Ask FELTG: How do you discipline an employee for a second act of misconduct that occurred before you’ve had the opportunity to discipline him/her/them for a first act of misconduct?

June 1, 2021

In the hypothetical situation, the agency started the disciplinary process for an employee’s failure to follow instructions (FFI). During this process, the employee went Absent Without Leave for three days. The agency already had started the process of proposing disciplining for FFI, so it proceeded to issue disciplinary action on that charge alone. A few weeks later, the agency issued a separate disciplinary action for AWOL.

Was this the right approach?

There are actually two approaches the agency could have taken. It could have cancelled the first discipline altogether and then re-proposed the discipline based on the two charges.

That said, the approach taken is fine. However, note that you cannot use the first instance of FFI as prior discipline for the second act of AWOL. MSPB’s reasoning is the employee must be given a chance to learn from prior discipline for it to be progressive. See Fowler v. USPS, 77 MSPR 8 (1997), and because the discipline was not issued before the employee was AWOL, it cannot be relied upon. All the more reason to discipline as soon as possible after an act of misconduct.

Speaking of progressive discipline, join FELTG President Deborah Hopkins for the 60-minute webinar Using Progressive Discipline in the Federal Workplace: Three Strikes and You’re Out? on June 10, starting at 1 pm ET.

Do you have a Federal employment law-related question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Symptoms and Vaccines: FELTG Answers Your COVID Questions

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We covered a lot of ground during FELTG’s four-day Emerging Issues in Federal Employment Law event last month. It was a week of engaging instruction, and the questions continued to pour in days after the event ended. Not surprisingly, a lot of the questions involved current and expected pandemic-related challenges.

If you’re still looking for answers, join Attorney at Law Katherine Atkinson for EEO Challenges: COVID-19 and a Return to Workplace Normalcy on June 2 from 1:00-4:30 pm ET.

Here are a couple of questions that came in following the Emerging Issues event.

Let’s assume that there is a point where the pandemic is no longer considered a direct threat and we do not require vaccination for employees to return to work. What if an employee who refuses to be vaccinated uses the lack of vaccination as an objection to returning to the workplace? Can you take the employee off telework and require him to return to the workplace even if he is not vaccinated?

This question popped up after FELTG Instructor Katie Atkinson’s session COVID-19 and EEO: What We’ve Learned and What We Still Need to Know. Katie replied that an employee’s “objection” to returning to the workplace is irrelevant unless that person is requesting a reasonable accommodation.

Let’s look into the near future and envision a time when the world is back to pre-pandemic parameters for telework. At this point, an employee’s refusal to return to work is simply a failure to follow a direct order or an AWOL charge.

Be careful, though: If the “objection” is framed as a request for reasonable accommodation, then you need to process it as a reasonable accommodation request. Here’s an example: “I have a medical condition that necessitates telework.”

You need to determine: is the employee a qualified individual with a disability? Does he have a medical condition that substantially limits a major life activity? Can he perform the essential functions of the job while teleworking? Are there other accommodations available? Would full-time telework impose an undue hardship?

To your question about vaccinations, the employer can require the employee to return to work regardless of whether the employee is vaccinated. If the employer does not require a vaccination, then whether to get vaccinated is the employee’s choice. If this is not a reasonable accommodation situation, then it’s entirely the employer’s choice whether they want to require the employee to work in person.

An employee reports to work with symptoms of COVID. I want to send him home, but he doesn’t want to be sent home because he doesn’t have any sick leave. What leave options are there for this?

This may sound complicated, but it’s really not. As Senior Instructor Barbara Haga explained in her session Leave for the Federal Employee in 2021, there are new leave provisions that cover just this circumstance. As long as the employee is actively seeking a diagnosis as soon as possible, he would be covered. [Editor’s note: Speaking of leave, join Barbara for the 60-minute webinar Implementing the Employee Paid Provisions of the American Rescue Plan on May 26.]

Do you have a COVID-related question that needs an answer? Or another Federal employment law-related question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.

