suspensions continue for an indefinite period and end with the notice of action.

IRS Payband System - The performance-based classification and pay system, outlined in Office of Personnel Management (OPM) criteria, which covers all IRS managers including senior managers, department managers, and frontline managers. Referred to as band instead of grade. Refer to 5 USC 95, Personnel Flexibilities Relating to the Internal Revenue Service.

IRS Restructuring and Reform Act of 1998 (RRA ’98) - On July 22, 1998, the president signed RRA ’98 into law, which requires mandatory termination of any IRS employee who commits any of the ten specific acts or omissions described in Section 1203(b). Refer to Document 12011, IRS Ethics Handbook, Chapter 9E, for the 1203(b) provisions. RRA ‘98 grants the Commissioner of Internal Revenue the exclusive right to mitigate the penalty of termination to a lesser penalty. This authority cannot be re-delegated.

Last Chance Agreement (LCA) - A written agreement that gives employees a final chance to avoid an adverse action (for example, a removal or suspension). The agreement contains conditions related to the misconduct that the employee must meet for a defined period (for example, one year) and a statement waiving appeal and/or complaint (grievance) rights in the event of a breach of agreement.

Last Rights - An optional management-initiated meeting held with an employee prior to issuing a proposed removal action. Prior to receiving the proposal letter, the employee is given an opportunity to voluntarily resign, retire, or request a change to lower grade, to avoid having an adverse action recorded in their Official Personnel Folder (OPF). Refer to IRM 6.752.1.15, Last Rights/Voluntary Separations.

ER Specialist - Specialists in ER who provide guidance to managers addressing employee misconduct. They support managers with processing a misconduct case, including any appeal, if applicable.

Matter of Record - Prior discipline referenced and kept to support, for example, Douglas Factor 3, Past Disciplinary Record. Refer to IRM 6.752.1.20, Douglas Factors. Refer below for matter of record timeframes:

Nexus - A reasonable connection or factual relationship between the reason(s) for the action taken and the efficiency of the service. Nexus is presumed if the misconduct occurs while on duty or on government premises and must be established if the misconduct occurs while the employee is not on duty or on government premises. In taking an action based on off-duty misconduct, consideration should be given to negative publicity, notoriety of the offense, strained relations, or apprehension on the part of fellow employees, and evidence or indication of dishonesty.

Non-disciplinary Actions - A corrective action that is not considered discipline (refer to the list below). Employees may not grieve or dispute non-disciplinary actions unless some action was taken that put the employee at a disadvantage (such as denial of an Alternate Work Schedule). Managers retain these actions in the Drop File for up to two years. Not all non-disciplinary actions are retained in the drop file unless the employee requests it.

Notice Period - The period that begins the day after the date an employee receives a proposal letter and ends on the effective date of the action, if taken. If the notice period ends on a Saturday, Sunday, or federal holiday, it is extended until the next business day. The IRS must provide notice as required by law before a decision can be issued.

Offense - A violation of law, regulation, rule, policy, or procedure.

Official Personnel Folder (OPF) - A file containing records for an employee’s federal employment career. The records in the OPF protect the legal and financial rights of the government and the employee. The OPF is part of the government-wide system of records.

Oral Reply Officer (ORO) - The Deciding Official for the proposed action. Refer to IRM 6.752.1.8, Delegation of Authority, and IRM 6.752.1.23, Oral/Written Reply.

Penalty - A corrective action taken to address an employee’s misconduct.

Preponderance of the Evidence - The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. This is the standard of proof the IRS must meet when taking a suspension for more than 14 days, removal, reduction in grade/band or pay, or a furlough for 30 days or less.

Prior Offense - A previously imposed penalty which is still a matter of record. An employee’s past discipline record may be reviewed when considering Douglas Factor 3, Disciplinary Record.

Progressive Discipline - The penalty for misconduct is tailored to the facts and circumstances; however, escalating penalties may be imposed for repeat misconduct. Progressive discipline is not required, and subsequent offenses may or may not be the same or like the prior offense. When using progressive discipline and considering Douglas Factor 3, Past Disciplinary Record, the prior penalty must still be a matter of record.

