Labor & Employment Law Daily Wrap Up, MSPB NEWS—Board issues first precedential decision since March, (Dec 1, 2025)

By Brandi O. Brown, J.D.

In it, the two Board members consider an employee’s Fifth Amendment challenge to her removal for disciplinary reasons.

In an administrative appeal heard by Vice Chairman Henry J. Kerner and Member James J. Woodruff II of the Merit Systems Protection Board, the Board issued its first precedential decision since March 2025.

No warning. The appeal involves an IRS employee who was removed from her job as a result of events surrounding a virtual performance review meeting, in which the employer alleges a third party was present. The employee contends on appeal that the agency failed to provide her with a Kalkines warning, which is a procedural protection based on the Fifth Amendment that requires notification to an employee of her rights during a civil disciplinary inquiry regarding the potential consequences and possible criminal liability related to any failure to cooperate with such an inquiry.

The members found that the IRS employee “did not have a reasonable belief that the agency’s inquiry regarding the identity of a third party would implicate her Fifth Amendment rights, such that she would be entitled to a Kalkines warning.” As such, it found that the agency’s misconduct charge was properly brought.

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