Ask FELTG: Does Executive Order 14003 require the parties to renegotiate the provisions imposed by the FSIP that related to Trump EO issues on union official time and union use of office space?

April 12, 2021

In the hypothetical situation posed by the questioner, the agency has been negotiating a new term CBA with the union since 2018. The parties went to the Federal Service Impasses Panel to break an impasse over the ground rules and negotiated term provisions. They received a Decision & Order imposing provisions on the term provisions last August. The CBA subsequently failed ratification and, per the parties’ ground rules, the agency engaged in continued negotiations.

The parties reached impasse again in December 2020. They are now at the point where either party may request FSIP assistance once again on the renegotiated provisions at impasse.

The union posits that the EO requires the parties to “throw out all provisions negotiated” over the last 2½ years and start the whole process over. The agency takes a more narrow view.

Practically speaking, it’s probably not in the best interest of the taxpayer to “throw out all provisions negotiated” in the past few years and start over. The parties should carefully review and possibly revise those provisions, because the EO does indicate that’s a requirement.

It would make sense for the union and management to do an honest assessment of whether those provisions negotiated pursuant to the Trump Executive Orders are hindering union representation of bargaining unit members and whether any particular changes to those provisions would harm performance of the agency’s mission.

As far as union use of space is concerned, the rescinding of EO 13837 does indicate that agencies cannot charge unions for use of agency space. It will be up to the parties to negotiate an appropriate use of space, as was probably done at your agency before EO 13837 existed.

This is a pretty dynamic time in federal labor relations. Get the latest and most in-depth guidance on all things LR by joining us for FLRA Law Week May 10-14. Ann Boehm, who defended the FLRA before the U.S. Court of Appeals and the Supreme Court in the Weingarten case, and Joe Schimansky, former Executive Director of FSIP, will give you a solid foundation in LR and bring you up to speed on where the current law stands.

Do you have another question about Executive Order 14003? Or another federal employment law-related question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles EO 14003 and Clean Record Settlements/Official Time

February 16, 2021

After last week’s FELTG webinar on President Biden’s Executive Order on Protecting the Federal Workplace, one thing is clear: You have a lot of questions. If you missed the webinar, you are in luck: FELTG will present an encore presentation of Changing Course: Understanding the Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on February 25 from 2:30-4 pm ET.

Meanwhile, presenters Ann Boehm and FELTG President Deborah Hopkins address two of those questions in this week’s Ask FELTG.

As a result of Executive Order 14003, where do things stand on Clean Record Settlement Agreements?

EO 13839 was the first place we saw a ban on clean record agreements, and OPM incorporated that language into their updated regulations, which went into effect in November 2020. By revoking EO 13839, EO 14003 tells agencies that you can do clean record settlements again (though you don’t have to). There’s language in the EO that seems to indicate OPM will need to consider amending their regs to be consistent with 14003.

As a result of Executive Order 14003, should agencies go back to the term Official Time?

EO 13837 changed the term “Official Time” to “Taxpayer Funded Union Time,” and many agencies made the change as well. Now that EO 13837 has been revoked by EO 14003, it is probably a good idea – and shows good faith to the unions – to go back to the term that is in the Federal Service Labor-Management Relations Statute (Statute) at 5 U.S.C. § 7131 – “Official Time.”

Do you have another question about Executive Order 14003? Or another federal employment law-related question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide.

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By Deborah Hopkins, January 11, 2021

Unless you were living under a rock on a deserted island without Wi-Fi for the last week, you saw the horrifying sight of a mob of American citizens, in protest of the results of the Presidential election, rioting at the United States Capitol.

Dozens, if not hundreds, of individuals engaged in violence against law enforcement officers, broke into one of our country’s most sacred buildings, destroyed government and personal property, smoked marijuana, defaced statues, stole government property, and drove our elected Members of Congress and their staffs – dedicated federal employees – to evacuate the building in fear for their safety. At least 5 deaths have been reported.

So, what would, could, or should happen if one of the rioters turned out to be a federal employee? We know that private sector companies have issued terminations. Can a federal agency fire such an employee?

