Debra Roth of Shaw Bransford & Roth wrote the article, "Employees Under Investigation can be Comparators" for the August edition of Federal Times. Her article also appears on the Federal Times website under the "Ask the Lawyer" blog.
Read an excerpt of the article below:
The U.S. Court of Appeals for the Federal Circuit recently overturned an arbitrator’s decision sustaining the removal of a Social Security Administration employee for violating time and attendance policies. The court found that the arbitrator erred by imposing a “categorical rule of exclusion” against using similarly situated employees under investigation as comparators when arguing that a penalty is not reasonable. Although this case regards an arbitrator’s decision, the rule of law applies to nonbargaining unit disciplinary and adverse actions.
Through her union the employee sought arbitration of the removal action. Upon review of records and time reports of her work component during the relevant time period, the employee was able to show that her eight colleagues had committed the same or similar violations – that five had “more overall error minutes” – but had not received any proposed discipline.