Proposing Official - The manager with the delegated authority to propose a suspension, removal reduction in grade/band or pay, or a furlough of 30 days or less. Refer to IRM 6.752.1.8, Delegation of Authority.

Reduction in Grade/Band - The involuntary assignment of an employee to a position at a lower classification level under a position classification system.

Reduction in Pay - An involuntary reduction in the rate of basic pay fixed by law or administrative action for the position held by the employee. Reduction in pay does not include the involuntary loss of any differentials such as standby pay, night work, overtime, hazardous duty, or holiday pay.

Removal - An involuntary separation based on the decision of a delegated authority which terminates the employer-employee relationship.

Reprimand - A disciplinary action used when an action to address misconduct warrants an action more severe than an admonishment, but less severe than a suspension or an action involving a loss of grade/pay. Letters of reprimand are filed in an employee’s OPF.

Standard Form 50 (SF-50) - A Notification of Personnel Action that contains certain employment information. It is a permanent document that is filed in an employee’s OPF. Refer to Document 12787, SF-50: Notification of Personnel Action – An Overview.

Substantial Evidence - The degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. This is a lower standard of proof than preponderance of the evidence and is the standard of proof the IRS must meet when taking a suspension of 14 days or less.

Suspension - The placement of an employee in a temporary status without duties or pay for misconduct. Suspensions served solely on non-duty days do not meet the definition of suspension.

Delegation Order 6-29, Authority to Address Employee Performance or Conduct Issues, located in IRM 1.2.2, Servicewide Delegations of Authority

Document 9300, 14 General Principles of Ethical Conduct for Federal Employees

Document 11500, IRS Manager’s Guide to Penalty Determinations (Penalty Guide)

Document 12011, IRS Ethics Handbook

IRM 6.610.1.3.15, Conduct-Related Actions

IRM 6.735.1, Ethics Program Requirements

IRM 6.735.2, IRS Outside Employment

Adverse actions cover an employee:

Reference: 5 CFR 752.201(b), Employees covered.

This IRM covers:

Per 5 CFR 752, Subparts A, B and D, actions may be taken under these subparts for such case as will promote the efficiency of the service.

Per 5 CFR 752, Subpart F, actions may be taken under this subpart only for reasons of misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

Refer to IRM 1.2.2, Servicewide Delegations of Authority, for Delegation Order 6-29, Authority to Address Employee Performance or Conduct Issues.

Employees are expected to follow the ethics rules from the Office of Government Ethics, the Department of the Treasury, and the IRS (refer to Document 12011, IRS Ethics Handbook, and IRM 6.735, Ethics Matters). The absence of a specific rule covering an act that discredits an employee or the IRS, does not mean that such an act is condoned or allowed. Employees are also expected to follow work procedures to accomplish the IRS mission. Failure to follow the ethics rules or performance procedures may result in a corrective action.

Management’s right to discipline employees is covered in 5 USC 7106(a)(2)(A).

Management issues a corrective action when called for by the employee’s misconduct.

The IRS does not use a standard schedule of offenses and penalties; however, the Penalty Guide (Document 11500) is available to assist management in determining appropriate penalties. The guide does not cover all offenses. If an offense is not listed, it does not mean a penalty cannot be imposed. Except for mandatory penalties required by law, such as misuse of a government vehicle or violations of RRA ’98, the penalties suggested are guidelines, not a rigid standard. Deviations from the guide are allowed and greater or lesser penalties may be imposed, based on the facts of the case.

When contemplating a corrective action, management considers each case individually based on its own merits and supporting evidence.

Under no circumstances shall discipline be based on race, color, sex (including sexual orientation and pregnancy), parental status, religion, national origin, age (40 or older), disability (mental or physical), genetic information, marital status, political affiliation, or reprisal for protected activity. The IRS also prohibits retaliation for engaging in the EEO process.

Management may become aware of incidents of misconduct through a variety of means:

Managers must address misconduct immediately and contact ER for guidance. Contacting ER ensures managers follow policy and procedures. It also ensures compliance with IRM 6.332.2.4, Prior Performance & Misconduct Check/Screening.