When asking and answering this age-old question, it’s important to remember the discipline framework, regardless of the nature of the conduct. Following the framework will bring you to the right answer every time. At FELTG, we call this framework the Five Elements of Discipline.

I’m not going to fill in the answers for you; instead I am intentionally leaving space so that you can do the work and come to your own conclusion, with the guidance of some helpful hints in italics and a few Notes that might be of interest.

Element 1. Did the employee violate a rule?

Hint: Rules can come from a variety of places — statute, regulation, policy, should-have-known, agency SOP, code of conduct, supervisor’s unique rule, common sense, etc.

What rule(s) did the employee violate?

 

 

Note on nexus. Keep in mind if the misconduct occurs off-duty, there must be a nexus between the misconduct and the efficiency of the service. Assaulting a Federal police officer or destroying Federal property, and other things of that nature, show a link between the misconduct and the efficiency of the service.

Element 2. Does the employee know the rule exists?

Hint: An agency can’t enforce secret rules, so it has to show the employee knew, or should have known, there was a rule prohibiting such conduct.

What notice does this employee have, based on the rule(s) identified in Element 1?

 

 

Element 3. What evidence do you have that the employee broke the rule?

Hint: News footage, social media posts, emails sent on a government computer, courtroom testimony, and more have all been used as evidence in administrative cases.

What evidence would you use – and is it evidence at the preponderant level?

 

 

 

Element 4. Is removal an appropriate penalty?

Hint: Use the Douglas factors to get to the outcome. If you need a reminder, a Douglas Factors Worksheet can be found here: https://feltg-stage-ada.stage3.estlandhosting.com/douglas-factors-worksheet/.

 

 

Note: In egregious cases such as these, you’ll want to hit hard the Douglas factor of the harm or potential for harm, but don’t ignore other factors such as job level, the cost of the damage, your trust and confidence in the employee, the potential for rehabilitation, and the employee’s past misconduct, especially if it involves violence, insubordination, or similar.

Element 5. Will you provide due process?

Hint: As tempting as it might be to tell someone who assaulted a Capitol Police Officer with a lead pipe “You’re fired, effective immediately,” you’ll want to be sure to follow the due process requirements that most career employees enjoy. That’s right, this citizen who has attempted to overturn the Constitution, is still entitled to his own Constitutional employment protections.

List the three-step due process requirement you’ll provide.

 

1.

2.

3.

(If you don’t know the process, then check out this article for a reminder: https://feltg-stage-ada.stage3.estlandhosting.com/due-process-challenges-in-a-covid-19-world/)

Additional Considerations

A- If the employee was supposed to be working at the time they were breaking into the Capitol, the agency can charge the employee AWOL. In fact, that might be a streamlined way of getting to the removal, without having to rely on anything involving the violent behavior.

If the employee was arrested and didn’t show up to work the next day because they were in jail, the agency can also charge AWOL for that time. An employee’s annual leave request does NOT have to be approved because they are in jail.

OPM says annual leave requests may be denied if the agency’s denial is reasonable. You tell me: Is it reasonable to deny annual leave to someone who tried to overthrow Congress, assaulted federal LEOs, and destroyed government property in the process?

B – The agency can (and should) put the employee on Administrative Leave during the notice period, so they don’t come after you with a lead pipe because you’ve proposed their removal. Once regulations are issued on 5 U.S.C. 6329b the agency can use Notice Leave instead.

C – There are obviously criminal implications here. Because a removal is an administrative procedure, the agency does NOT need to wait for criminal charges to be brought, let alone a criminal conviction. Charge the underlying misconduct (for example, conduct unbecoming a Federal employee) and prove it by a preponderance of the evidence, and this employee could be off the payroll before investigators or police have paid him a single visit.

D – If you want to take the employee off the payroll even faster, you can invoke the Crime Provision under 5 U.S.C. 7513(b)(1).

