What does pending adverse action mean?

Pending adverse action refers to when an employer proposes taking disciplinary action against an employee, but has not yet finalized or implemented the action. It is a preliminary step in the disciplinary process that is intended to give the employee an opportunity to respond before any final decision is made.

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When does pending adverse action occur?

There are several common situations when pending adverse action may occur:

An employee is notified that they are being suspended without pay for a certain period of time (e.g. 3 days). The suspension has been proposed but not yet implemented.
An employee receives a letter of reprimand outlining misconduct or poor performance. The reprimand proposes a disciplinary action but does not finalize it yet.
An employee is informed that the employer is proposing their termination, but termination has not yet taken effect.

An employee is notified that the employer is considering demoting them or reducing their pay. A final decision has not been made yet.

In each of these situations the employer has proposed an adverse action against the employee, but is still in the preliminary stages of the disciplinary process. The action is considered “pending” until the employer makes a final decision and implements it.

What types of disciplinary actions prompt pending adverse action?

Some of the most common disciplinary actions that trigger pending adverse action are:

Suspension – Temporarily prohibiting the employee from working for a defined period of time, usually without pay.
Termination – Permanently dismissing the employee from their job.
Letter of reprimand – A letter expressing disapproval of misconduct or poor performance, which is placed in the employee’s personnel file.

Demotion – Reducing the employee’s rank or position in the organization.
Reduction in pay – Decreasing the employee’s wages or salary.

Other possible disciplinary actions could include probation, loss of benefits, or transfer to a different department or location.

Why are employees given pending adverse action notice?

There are several reasons why employers issue pending adverse action notices rather than immediately implementing discipline:

To comply with due process requirements and give the employee a chance to respond to the allegations against them.
To allow time for management to investigate the situation fully and determine appropriate discipline.

To provide the employee with an opportunity to improve their performance or correct misconduct before formal discipline is imposed.
To give the employee advance warning that adverse action could potentially occur if the situation is not resolved.

Providing pending adverse action notice is generally considered a fair employment practice, rather than disciplining employees without giving them a chance to contest the grounds for discipline.

What rights does an employee have during pending adverse action?

Some key rights employees have when given pending adverse action notice include:

The right to receive written notice explaining the proposed adverse action, including reasons for the discipline.
The right to contest the adverse action and present information defending their own position.

The right to have a representative (such as legal counsel) assist them in responding to the notice.
The right to negotiate a different disciplinary action or settlement agreement with the employer.
The right to file a complaint about unlawful discrimination or retaliation if applicable.

An employer should clearly explain these rights to the employee upon issuing pending adverse action notice.

What are the requirements for proper pending adverse action notice?

For pending adverse action notice to be proper and enforceable, it must meet the following requirements:

Be provided to the employee in writing.

State clearly the specific proposed disciplinary action (e.g. 3 day suspension without pay).
Give a detailed explanation for the grounds for discipline, such as policy violations.
Provide copies of any evidence or documents supporting the adverse action.

Inform the employee of their rights, including the right to respond.
State a deadline for the employee to respond, usually 5-10 days.
Be signed by the appropriate manager or human resources official.

If these requirements are not met, the pending adverse action may be considered improper or invalid.

What should an employee do when they receive pending adverse action notice?

When an employee is given pending adverse action notice, they should consider taking the following steps:

Carefully review the notice and any supporting documents.

Consider if they need representation or assistance in responding.
Write down a timeline of relevant events from their perspective.
Gather any evidence that supports their position.

Draft a written response before the deadline explaining their view.
Request any accommodations needed to respond (e.g. extension).
Participate in any investigative or disciplinary meetings to present their side.

Determine if discrimination or retaliation was a factor.
Negotiate a settlement agreement if applicable.

Taking these steps helps the employee exercise their rights during the pending adverse action period.

Can an employer change or override pending adverse action?

Yes, an employer can change or override pending adverse action based on new information or developments, including:

The employee provides convincing evidence the allegations are untrue or mistaken.
The investigation determines there are mitigating circumstances.

Upper management decides on lesser disciplinary action.
The employee brings up unlawful discrimination or retaliation.
The employee negotiates an agreement or settlement.

The employer simply decides to rescind the proposed adverse action.

Until a final written decision is provided and the discipline takes effect, the employer can adjust or reverse the pending adverse action as appropriate.

What happens after pending adverse action notice is given?

Common steps in the pending adverse action process include:

Employee response – The employee responds before the deadline, either in writing, in a meeting, or both.
Consideration of response – The employer evaluates the employee’s defense and any new information provided.
Further investigation – More investigation may be done to corroborate facts if needed.

Management review – Higher level managers often review disciplinary decisions.
Final notification – Final written notice is given on whether discipline will be imposed.
Implementation – If finalized, the adverse action takes effect as outlined.

