Ask FELTG: Are Douglas Factors now a requirement for all disciplinary actions as opposed to just adverse actions?

May 26, 2020

There’s often confusion around the terms “discipline” and “adverse actions,” because some agencies define those terms differently.

Under the law there are actually two categories of adverse actions — appealable and non-appealable adverse actions. 5 USC § 7103 defines short suspensions (14 days or fewer) as adverse actions, and 5 USC § 7511 defines longer suspensions, demotions and removals as adverse actions. Only those actions in 5 USC § 7511 are appealable to MSPB, so some agencies don’t refer to short suspensions as adverse actions but rather refer to them as discipline. I’m guessing that’s the case with your question.

Douglas is required in appealable adverse actions, but not in non-appealable adverse actions, though the agency still needs to be prepared to justify its penalty to a third party and give some justification for a short suspension. FELTG teaches that Douglas is a best practice to use even for a short suspension because it helps the agency meet the legal requirement to justify its penalty.

To understand more how the Douglas Factors impact the reasonableness of an agency’s penalty, join us for Taking Defensible Disciplinary Actions. But hurry as the event, held over three afternoons, begins next Monday (June 1). For an even deeper dive into discipline and accountability, register for Developing and Defending Discipline: Holding Federal Employees Accountable June 23-25.

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 Answers Your Questions About COVID-19

April 28, 2020

Over the past few weeks, FELTG has received numerous questions about COVID-19, both via email and during our webinars and virtual training events. Here are three of the more common questions, along with answers and guidance, courtesy of the EEOC’s updated guidance on the novel coronavirus.

Why are people talking about the Americans with Disabilities Act related to COVID-19 when COVID-19 is not a disability?

The ADA is relevant to the COVID-19 pandemic in at least three major ways:

  1. It regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities.
  2. It prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation).
  3. It requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

May an agency take an employee’s temperature before permitting the employee to enter the agency facility?

Generally, measuring an employee’s body temperature is a medical exam, and agencies are only allowed to administer medical exams in very narrow circumstances. However, because COVID-19 is a global pandemic, and the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, agencies may measure employees’ body temperatures before allowing them into the workplace.

Keep in mind, not everyone who has the virus will have a fever, so agencies are also permitted to ask employees if they are experiencing other symptoms related to COVID-19, such as shortness of breath, body aches, and loss of smell.

If an employee was diagnosed with COVID-19 or was exposed to COVID-19, may the agency require medical clearance before allowing the employee to re-enter the workplace?

Yes, this requirement for medical clearance is permitted under the Americans with Disabilities Act either because the clearance to return to work is not disability-related or, if the pandemic were truly severe, the request would be justified under the ADA standards for disability-related inquiries of employees. EEOC reminds us, though, that doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide official medical certification, so new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have COVID-19.

For more on these topics plus discussions of emerging workplace issues related to the novel coronavirus, join FELTG on Wednesday, May 13, for the virtual training session EEO Challenges in a COVID-19 World.

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: Should an agency remove a hypothetical employee for current misconduct when he’s separately being investigated for a security clearance issue, a matter in which the agency is considering an indefinite suspension? Or should the agency wait until the security clearance issue has been resolved? The misconduct is unrelated to the security clearance.

March 24, 2020

Let’s add a little more context to this hypothetical scenario. The agency requires employees to maintain a security clearance as a mandatory condition of employment. When someone’s security clearance is suspended pending review, the agency usually indefinitely suspends the employee.

Here, while the employee’s security clearance is being reviewed but before the employee is indefinitely suspended, the employee’s supervisor informs the agency that she’d like to remove the employee for conduct that is unrelated to the issue with the security clearance.

The agency wants to know: Do we move forward with the indefinite suspension? Do we remove the employee? Do we attempt to do both?

Here’s what FELTG thinks would be the most efficient approach. Propose removal for the misconduct and put the employee on Notice Leave. Once the decision to remove is issued and becomes effective, the security matter becomes moot. If the decision is not to remove, the agency could suspend the employee and then propose an indefinite suspension for the security clearance revocation. There’s no legal mistake in doing both at the same time, it’s just not efficient.

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: What do you think about the recent precedential Federal Circuit case Sánchez v. VA, No. 2018-2171 (Feb. 10, 2020) and its establishing that settlement agreements don’t last forever?

February 25, 2020

Believe it or not, while this case might be designated as precedential, it’s actually not a precedent-setting position on the topic. The majority holding actually tracks old MSPB case law, and, we would offer, common sense. (And also, an old edition of Farnsworth.) Contracts are to be interpreted reasonably.

