OPM and MSPB Propose Retiring the Douglas Factors ā€” What Federal Employees Stand to Lose
For 45 years, before a federal agency could fire, suspend, or demote an employee, it had to work through twelve factors set out in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) — the foundational Merit Systems Protection Board decision governing whether a disciplinary penalty is reasonable.
This week, OPM and the MSPB jointly issued an 81-page proposed rule that includes a section titled "Retiring the Douglas Factors." If finalized, it would replace that 45-year-old framework with a vaguer standard, and federal employees facing discipline should understand exactly what's being proposed — and how to weigh in before it's final.
What the Douglas Factors Do
The twelve Douglas factors require an agency to consider things like an employee's length of service and disciplinary record, whether the penalty is consistent with how the agency has treated other employees for similar conduct, whether the punishment fits the offense, and whether a lesser penalty would adequately address the problem. They force an agency to show its work before firing, suspending, or demoting someone, and they give employees and the Board a concrete standard to evaluate whether a penalty was reasonable.
What the Proposed Rule Would Change
The proposed rule would replace the twelve-factor framework with a "totality of the circumstances" test — a broader, case-by-case standard without a required list of factors an agency must weigh. In practical terms, that gives agencies more discretion in selecting a penalty and gives the Board less of a defined standard to hold agencies to when reviewing whether a penalty was reasonable.
The stated justification is that the Douglas factors are sometimes applied too mechanically. Notably, the Douglas decision itself already cautions against a rigid, checklist-style application of the factors.
The proposed rule is not limited to the Douglas factors. According to the proposal, it would also cap performance improvement plans at 30 days, eliminate pre-PIP procedures, remove progressive discipline requirements, narrow who counts as a comparator employee for consistency purposes, and restrict clean-record settlement agreements.
Where Things Stand
This is a proposed rule, not a final one. Proposed rules are generally subject to a public comment period before an agency can finalize them, and comments submitted during that window become part of the administrative record — both for the agency's consideration and for any later legal challenge if the rule is finalized. If you want to weigh in, comments on federal proposed rules are submitted through regulations.gov.
Practical Takeaway
If you are currently facing a proposed suspension, demotion, or removal, the Douglas factors still apply today — this rule is not in effect. Make sure any response to a proposed disciplinary action addresses the Douglas factors specifically, including your service record, comparator treatment, and whether a lesser penalty would suffice. If this rule is finalized, those protections may look different going forward, which makes it more important to build a strong record now.
If you're facing discipline, a PIP, or removal and want to understand how the Douglas factors apply to your situation, federal employee lawyers at Southworth PC can help you evaluate your options.
Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.