We talk about all these things in upcoming training classes including UnCivil Servant: Holding Employees Accountable for Performance and Conduct (February 10-11) and MSPB Law Week (March 29-April 2). I hope you’ll join us. And please – stay safe out there. Hopkins@FELTG.com

Ask FELTG: Do managers need to tell employees how to pass each standard and critical element during the performance improvement period?

December 7, 2020

Q: Do managers need to tell employees how to pass each standard and critical element during the performance improvement period?

A: The performance plan is what tells the employee the expectations for each critical element. During the performance demonstration period, the supervisor must tell the employee the specific requirements for what’s an acceptable level of performance on only the critical element(s) for which the employee is on the DP/PIP. Sometimes that means the supervisor has to provide additional guidance about how the employee can achieve the standard: specific assignments, fleshing out vague terms, providing clarity on expectations, etc.

Keep in mind that the higher-level the position, the more the employee is expected to work independently and to know what is expected from the position. For example, a lower-graded clerk may need to be told exactly what format to use when drafting memos whereas a more senior professional should already know this or know how to find it out. Supervisors are not required to provide detailed expectations to employees in the more senior positions, particularly those classified as professional positions. They can, of course, but doing so is not a legal requirement.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Are holidays counted as hours for Paid Parental Leave?

October 20, 2020

This question came to Ask FELTG with the following hypothetical example:

The expected due date for a baby is December 26, 2021 and the employee is hoping to take Paid Parental Leave from December 11, 2021 through sometime in March 2022. During this period, we have four holidays: Christmas, New Year’s Day, Martin Luther King, Jr. Day, and President’s Day. Does the PPL cover those four holidays or will the employee get an extra 4 days off on top of the 12-week PPL?

Holidays are not counted in the hours of PPL because PPL is first Family and Medical Leave Act (FMLA). PPL is just another bucket of hours to draw from to get paid for FMLA time, so the basic FMLA rules still apply. Here is the reference:

Neither any holidays authorized under 5 USC 6103 or by Executive order or any non- workdays established by Federal statute, Executive Order, or administrative order that occur during the period that the employee is on FMLA leave count toward the twelve-week entitlement. 5 CFR 630.1203(e).

So in the example above, there are extra days off because of the holidays. However, the scenario has one major error. An employee cannot use PPL prior to the birthdate. It applies upon birth or placement, not before.

For more guidance on this new leave entitlement, join FELTG for (any or all of) the virtual training program Absence, Leave Abuse & Medical Issues Week, April 12-16, 2021.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Is it permissible for an agency to tell a complainant that her coworker will be suspended? Is this disclosure a violation of the coworker’s privacy?

September 21, 2020

This question came in as a response to FELTG President Deborah Hopkins’ recent article Can Delaying Discipline Cause EEO Liability for an Agency? in our August newsletter.

And here’s the answer:

When it comes to federal employee discipline, unless classified/secret information is involved, there is no law that says an agency has to keep employee discipline confidential, if information about the discipline is shared from personal knowledge of the parties involved.

There is case law on the matter: By becoming public officials, the privacy interests of government employees are reduced. Lesar v. DoJ, 636 F.2d 472 (D.C. Cir. 1980). A government employee’s privacy interests may be diminished to the extent it might disclose “official misconduct.” Lissner v. Customs, 241 F.3d 1220 (9th Cir. 2001).

This is different than the Privacy Act, which among other things prohibits people who have access to confidential personnel documents from sharing information with people who have no right to that information. Also, keep in mind that the details of EEO matters need to remain private.

In Eotvos (pro se) v. Army, CH-0752-17-0355-I-1 (2018)(ID), the supervisor involved in the discipline knew from personal knowledge that the employee was being suspended for inappropriate conduct. So, there was no violation of the Privacy Act or any confidential EEO information. In fact, sometimes it behooves agency officials to share discipline information, because it lets employees know that something is being done about misconduct in the government. There may be times it’s best not to share the details, of course, but there may be times it makes sense to do so.

Always keep in mind your agency policy might contain guidance on this topic, or your supervisor might have an opinion on the matter, so it’s best to check those things before you start talking.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Can an agency consider an employee’s criminal record or previous misconduct when assigning that person to a position?