Appeal option – The employee may have the option to appeal the final decision.

The length of this entire pending adverse action process can vary significantly depending on the complexity of the situation.

What happens if the final decision is to move forward with discipline?

If after pending adverse action the employer’s final decision is to proceed with the proposed disciplinary action, the following occurs:

The employee receives final written notice confirming discipline will be implemented.
Any suspended discipline takes effect on the dates outlined.
For termination, the employee is formally dismissed from employment.

Documentation goes into the employee’s personnel file.
The employee may have appeal rights depending on employer policy.
The employee may choose to file a wrongful termination claim.

Even with final discipline, employees often still have recourse through internal appeals, lawsuits, or Labor Department complaints.

What happens if the employer rescinds pending discipline?

If the employer decides not to proceed with the proposed discipline, the following generally occurs:

The employee receives written notice the pending adverse action will not be implemented.

Formal discipline is revoked, with no suspension, termination, or demotion taking effect.
The situation may remain in the employee’s file but is usually notated as rescinded.
Conditions like probation or performance milestones may be imposed.

No appeal or further action is needed from the employee.
Relations may remain tense depending on the circumstances.

Rescinding adverse action usually restores the employment status quo before discipline was proposed.

Can employees refuse to sign pending adverse action notices?

Employees often ask if they should refuse to sign pending adverse action notices. While employees may choose not to sign, it likely will not impact the process. Some key points on signing include:

The signature only acknowledges receipt, not agreement with the notice.
Refusing to sign will not make the adverse action go away or become invalid.

The employer can still implement discipline even if the employee does not sign.
The employee should submit a written rebuttal regardless of whether they sign.
A supervisor may need to witness and annotate if an employee refuses to sign.

While the employee is not required to sign, doing so simply documents the notice was received by them.

Can an employee resign instead during pending adverse action?

Employees do have the option to resign their employment while pending adverse action is taking place. Some key points include:

Resigning means the employee chooses to end their employment voluntarily.

The pending discipline would no longer apply since the employee resigned.
The employee may ask that limited documentation remains in their file.
Resigning relinquishes rights to contest and appeal discipline.

Unemployment benefits may still be sought if eligible.
The circumstances would remain relevant if the employee later re-applies.

Overall, resigning can avoid final discipline but also removes formal rights in the process.

What legal recourse do employees have for wrongful pending adverse action?

If employees believe pending adverse action is wrongful, retaliatory, or discriminatory, they may pursue legal recourse such as:

Filing a charge with the Equal Employment Opportunity Commission if discrimination is alleged.
Pursuing litigation for wrongful discipline or breach of contract.

Submitting a complaint to the state labor department for investigation.
Contacting a workers’ rights advocacy group for assistance.
Hiring an employment lawyer to negotiate a settlement or file a lawsuit.

It is usually advisable for employees to consult privately with an attorney to discuss their options.

Key Takeaways

The key takeaways about pending adverse action in the workplace include:

It refers to proposed discipline that is not yet finalized or implemented.

Employers use it to give employees notice and a chance to respond.
Common actions include suspension, termination, demotion, and pay cuts.
Employees have various rights including to contest the allegations.

Discipline can potentially be rescinded based on new information.
Adverse action becomes final if the employer ultimately moves forward with it.
Employees should consider their options and respond before the deadline.

Understanding the pending adverse action process and employee rights is important for effectively navigating workplace investigations and discipline.

Table Comparing Different Adverse Actions

Adverse Action	Definition	Common Reasons	Effects on Employee
Suspension	Temporary removal from job duties and prohibition from working for defined period	Serious misconduct, safety violation, pending investigation	Lost wages during suspension period, prohibition from premises
Termination	Permanent involuntary discharge from employment	Gross misconduct, poor performance, downsizing	Immediate loss of wages and all benefits
Letter of Reprimand	Formal letter of disapproval placed in personnel file	Policy violation, attendance issue, mistake	Documented warning, potential impact on promotion and pay
Demotion	Reduction to lower-level position and responsibilities	Downsizing, loss of skills, as discipline	Reduced status, pay, authority
Pay Reduction	Lowering employee’s wages or salary	Budget reasons, performance issue, as discipline	Decreased earnings each pay period

Conclusion

Pending adverse action represents the preliminary stage of workplace disciplinary processes, providing employees with notice and an opportunity to respond before final decisions are made. While receipt of pending adverse action notice can be stressful, employees have a number of fair process rights. Understanding company policies, documenting details, and requesting representation are key in navigating these complex situations effectively. With proper guidance, even proposed terminations, suspensions or demotions can sometimes be contested or mitigated. Overall, communication and proactive action are employees’ best allies when faced with potential discipline scenarios.