During interviews with employees to discuss misconduct, if the employee refuses to respond to questions, management will advise them per 31 CFR 0.210. If an employee asserts the right not to incriminate himself/herself or ‘pleads the Fifth,’ contact ER immediately. The investigation may need to be referred to TIGTA if it concerns a criminal matter. As directed, employees must respond to questions truthfully and under oath when required, whether orally or in writing, and must provide documents and other materials concerning matters of official interest when directed to do so by competent Treasury authority (for example, TIGTA or an IRS manager). Failure to respond or provide documents, as directed, may result in corrective action.

TIGTA initiates conduct investigations based on complaints or allegations about employees originating from management, taxpayers, taxpayer representatives, or allegations made by IRS employees.

Any allegation or information that an employee may have committed a crime must be promptly reported to TIGTA (refer to IRM 6.735.1.3, Reporting Ethics Violations). Management must not conduct their own investigation into these matters unless authorized by TIGTA.

Referral of TIGTA’s Reports of Investigations (ROI) is only made on a need to know basis; however, ROIs are sent to managers with the delegated authority to issue corrective action. All persons must treat the ROI in a confidential manner.

If management thinks the ROI requires clarification, development of more facts, or further investigation, they will contact their assigned ER specialist for guidance.

Upon TIGTA’s release of a ROI to the IRS for adjudication, the IRS is authorized to use, copy, and release relevant portions when appropriate. Management may only keep a copy of the report for the matter being adjudicated.

When taking an admonishment, reprimand, or a suspension of less than 14 days, the IRS must prove by substantial evidence that the employee engaged in the misconduct described in writing. Refer to IRM 6.752.1.4, Terms and Acronyms, for definition of substantial evidence.

When taking a suspension of more than 14 days, removal, reduction in grade/band or pay, or furlough for 30 days or less, the IRS must prove by a preponderance of evidence that the employee engaged in the misconduct described in the Advance Notice. Refer to IRM 6.752.1.4, Terms and Acronyms, for a definition of preponderance of evidence.

An appellant has the burden to prove the IRS committed a harmful error in their suspension of more than 14 days, removal, reduction in grade/band or pay, or furlough for 30 days or less.

AD is a non-traditional approach to correct misconduct.

AD objectives:

Management has the option of offering AD to employees if they determine a letter of reprimand or suspension of 1 to 14 days will be imposed/proposed. If management believes AD is a feasible option to correct the employee’s conduct issue, discussions must occur prior to entering into an agreement or issuing a reprimand or proposal to suspend for less than 14 days. Management and the employee must agree on the AD.

AD options may not be used in combination with traditional discipline, such as civic work plus a one-day suspension or preparing a research paper and issuance of a letter of reprimand.

Management is not required to accept the AD suggested by the employee or their representative.

AD agreements must include the following:

If the employee violates the terms of the AD agreement (does not meet the requirements agreed upon), the penalty outlined in the AD agreement will be imposed immediately. For suspensions, an Advance Notice (proposal letter) is not issued. Instead, a decision letter is prepared outlining the reason(s) for the suspension. Per the terms of the AD agreement, the employee may not grieve the suspension; however, they may grieve whether the employee failed to comply with the terms of the AD agreement.

Management has the option of offering Last Rights to employees who may be issued a removal action taken under 5 CFR 752.

When an employee faces a potential removal action, he/she may choose to resign, retire, or request a change to lower grade prior to receiving the Advance Notice/proposal letter. An employee’s decision to resign, retire, or request a change to lower grade, is voluntary.

Management must contact their assigned ER specialist (or ER manager) before holding the Last Rights meeting to ensure adherence to policy and hiring compliance (for example, refer to IRM 6.332.2.4, Prior Performance & Misconduct Check/Screening).

Alternative Discipline - If management is considering a reprimand or a suspension of 14 days or less, prior to taking the corrective action, management must inform the employee that traditional discipline is being contemplated and give the employee five workdays to request consideration of an alternative form of discipline (Alternative Discipline). Refer to IRM 6.752.1.14, Alternative Discipline.