August 25, 2020

Crime rates dropped suddenly at the beginning of the pandemic. However, several sources are reporting that those rates have started to soar again. Anecdotally, it certainly seems to be the case based on the letters that have come into the old Ask FELTG mailbox recently.

In the first hypothetical scenario provided by a FELTG reader and presented in our headline, the employee has been disciplined after pleading guilty to engaging in criminal conduct of a sexual nature. The employee was temporarily detailed to a non-supervisory position as management tried to determine where to reassign the individual. This is not an easy task, due to the nature of the employee’s criminal activity. Several agency employees, who are aware of the specifics of the criminal case, are concerned about working with this person.

If an employee has been disciplined for misconduct (reprimand, suspension, demotion, removal), he cannot be disciplined again for the same misconduct. If the agency now wishes to remove the employee because of the effect criminal activity had on the workplace, it has the option of canceling the previous discipline and re-issuing a proposal to remove based on the same conduct. As long as the agency makes the employee whole when it cancels the previous discipline, this is an option. Aggressive, but legal.

Because reassignment is not discipline, a reassignment is legal in a circumstance where an employee has already been disciplined. Put another way, an agency can consider an employee’s criminal conviction when deciding where to reassign that person.

Meanwhile, another FELTG reader asked: Is it in the best interest of the Agency to move forward with a Notice of Proposed Removal for an employee with pending criminal charges?

In this hypothetical situation, the reader was concerned about the Agency moving forward with a removal action only to see the criminal charges dropped. What would happen then? Could the employee file an appeal with MSPB to have the removal overturned, allowing him or her back to work?

An agency can absolutely discipline the employee for misconduct that may rise to a criminal level. However, you can avoid the disciplinary action from being overturned if the criminal conviction does not stand, by charging the underlying conduct (for example, striking a coworker) instead of the criminal charge (for example, assault and battery).

The MSPB may stay the hearing until the conclusion of the criminal proceedings (so the employee can focus on her defense), but as long as the agency has a preponderance of the evidence the misconduct occurred, its action is not bound by the result of the criminal trial, since it is a different forum and the standard there is evidence beyond a reasonable doubt. So theoretically the employee might be acquitted, or have the charges dropped, and then the agency could still proceed with the removal appeal.

MSPB addressed this a few years ago in a report, What is Due Process in Federal Civil Service Employment? MSPB, May 2015.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Who is permitted to be a Deciding Official when the agency is going through a reorganization?

July 21, 2020

This question came into the FELTG mailbag with this hypothetical situation:

A direct supervisor of an employee proposed discipline as the Proposing Official and that person’s second-line supervisor was deemed the Deciding Official. However, during the 30-day period between a Proposal and Decision, the appointed “Deciding Official” referenced in the Proposal notice for the employee to submit his reply was moved within the organization and was no longer the employee’s second-line supervisor. Basically, the supervisor, in this hypothetical, is still the employee’s direct supervisor, but everyone else above him has been altered. And the collective bargaining agreement does not address this situation.

What if the Deciding Official is a supervisor elsewhere in the organization? Or not a supervisor at all? Carrying that through to the Grievance, who would be the Grievance decider? The next person up in the old leadership structure or in the new structure?

And here’s the FELTG reply:

The good news for you is that the Deciding Official (DO) can be anyone in the agency who is a supervisor or manager, or even a management official, and does not have to be in the employee’s chain of command. 5 CFR § 752.404(c)(2) says that the DO must have “authority either to make or recommend a final decision on the proposed adverse action.” Nothing about chain of command exists in the law or regs.

The fact that the second-line supervisor has changed has no bearing on the legality of the decision. Some agencies routinely delegate a DO outside the chain of command, or designate a much higher level authority, such as a regional director, to be the DO.

The Department of Justice has a group of “all-time” DOs whose sole jobs are to make decisions on proposed adverse actions. And yes, in cases of misconduct, the PO can also be the DO as long as she can credibly say her mind was not made up until after the employee’s response.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.