The dissent in Sánchez takes the position that the agency was committing itself to never reassigning the employee when it entered into a settlement agreement. That would be a significant limitation on an agency’s ability to use its workforce as needs demand, perhaps to the point of keeping open a clinic just for one guy who was assigned there via a 20-year old settlement agreement. If the parties intended something as serious as a promise to abide by the terms in perpetuity, then reason would say that they would have included that important provision in the settlement agreement. They did not. Therefore, nothing special to see here.

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: How would one best charge misconduct involving a subordinate’s attempt to undermine a superior by making false allegations?

January 28, 2020

Our customer provided more details, including a hypothetical situation in which a subordinate claimed that his male supervisor was “hitting on” female customers.

The problem the supervisor would have in this situation is that he might be dealing with whistleblowing. A whistleblower is an employee who makes a disclosure of managerial misconduct that falls into one of four very specific categories. One of the categories is a supervisor’s “abuse of authority.” An abuse of authority is an arbitrary or capricious exercise of power by a federal official that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons. D’Elia v. Treasury, 60 MSPR 226 (1993). There is no de minimis standard or threshold applied to disclosures of abuses of authority.Wheeler v. DVA, 88 MSPR 236 (2001), Ramos v. Treasury, 72 MSPR 235 (1996).

Here are some examples from MSPB case law:

·     Disqualification of candidates for failing to submit college transcripts when not required

·     Playing games on a government computer

·     Falsifying time sheets

·     False statements to an IG investigator

·     Preferential treatment of a co-worker based on an intimate relationship

·     Promotion based on non-merit factors

·     Belittling and swearing at subordinates

Someone who reports to upper management that a supervisor is hitting on a customer has most likely disclosed an abuse of authority within the definition of whistleblowing. We cannot discipline an employee for whistleblowing.

Let’s say the report of the hitting on the customer is false. If that is so, then you can discipline the employee based on a charge of ”Making False Statements.” Employees who lie when making disclosures are NOT whistleblowers. However, be careful. Even if the employee is wrong about the incident, he is still a protected whistleblower if he had a good faith belief in the truth of what he reported. The good-faith test is this: Could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidences an abuse of authority?  See LaChance v. White, 174 F.3d 1378 (Fed. Cir. 1999).

We certainly discipline whistleblowers all the time. We just have to be extremely careful not to discipline them for blowing the whistle.

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 require an employee who has just returned from maternity leave to use a dedicated lactation room when her preference is to pump at her desk?

November 19, 2019

Before we answer the specific question, let’s delve into the more specific details of this hypothetical situation that came in to FELTG.

The agency’s dedicated lactation room fits all of OPM and EEOC’s guidance, and the agency has several back-up rooms to boot. However, the employee doesn’t want to use those rooms. She needs to pump frequently to keep up her supply. Each pumping session can take 30 minutes to an hour. Because pumping time is an unpaid break, she says it would be a hardship for her to take so much time away from her desk and have to make up that time later in the day.

The employee works in a private office, but it does not have a door. She wears nursing covers and takes other measures to ensure her pumping is done in private. However, coworkers have complained and the manager wants to direct her to use the lactation room for pumping and either take her laptop with her when she goes there or continue using breaks and making up the time later.

As far as the relevant information here, this hypothetical employee does not have a disability and therefore is not entitled to disability accommodation under Title VII.

Now on to the FELTG response.

The Pregnancy Discrimination Act has been interpreted by EEOC to give female employees the same freedom for lactation-related needs that employees have for other similarly limiting medical conditions. [Don’t miss Meghan Droste’s webinar Pregnancy in the Federal Workplace: Discrimination, Harassment, and Accommodation, which will be held on Thursday.]

There’s a Fifth Circuit decision (that is not binding on the federal government) that says the Pregnancy Discrimination Act amended Title VII to provide that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions . . . .”  The court held that lactation is a “related medical condition” of pregnancy. See  EEOC v. Houston Funding II, Ltd., No. 12-20220 (5th Cir. May 30, 2013).

Indeed, there is a body of case law about sex discrimination of pregnant/postpartum women, but that generally involves intentional discrimination cases (fired for taking time off for “maternity leave”, hostile environment based on comments about breastfeeding mothers, etc.). However, this doesn’t seem to be the issue in this hypothetical situation.

This is a general control-of-the-workplace situation, and management has the right to control the workplace.

If we were on staff we’d advise the agency to look into why the coworkers are complaining. Is it the noise? If so, they should consider how others in non-pumping situations would be treated. If an employee is playing music too loudly, of course, they can be instructed to turn it down or turn it off. If the pump is too loud, the employee could be given the same kind of instruction. If the noise can’t be reduced, is there a way to muffle it, perhaps by putting a door on the office, or using a white noise machine?

If not, and there is a valid reason for doing so, the employee can be given a direct order: “You can’t pump at your desk.” Management can direct the employee not to pump at her desk, but it can’t say: “You have to use the pumping room.” The law does not require lactating mothers to use a pumping room but rather requires employers to have a suitable private space (not a bathroom) for pumping available. That’s an important distinction.