Suspension, Removal, Reduction in grade/band or pay, Furlough of 30 days or less - If management proposes one of these actions, the employee is entitled to:

For suspensions and above, employees may choose to be represented by an attorney or other representative. Refer to 5 CFR 752.203, 5 CFR 752.404 and 5 CFR 752.604.

For letters of admonishment or reprimand, employees have the right to file a grievance in compliance with IRM 6.771.1, Processing Agency Grievances.

For non-disciplinary actions, employees have the right to file a grievance if the action taken put the employee at a disadvantage.

The employee’s written designation of a representative is provided to the manager named in the Advance Notice. The manager provides a copy of the designation to their assigned ER specialist.

Representatives may exercise their functions without fear of reprisal, intimidation, or coercion.

Representatives are allowed a reasonable amount of time as appropriate to prepare for and present reply(ies) on behalf of the employee. This includes time to review documents or interview other IRS employees on relevant matters.

Per 5 CFR 752.203 and 5 CFR 752.404, the IRS will allow employees to be represented by an attorney or other representative unless such choice:

Within five calendar days of receiving the employee’s written designation of representative, if management is disallowing the representative, they will provide the written disallowance to the employee and the disallowed representative. The written disallowance must include:

The employee (not the disallowed representative) may appeal the disallowance by submitting a written appeal (e-mail is acceptable) within five calendar days of receiving the disallowance notice. The appeal and a copy of the disallowance notice are sent to ER’s Deputy Director, Field Operations. To find their name and contact information, refer to ER's Deputy Director, Field Operations.

Within 10 calendar days of receiving the disallowance appeal, ER’s Deputy Director, Field Operations will send the employee a final decision to allow or disallow the representative. The final decision may not be grieved, and the corrective action will continue.

The time periods must be enforced to avoid prolonging the Advance Notice period. The proposing official should consider reasonable requests for more time to designate another representative.

In Douglas v. Veterans Administration, 5 MSPR 280 (1981), the MSPB identified 12 factors (Douglas Factors) management must consider when determining an adverse action under 5 CFR 752.

Management must consider the relevant Douglas Factors for adverse actions under 5 CFR 752 that do not require a mandatory penalty (for example, misuse of a government vehicle or a Section 1203 violation). Some factors may weigh in the employee’s favor (mitigating factors) and others may constitute aggravating factors. Management’s determination of the appropriate penalty is decided on a case-by-case basis.

If an action is appealed to a third party, the deciding official will be questioned about their consideration of the relevant Douglas Factors, and they must be able to explain the reason for their penalty choice. A third party will decide whether management considered all relevant factors and if the penalty choice was within the bounds of reasonableness.

The 12 Douglas Factors are:

Any Douglas Factor considered by management must be specifically identified in the Advance Notice and the decision letter.

Contact the assigned ER specialist for guidance about considering the Douglas Factors.

Suspensions of 14 days or less - Per 5 CFR 752.203, management must provide an employee with written Advance Notice before effecting a suspension of 14 days or less. The written notice specifying the reason(s) for the proposed action must be issued to all employees 15 calendar days before effecting the action. The Advance Notice is not grievable.

Suspensions of more than 14 days, removals, reductions in grade or pay, furlough of 30 days or less - Per 5 CFR 752.404, management must provide an employee with written Advance Notice, which specifies the reason(s) for the proposed action, 30 calendar days before effecting these types of adverse actions . The Advance Notice is not grievable.

The Advance Notice of proposed action is drafted by a ER specialist. It is reviewed, approved, and issued by the manager with the delegated authority (proposing official). Refer to IRM 6.752.1.8, Delegation of Authority.

Management must work with their assigned ER specialist to ensure the contents of the Advance Notice follow law, rule, and regulation. Failure to include required information may result in the MSPB reversing the action taken.

An Advance Notice proposing a suspension, removal, reduction in grade/band or pay, or a furlough of 30 days or less will include, as applicable, the following information:

Management delivers the Advance Notice to the employee in person when possible. If personal delivery is not possible/appropriate (for example, the manager would need to travel since they are not co-located), management delivers the Advance Notice by encrypted e-mail. Management asks the employee to acknowledge receipt of the notice by signing and dating it. If the employee refuses to acknowledge receipt, the manager delivering the notice attests to delivery by signing and dating the notice and includes the following statement: Employee refused to acknowledge receipt; hand delivered [or emailed] on (date) at (time).

Employees usually remain in a duty status during the Advance Notice period unless they are a seasonal employee who is placed in non-duty status due to lack of work.

In compliance with the IRM 6.630 Absence and Leave series, employees may request and receive approval for leave during the Advance Notice period.

Management may rescind and reissue an Advance Notice if, for example, new information is discovered that may result in an additional charge (reason) or specification and/or a more severe penalty, a procedural error is found, or there is a change in the nexus. If the Advance Notice is rescinded, the Advance Notice period restarts.

If an employee chooses to resign or submit a retirement application during the Advance Notice period, management must not rescind the proposal letter since a resignation or retirement can be withdrawn or cancelled any time before the effective date.

5 CFR 752 authorizes an exception to the 30-calendar day Advance Notice period if management has reasonable cause to believe the employee committed a crime for which a sentence of imprisonment may be imposed. This exception is referred to as the crime provision.

The crime provision allows the IRS to shorten the Advance Notice period if management proposes an indefinite suspension or a removal. The Advance Notice period for a crime provision action is seven calendar days. All other procedural aspects of an adverse action apply; however, the timeframe to submit a written reply is shortened to seven calendar days. Refer to IRM 6.752.1.21, Advance Notice (Proposal Letter).

Reasonable cause describes a situation where the information at hand (evidence, for example) supports management’s belief that the employee committed a crime for which imprisonment may be imposed. A police arrest is not sufficient evidence by itself to establish a reasonable cause; however, a grand jury indictment, or detainment by a magistrate may be relied on to support reasonable cause.

Proposing an indefinite suspension based on an indictment under the crime provision allows management to defer a decision until judicial proceedings are completed and/or sufficient evidence is available for a removal, or the employee is cleared of the allegation.

If the misconduct occurred off duty and/or off government premises, there must be a nexus between the crime the employee is believed to have committed and the efficiency of the service. The nexus must be stated in the Advance Notice (proposal letter). There are exceptions. For example, if the employee is charged with an egregious act of misconduct or crime, such as murder, nexus can be presumed.

If management proposes a removal under the crime provision and the employee or his/her representative asserts that a written and/or oral reply to the proposed action would prejudice his/her defense in the criminal action, management and/or the ER specialist will consult with Area Counsel, GLS, before the proposing official decides if the proposed removal should be replaced with an indefinite suspension. Refusing to reply based on a belief that a written/oral reply would prejudice the employee's defense will not delay the action.

If management does not want to propose and/or take a removal action until the criminal proceedings are adjudicated and/or more evidence is received to support removal, management can consider proposing an indefinite suspension. An indefinite suspension allows the employee to quickly be taken off rolls while the matter is being adjudicated and/or investigated. Unlike a removal, an indefinite suspension is not based on provable misconduct; it is based on the IRS’s reasonable cause belief that the employee committed a crime for which the sentence of imprisonment may be imposed.

In addition to the other requirements in IRM 6.752.1.21, Advance Notice (Proposal Letter), a crime provision Advance Notice for an indefinite suspension must include the following statements:

The purpose of an oral and/or written reply is to give an employee and/or his/her representative an opportunity to present information in response to the proposed action in the Advance Notice (proposal letter) before a decision is made. Information may include, but is not limited to, a defense to the employee’s alleged misconduct, denial of any reasons for the proposed action, mitigating factors, and/or a request for a less severe action. There is no requirement for the employee or their representative, if applicable, to request an oral reply or provide a written reply. An employee may choose to make both a written and an oral reply.