Leave it up to the employee to select a suitable alternative: use the pump room, don’t pump, quit, take more time off, or something else. As we teach at FELTG, management should always have a bona fide reason for anything you do that involves an employee. Coworker complaints can be a valid bona fide reason.

Control the work space, not the pumping.

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: In light of Van Wersh/ McCormick, do you have any suggested language for a waiver of appeal rights in exchange for a new appointment?

,

September 24, 2019

Challenges to waiver language have not come up enough in caselaw since Van Wersh for us to have definitively worded notice language. However, the basic principle of waiver is that notice must be clear for any subsequent claim of waiver to be knowing. Many agencies provide a general statement in their offer letter.

Some may state something to the effect of:

“I understand I am required to serve a new probationary period in accordance with 5 CFR 315. My rights and entitlements for adverse and disciplinary actions will be processed in accordance with the provisions of the CFR, part 315.”

Here’s what’s going to happen when we try to get anyone who has signed the language above to testify that they knew what was happening:

Attorney: Did you see the reference to 5 CFR 315 when you signed the notice?

Appellant: Yes.

Attorney: What did you think it meant?

Appellant: Well, I thought it was referring to the Council of Foreign Relations in upstate New York, area code 315

Let’s start with a blank page. We prefer explicit language to clarify what is happening. Also, we take the approach that the employee is not waiving anything, but instead understands that he will have only probationary appeal rights in the new position. In other words, he’s not actually giving up any rights; he just won’t have any rights to begin with.

Here’s a statement you could use:

“I understand that for my first year of employment in this position, I will be serving in a probationary period, even though I have had prior federal service. As a probationer, I will have limited appeal rights and procedures available to me (Title 5 Code of Federal Regulations) rather than the more extensive rights of a career employee (Title 5 Code of Federal Regulations Part 752). I have had the opportunity to ask questions of a human resources specialist regarding service in a probationary period.”

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 uses Notice Leave in conjunction with removals? We were advised that we needed special approval and that we could only place an employee on this leave in very rare cases.

September 4, 2019

We simply don’t understand why people would not use this gift of Notice Leave that Congress gave you for these exact situations. Notice Leave only applies during the Notice period. Why would Congress create it if they didn’t want you to use it?

A number of agencies use Notice Leave, so the person who told you it is for limited cases is completely wrong. The Administrative Leave Act of 2016 went into effect December 23, 2016, and starting that day, Notice Leave became an option. We know from talking with people in our classes that components of DOD, HHS, and DOI use Notice Leave regularly, as well as other agencies too. According to the law, there is no special permission required to use Notice Leave; the agency simply has to show that retaining the employee at work jeopardizes a legitimate government interest and the employee is not someone who the agency thinks would be suited for a reassignment position. Retaining anyone in the workplace after a proposed removal jeopardizes a legitimate government interest. Why in the world would an agency say: “You’re fired … but you get to keep coming in for 30 days?”

These are the kinds of situations where you may need to push back a little and ask: “Where does it say that I can’t use Notice Leave?”

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 there any reasons why a Deciding Official should deny an employee’s request to extend the opportunity to respond to a proposal for an adverse action?

August 20, 2019

Let’s look at it from another angle: The only time a Deciding Official is required to extend a response period is if a union contract says the employee is entitled to such an extension. Employees often try to get more time to prepare a response, and absent a contractual obligation, the agency is free to deny such a request, as long as the agency complies with the legal minimums (24 hours for a short suspension; 7 days for a long suspension, demotion or removal) or the agency’s policy requirement, if it differs from these timeframes.

In addition, if the response period is extended past the 30-day notice period, the agency is in violation of Executive Order 13939, which directs agencies to not extend the notice period past 30 days. Most federal employees wouldn’t want the President to find out you were violating one of his Executive Orders.

Bottom line: You can allow the employee a few more days to respond if you so choose, but absent the circumstances above, there is no legal requirement to do so.

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 a union official make disparaging remarks about a non-federal employee (contractor) working with agency managers? Is the union official protected under the “robust debate” umbrella?

July 24, 2019
Abusive or insulting language made by union officials may constitute robust debate in the following categories:
  • Negotiations
  • Newsletter
  • Representational meetings
  • Bulletin boards
FELTG has not seen a case that involved robust debate toward a contractor (that doesn’t mean there isn’t one), though our guess would be if that person was working on the management side then the same principle would apply: As long as the union rep is wearing his union hat, he can say a lot of things that would otherwise be unacceptable in the workplace.
There are outside limits to robust debate (racist, sexist, or threatening language/actions) but it has to be pretty bad to not be protected.

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.