An employee in active-duty status is given a reasonable amount of time, as stated in the Advance Notice (proposal letter), to prepare for (for example, review material relied on, secure affidavits, if desired, write a reply) and present oral and/or written replies.

The ORO is the deciding official who may redelegate that authority in compliance with Delegation Order 6-29.

To prepare for the oral reply, the ORO will:

During the Oral Reply, the ORO will:

After the oral reply, the ORO will review the verbatim transcript of the oral reply and edit, if needed.

Prior to reaching a final decision on the proposed action, if the ORO:

If management receives a request to postpone the oral reply or for additional time to submit a written reply, management must promptly provide the request to the assigned ER, who will assist in preparing the response. Absent a reasonable request for additional time, the established timeframes should be enforced to avoid unnecessarily extending the Advance Notice period.

A supplemental notice is issued to an employee if the proposing official and/or deciding official want to change the nexus statement or consider new or material information to support their proposal or decision, and the information was not stated in the proposal letter.

If a supplemental notice is issued to the employee, the employee may:

If the employee requests an oral reply, management will:

In lieu of a supplemental notice, management has the option to rescind the original proposal letter and issue a new proposal letter, which restarts the Advance Notice period.

The decision letter for:

The decision about an action proposed under 5 CFR 752 must be made by a higher management position than the proposing official. Refer to Delegation Order 6-29, in IRM 1.2.2, Servicewide Delegations of Authority. For CI employees, refer to IRM 1.2.2.7.18.1, Criminal Investigation Deviation from Servicewide Delegation Order 6-29, Authority to Address Employee Performance or Conduct Issues.

No discussion or consideration of information or evidence other than what was included in the Advance Notice or those raised by the employee or representative in an oral/written reply (if requested/submitted), may be considered when deciding. If the deciding official considers information/evidence not included in the Advance Notice or shared with the employee and/or representative, the action taken could be reversed. Refer to IRM 6.752.1.24, Supplemental Notice.

Management must work with their assigned ER specialist to ensure the contents of the decision letter follow law, rule, and regulations. In compliance with 5 USC 7701 (c)(2), Appellate Procedures, the MSPB will reverse the action taken if the appellant shows:

The decision letter will include, as applicable, the following information:

5 USC 7515 established mandatory minimum discipline to be taken when supervisors take or fail to take an action against an employee in violation of paragraph (8), (9), or (14) of 5 USC 2302(b), Prohibited personnel practices. 5 CFR 752, Subpart A, contains the procedures for these actions against supervisors. The definition of supervisor is located in 5 USC 7103.

The mandatory penalties apply to Executives (SES and Administratively Determined), Senior Managers (IR-01), and Frontline Managers (IR-03).

For the first prohibited personnel action the supervisor commits, the IRS will propose a suspension for a period that is not less than three days; and may propose an additional action, as determined appropriate, including a reduction in grade/band or pay.

For the second prohibited personnel action the supervisor commits, the IRS will propose removal.

Refer to 5 CFR 752.103, procedures.

Per the GPPA and Public Law 116-283 (for adverse actions under 5 CFR 752), if an employee, as defined in 5 USC 7501:

As stated in IRM 10.5.1.2.3, Personally Identifiable Information (PII), PII refers to information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information that is linked or linkable to a specific individual.

PII may include, for example, social security numbers, birth dates, addresses, or telephone numbers.

Refer to IRM 10.5.4.3.1, Timely Reporting: Immediately Upon Discovery, for actions required in response to IRS data breaches, such as PII and tax information.

For the definition of a tax return, refer to 26 USC 6103(b)(1).

For the definition of return information, refer to 26 USC 6103(b)(2).

Upon written request, tax returns and/or return information may be disclosed for use in a personnel matter as described in paragraph (4) below (refer to 26 USC 6103(I)(4)(A)(i)). If a tax return and/or return information is cited as an example in a corrective action, the confidentiality of the taxpayer’s information must be safeguarded (for example, cited in an attachment or taxpayer key). For more information, refer to IRM 10.5.6.8, Personnel Records, and IRM 11.3.29.8, Disclosure of Returns and Return Information for use in Personnel or Claimant Representative Matters - IRC 6103(l)(4). Refer to Exhibit 6.752.1-1, Sample Request for Material Relied On (Evidence) and Representative’s Access to Tax Information (if applicable).

Upon written request, returns and/or return information may be disclosed to an employee, former employee, or an approved representative (refer to 26 USC 6103(I)(4)). Refer to Exhibit 6.752.1-1, Sample Request for Material Relied On (Evidence) and Representative’s Access to Tax Information (if applicable). Refer to IRM 6.752.1.17, Employee’s Right to Representation, for information on designating a representative.

Form 5466-B, Multiple Records of Disclosure, must be completed when disclosing tax returns or return information (refer to 26 USC 6103(p)(3)(A)) and IRM 11.3.37, Record keeping and Accounting for Disclosures.

The admonishment or reprimand letter includes grievance details including the time limits to file. The employee and/or representative may choose to grieve or file an EEO complaint.

If any employee believes the action taken, in whole or in part, violated 29 CFR 1614, the allegation may be brought to the attention of an EEO counselor. Refer to EEO Guidance Policy and Manager Responsibilities for additional guidance.

After management issues an admonishment, the employee and/or representative may choose to discuss the possibility of an informal resolution, which can be done before a grievance or an appeal is filed, or arbitration is invoked. The time limit to file a grievance, an appeal, or invoke arbitration is not extended while informal discussions occur.

Management must contact their assigned ER specialist to discuss mitigating (reducing) a disciplinary/adverse action if it is not related to a Section 1203 violation. Only the Commissioner of Internal Revenue has the authority to mitigate Section 1203 violations or other statutorily mandated penalty. Management may mitigate the original penalty if the mitigated penalty:

After an appeal is filed or arbitration is invoked, third-party settlements are worked in collaboration with ER, management, Area Counsel, and GLS. Management must contact their assigned ER specialist for guidance.

Any settlement or Last Chance agreement is drafted by a ER specialist and reviewed by the appropriate Area Counsel, GLS, prior to obtaining signatures.

A Clean 50 or Clean Record settlement (agreement) is not authorized after a 752 proposal/decision letter is issued.

Abandonment of position occurs when an employee fails to report for duty, return from approved scheduled leave, or return from a seasonal furlough and do not submit a resignation.

If an employee fails to return to duty after a reasonable period (for example, 10 calendar days), management should ask the employee if he/she plan to continue their employment or if he/she are resigning. If the employee does not return to duty or resign; or cannot be reached by telephone or letter, management can separate the employee from federal service without taking an adverse action.

If management becomes aware that an employee wants to return to work, they must not separate the employee based on abandonment of position.

The corrective action process ceases upon receipt of an employee’s proof of death, which may include an SF-50, Notification of Personnel Action.

Types of moratoriums:

What Occurs During a Moratorium - a moratorium does not prohibit all actions. Management may continue with certain actions if appropriate.

Management may unilaterally correct mistakes made when taking a corrective action.

If management determines an action was taken erroneously, they may correct the error, even if an appeal, complaint, or grievance has been filed about the matter.

Management must ensure they remove only the information they determine to be inaccurate or to reflect an action taken illegally or in error.

Management may unilaterally act on a finding of discrimination or implement an EEO, MSPB, arbitrator, or other third-party order.

Management and their assigned ER specialist must coordinate these actions with Area Counsel, GLS, the Office of Civil Rights and Compliance.

Copies of the Advance Notice, material relied on, any oral/written replies, any supporting material, and the decision are maintained by ER in a case file. Refer to 5 USC 7503, Cause and procedure.

ER retains case files for six years in compliance with Document 12829, The General Records Schedules (GRS; refer to 2.3, Employee Relations Records).

In compliance with the GRS, 2.2, Employee Management Records, management annually reviews Drop Files and destroys superseded documents. Drop Files are kept for one year after an employee separates or transfers to another agency. After the one-year retention period, the file is destroyed.

The SF-50 for adverse actions taken under 5 CFR 752 is a permanent record filed in the employee’s OPF.

For SES employees, refer to: