How to Save the Merit Systems? Whitaker-ize!

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By William Wiley, December 18, 2018

Oh Lordy, we’re about to lose the civil service. Way back in 1883, Congress created a federal civil service based on merit instead of patronage. The protector of that merit-based civil service has evolved over time and today is recognized to be the US Merit Systems Protection Board. The Board itself is composed of three Presidentially appointed, Senate-confirmed individuals who review, among things, the firings of most all federal employees. That review is impartial and designed to ensure that removals are based on merit, not some illegal, biased motivation. Since 1883, the government has had the back of its employees, promising that if you are a civil servant and you do your job, you will not be fired for arbitrary reasons.

That guarantee is now hanging by a thread.

We have had two vacancies and only one remaining Board member since January 2017. That means that the Board has not been able to issue any decisions since then for lack of a quorum. MSPB now has a backlog of 1500 appeals awaiting a decision when its working backlog should be about five. Each removal appeal involves an unfortunate human being whose life is dependent on the outcome of the appeal. Each of those appeals also involves the potential for the government to have to pay out back pay, attorney fees, and compensatory damages to successful appellants. That potential indebtedness increases daily for each work day that an appeal is not resolved.

As we’ve written about recently here at FELTG, on November 28, by the vote of a single Senator, the panel of nominees submitted by the White House to become the three new members of MSPB was rejected by the Senate. The result of that vote is that the backlog of appeals at the Board will continue to grow until the Board again has a quorum.

Separately, the term of the current Acting Chairman, the sole remaining Board member, expires on March 1. As of March 2, there will be no Board members at all. There is defensible legal argument circulating within the administration (we are told) that without any Board members, by law MSPB cannot exist as an agency. If that is the case, on March 2, MSPB would have to begin to furlough (or RIF?) all of its 240 employees: judges, psychologists, and attorneys. It is conceivable that after 135 years of merit systems protection, the federal civil service will have no protector at all.

Fortunately, here at FELTG, we’ve figured out a way to fix all of this. We call it Whitaker-ize.

As many of you know, on November 7, President Trump appointed James Whitaker to be the Acting United States Attorney General. That position, as are the Board member positions, is normally filled by an individual nominated by the President and confirmed by the Senate. However, the President acted to appoint Mr. Whitaker without Senate confirmation of his nomination. He did this by invoking the provisions of a somewhat recent law, the Federal Vacancies Reform Act of 1998, 5 U.S.C. § 3345 et seq. That law establishes the procedure for a filling a vacancy in an appointed officer of an executive agency during the time before a permanent replacement is appointed. It bypasses the requirement for Senate confirmation and can cause a vacancy to be filled immediately based solely on the action of the President.

The Act specifies three classes of people who may serve as acting officers:

  1. By default, “the first assistant to the office” becomes the acting officer.
  2. The President may direct a person currently serving in a different Senate-confirmed position to serve as acting officer.
  3. The President can select a senior “officer or employee” of the same executive agency who is equivalent to a GS-15 or above on the federal pay scale, if that employee served in that agency for at least 90 days during the year preceding the vacancy.

Well, if it’s good enough to fill the vacancy of US Attorney General, why would it not be good enough to fill one of the vacant Board member positions? Mr. President, why not Whitaker-ize us a temporary Board member?

Option 1, above, is not relevant at MSPB because no Board member has a “first assistant.” One could argue that the Chief Counsel to a member (the position I held previously) is effectively a “first assistant.” However, there’s no need to make that somewhat tenuous argument because options 2 and 3 are absolutely begging to be implemented:

  • Reassign the current occupant of a different Senate-confirmed position. The Federal Labor Relations Authority, a sister-agency to MSPB, has three Senate-confirmed appointees sitting on it. Two of them always vote together and agree on case decisions while the third member often dissents. The cases that come before FLRA are based on the same law that MSPB interprets, the Civil Service Reform Act of 1978. The Authority members are highly experienced and have deep knowledge of civil service law and how to vote on employment disputes. With the stroke of a pen, the President could reassign the third outlying Authority member to be a temporary Board member, thereby allowing cases on which the current Acting Chairman has already acted to be voted on and issued immediately. That new temporary member would be able to function until March 1 when the current Acting Chairman’s term expires. The backlog could be reduced significantly in that period of time and a possible March 2 shutdown of the agency would be avoided.
  • Appoint a senior “officer or employee” of MSPB who is equivalent to a GS-15 or above. The Board’s staff literally bristles with highly qualified individuals who satisfy this criterion. Every regional office has at least a couple of GS-15 level judges plus an SES chief judge who could vote maybe a million cases a day if given the opportunity. Board headquarters is replete with experienced, talented attorney team leaders and office heads who are GS-15 and above and who already know the code to the rest room door at Board headquarters.

Desperate times call for desperate measures. Our country needs a new Board member NOW (not two new Board members as that will just slow things down). We do not have time for the luxury of vetting and voting. Our career civil service, the very backbone of our government, is sinking. Politics, smolitics. If you know people at the White House, please suggest to them that they recommend one of the above options to the President. Then, with a tweet, he can resolve this impending doom. Act quickly, Mr. President, and the quorum-ed-up Board can get in 75 days of voting before we are again down to one remaining (temporary) member. Hopefully, by then you’ll have a new slate of nominees and the civil service will be saved.

Until … the next time. Wiley@FELTG.com

Who Says AWOL is NBD?

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By Deborah Hopkins, December 18, 2018

A couple of weeks ago, I was teaching a class to supervisors. The topic was discipline. We were discussing AWOL and how serious an act of misconduct it is to just not show up for work, and that, in some instances, a single incident of AWOL could warrant removal.

As is often the case, someone from HR was in the classroom. This person spoke up and said that there was an agency policy that said supervisors could not remove an employee for AWOL unless the AWOL exceeded 10 business days in a year.

Three thoughts went through my mind within a half-second:

  1. Are you kidding me? That policy, if there is one, tells everyone in the agency that AWOL is NBD (no big deal).
  2. Is there really a written policy, or is that one of the “This is the way we do it here” things that is actually NOT a policy? Show me the policy.
  3. So, no matter what happened as a result of the employee being AWOL, that employee gets 80 hours of freebies every year to just not show up? How would that work for an employee who is a surgeon with a patient on the operating table, or an air traffic controller, or a border patrol agent, or a security guard? I don’t even want to think about the harm that would occur in those cases.

AWOL is a pay status (or really, a non-pay status if you want to get technical), but it is also a labeled disciplinary charge. The elements of AWOL are:

  1. Employee was absent without authorization, and
  2. If leave was requested, the denial was reasonable.

Savage v. Army, 122 MSPR 612 (2015)

AWOL is Serious

More than once in my life, I’ve been stuck at work for hours after my shift when the person who was supposed to relieve me didn’t bother to show up. It’s never fun to be in that position. And despite what at least some folks think, AWOL is serious business on top of the inconvenience is causes. There is an inherent relationship between continuous unexcused absences and the efficiency of the service, since an essential element of employment is to be on the job when one is expected to be there. To permit employees to remain away from work without leave would seriously impede the function of an agency, impose additional burdens on other employees, and if tolerated, destroy the morale of those who meet their obligations. Ajanaku v. DoD, 44 MSPR 350, 355 (1990).

Indeed, MSPB has found, for the last 40 years, that even a few hours of AWOL warrants discipline, up to and including removal. In an early AWOL case following the implementation of the Civil Service Reform Act, the MSPB found that four unexcused absences totaling 17 hours in a one-week period warranted termination. Banks v. DLA, 29 MSPR 436 (1985).

AWOL for Employees Actually at Work

Did you know an employee can be AWOL even if she is at work? There are a number of situations that culminate in this kind of scenario. An agency may charge an employee AWOL for conducting personal business while on duty. Mitchell v. DoD, 22 MSPR 271 (1984). Discipline for sleeping on the job or wasting time is imposed in the same manner as discipline for AWOL. Golden v. USPS, 60 MSPR 268, 273 (1994). AWOL is the proper charge when an employee is ordered to another worksite (e.g. training), but instead reports to the regular worksite, or the employee remains on agency premises (e.g. lunch room), but not at the specified work location. Moreover, if an employee is insubordinate and is told to leave the work site until he agrees to follow directives, he is not on approved leave; he is AWOL. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Leave Restriction and AWOL

Though not a form of discipline, an employee removed for AWOL who has received a Leave Restriction Letter can be disciplined more severely than an AWOL employee who has not been given a leave restriction letter. This is probably most relevant in the “comparator employee” Douglas factor analysis. McNab v. Army, 2014 MSPB 79.

Disciplining for AWOL

You’ll need to do a Douglas factors analysis to determine what the appropriate penalty is for an employee who is AWOL. AWOL charges usually result in progressive discipline, particularly when the amount of AWOL is measured in hours rather than days and the harm is not great. Here’s the FELTG approach.

1st offense AWOL: Reprimand

2nd offense AWOL: Reprimand in Lieu of Suspension

  • Warn that a future act of misconduct will result in removal. This makes far more logical sense than suspending an employee (sending them home) when they didn’t bother to come to work.

3rd offense AWOL: Propose Removal

  • In Douglas analysis, Factor 1, emphasize harm:
    • Coworkers having to do the employee’s work
    • Services not being provided
    • Increased expenses
    • Anything else relevant

And there you have it. Remember, if the AWOL was significant in time or there was great harm or potential for harm in the absence, you can jump right to the removal. Good luck out there. Hopkins@FELTG.com

Restock Your Manager Toolbox in 2019

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By Dan Gephart, December 18, 2018

When my son decided to move from South Florida (a place he’d lived his whole life) to the Northeast last winter, the wife and I bought him everything he would need for the ice, snow, and bitter temperatures that he was sure to face. That included two essential tools that he had never touched in his life — an ice scraper and a snow shovel.

A year later, it was the wife and I, and dog, who made our way back to the North. And it wasn’t long, thanks to the rare pre-Thanksgiving first snow, that we had our own taste of wintry weather. I was thrilled to witness the falling white fluff slowly accumulate on our South Jersey sidewalk. Why not? It was beautiful. And I was inside, warmed by the cup of hot coffee in my hand. But as the snow started to pile up, I came to a sudden and terrifying realization: I never bought a snow shovel for myself.

There was no way I was going to send my son into a situation without the proper tools. Yet, I failed to stock my own toolbox.

When we think of training, we tend to think of our staff, our charges, our teammates. When is the last time you thought about training for yourself? When’s the last time you filled your toolbox with the new strategies and knowledge that could make a difference at your agency? You may be a supervisor. You may be a manager. But are you a leader?

We have all had the unpleasant experience of working for a manager who was not fit to lead. If you haven’t, consider yourself blessed. “Unfit managers” climb the ladder due to skills that have nothing to do with leadership. Their poor leadership takes its toll on the workplace. I need not remind you that the majority of non-supervisory federal employees feel that their managers fail to deal with poor performers and fail to recognize positive performance in a meaningful way. That’s what the Federal Employee Viewpoint Survey tells us every year.

A leader will improve employee engagement, boost morale, and help an agency meet its mission. A leader will find a way to keep his or her best employees. And a leader will act swiftly to rid its agency of poor-performing and misbehaving workers.

My soon-to-be-retired friend Bill Wiley often tells federal managers: You are doing important work. I agree. And there’s absolutely no reason to not show up at your job with every single possible tool at your disposal.

Am I a little biased here? Absolutely. After all, my job title is Training Director. But I will also tell you with no hesitation and with utmost confidence that you’re not going to find better federal employment law training than what you will get from my talented colleagues here at the FELTG. The new year is always a great time to take stock of your personal goals. It’s one of the times when we all are more likely to consider what we need to do for self-improvement. Think of how important training is in your development as a leader and to your agency’s mission.

Back to that snowy day a few weeks ago. I went down to the basement and looked for the closest thing to a snow shovel. What I found was great for digging holes in the backyard, but not necessarily for shoveling snow, particularly when it’s grown past three inches and transformed into a hard icy mix.

I tackled the job as best I could. It didn’t look pretty. It didn’t sound pretty (unless you love the sound of metal scraping against cement). And it left me with a sore back. But I survived. Without the right management tools, you may survive, but it definitely won’t be pretty for your agency or your team. Gephart@FELTG.com

Tips From the Other Side, Part 12

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By Meghan Droste, December 18, 2018

One common theme in a few of my articles this year has been timeliness, such as the timely filing of formal complaints and the timely completion of investigations.  One key question in all timeliness issues is: How do you calculate deadlines? After all, how do you know if something is untimely if you don’t know what the deadline is?  This week’s Tips from the Other Side come from two cases in which the agencies incorrectly deadlines, which led them to improperly dismiss complaints as untimely. [1]

In Janay H. v. Army, EEOC App. No. 0120143216 (Feb. 5, 2015), the agency issued the Notice of Right to File on July 18, 2014 and the complainant filed her formal complaint on August 4, 2014. The agency then dismissed the complaint, in part because it deemed it to be untimely. The agency asserted in the dismissal and during the appeal that the 15-day deadline to file a formal complaint was August 2, 2014 and, therefore, the complaint was two days late.  The agency failed to note, however, that August 2 fell on a Saturday and the complainant filed her formal complaint on the first business day after the deadline.  In its decision reversing the dismissal and remanding the complaint for processing, the Commission reminded the agency that when a deadline falls on a weekend or federal holiday, it is automatically moved to the first business day following the deadline. The complaint was timely, the Commission found, because the complainant filed her formal complaint on the Monday following the Saturday deadline.

In Takako Y. v. Army, EEOC App. No. 012016159 (Oct. 19, 2016), the complainant filed multiple motions to amend while her initial complaint was pending the assignment of an administrative judge for one year.  Once the Commission assigned the case to a judge, the judge denied the motions to amend and remanded the new claims to the agency for processing.  The complainant contacted an EEO counselor 14 days after the judge denied the motion to amend.  The agency then dismissed all of the claims as untimely.  In doing so, the agency calculated the 45-day deadline from the date of each incident, and not the date of the judge’s ruling. In its opposition to the appeal of the dismissal, the agency argued that because the Commission had not yet assigned the initial EEO complaint to an administrative judge, the complainant should not have filed motions to amend instead of new complaints. The Commission disagreed and reversed the agency’s dismissal of the claims. It found that the administrative judge erred in not instructing the agency to use the date of remand as the date of EEO contact, and the agency erred in failing to do so on its own.   When confronted with the task of determining whether a complaint, or any other document, is timely filed, be sure to double or even triple check the regulations and a calendar if needed.  While dismissing the complaint might save some time at the outset, it will ultimately create more work once the agency has to respond to an appeal. Droste@feltg.com

[1] Full disclosure: I represented the complainants in both of the featured cases.

How Do You Solve a Problem Like a Breach?

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By Meghan Droste, December 18, 2018

This month’s earworm comes to you from The Sound of Music. Although not a seasonally relevant film, it has been stuck in my head for weeks. That’s why when I read this month’s recent case, I thought of the song “Maria.” In the song, the nuns discuss how to pin down Maria, whose head is always in the clouds. The EEOC’s decision in Shaniqua W. v. U.S. Postal Service, EEOC App. No. 0120182033 (Sept. 11, 2018) left me thinking about what parties can do to pin down a way to specifically perform the terms of an agreement when one party does the very thing they agreed not to do.

In Shaniqua W., the agency and the complainant reached an agreement that included a provision regarding the supervisor’s handling of emails from the complainant. The parties agreed that if the complainant sent an email to her supervisor, the supervisor would not forward the email to other coworkers.  Just over one month after the parties entered into the agreement, the complainant sent an email to her supervisor alerting him to an issue with two of her coworkers. The supervisor then forwarded the complainant’s email to the two coworkers at issue. When the complainant notified the agency of the breach of several provisions of the agreement, the agency determined that the supervisor did violate the agreement but found it had already cured the breach.  The agency stated in its Final Agency Decision that the supervisor “realize[d] the magnitude of the mistake and has assured that this type of error was a single occurrence and will not be repeated.”  The complainant was dissatisfied with the agency’s FAD and filed an appeal.

In its decision on the appeal, the Commission agreed with the finding that the supervisor had violated the agreement.  Unlike the agency, however, it was not persuaded that the supervisor’s assurances were sufficient to cure the breach.  The Commission noted that the breach occurred just over one month after the parties signed the agreement. It also found the supervisor’s lack of explanation for his breach to be concerning. Ultimately the Commission concluded that the supervisor’s “remorse [was] insufficient to demonstrate that the breach was cured.”  It ordered the agency to either reinstate the complaint or specifically perform the terms of the agreement.

When I reached the end of the Commission’s analysis, but before I continued on to the specific terms of the order, I wondered how the agency would be able to specifically perform the term that the supervisor had already breached, particularly when the supervisor’s promise not to do it again was insufficient. It’s not quite as hard as keeping a wave on the sand, but it does seem a little difficult to pin down. The Commission addressed the question by ordering the agency to issue a written counseling to the supervisor, with a copy to the complainant, reminding him of his duty to abide by the agreement. We don’t have a way to know whether the complainant chose specific performance or reinstatement of the complaint, but hopefully either option addressed her concerns and didn’t leave her feeling like she was trying to catch a moonbeam in her hand. Droste@feltg.com

Get Off the Pot

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By William Wiley, December 18, 2018

As our readers know, we strongly advocate that supervisors use the legal tools of civil service due process when confronted with an employee who is not doing his job. In our training, we describe the tools available to supervisors and explain how to use them. Sometimes we get a little pushback, usually from supervisor-participants who have one reason or another why our recommendations are ineffective. Unexpectedly, in one recent webinar, we got not one, but THREE reasons why the FELTG Way© would not work:

  1. If I do what you’re saying, the employee will go to the union and claim a hostile environment.
  2. My boss rates my performance down if I get EEO complaints or grievances.
  3. I don’t want to do that to my worst employee because I’m afraid that he will attack me physically.

To some, these are valid reasons for not doing what they are paid to do. For others, these are just whining. Here was our response to each of these concerns:

If I do what you’re saying, the employee will go to the union and claim a hostile environment.

Yeah, and if you play football, you’re going to get pushed around every now and then. If you get on a crowded bus, sometimes someone else is going to take the seat that you wanted. Employees have the legally given right to complain to their union representatives. They can say anything they want, characterize your treatment of them any way they choose to characterize it. However, that doesn’t mean that their complaints are justified. That doesn’t mean that you should not do what needs to be done to run your little part of the government. By law, holding an employee accountable because they are doing bad work or disobeying rules is NOT a hostile environment. Oh, the employee might complain that it is, but that doesn’t make it so. The union might get all in your face about how you’re mistreating the employee, but that’s just their job. Union claims do not make things true. If I were to say to you that you owe me $100, would you just hand me $100? No, you would not. You would stand up for yourself. Well,  then, stand up for yourself when confronted by an employee or the union. As a supervisor, you are being PAID to stand up for your obligation to manage. If you do not have the courage or self-esteem to stand up, that’s fine. Just stop taking the government’s money that you are being paid to be a supervisor. Request a demotion and get out of the way to allow someone else to do what needs to be done.

My boss rates my performance down if I get EEO complaints or grievances.

Then you have a horrible boss who should get on board or get off the ship. Congress did not create the various federal agencies to have a place for employees to be stress-free and coddled by their managers. It created the agencies to get the work of the government done. How far do you think a basketball team will get if the coach says, “I don’t care how well you play; just don’t get any fouls.” Employees have the right to file complaints. We cannot take that right away from them. If we do whatever is necessary to avoid the complaint, then we have turned over management of the federal workplace to the employees instead of the supervisors. All an employee would need to do to get a raise, or full-time telework, or any other undeserved benefit would be to threaten to file a complaint. It is stupid and foolish to rate a supervisor’s performance solely on the number of complaints filed (if there is validity to the complaints, then of course that’s another story). If your supervisor rates your performance low because of the number of complaints filed, you should challenge that rating to his supervisor. And if confirmed at the next level, you should grieve your rating as high as possible within the administrative grievance procedure. If you exhaust the grievance procedure and the result is that all levels of supervision above you believe that you are a poor supervisor simply because of the number of complaints filed, send all those decisions to us here at FELTG. We know a guy or two over on Pennsylvania Avenue in DC and a Congress on Capitol Hill that would be interested to know that there is a group of federal managers who is afraid of its employees. The absolute epitome of an inept civil service is one in which the employees run the place and managers cower in the corner. If no one else will stand up for an efficient and fair federal workplace, we will here at FELTG. 

I don’t want to do that to my worst employee because I’m afraid that he will attack me physically.

You know what? Nobody ever promised you that being a federal supervisor was easy. The job announcement under which you applied for your job did not say, “This work will always be a piece of cake.” We don’t promise firefighters that they will never get burned. We don’t tell the applicant to be a bomb squad technician that she will never be scared. We don’t recruit soldiers and guarantee them in their enlistment papers that they will not be shot at. Being a federal supervisor can be a very tough job.

There are measures in place to protect the supervisor from being mistreated by his employees. The Federal Protective Service is available for protection within a federal workspace. The Federal Bureau of Investigation has the jurisdiction to intercede if a federal official is threatened away from the workspace for work-related reasons (I know this first-hand, folks; serving as an Administrative Judge at MSPB ain’t the safest job in the world, either). Although these protections are significant, sometimes federal employees get burned and shot at; it’s just part of the job. If you don’t have the courage to be a federal supervisor, to stand up to employee complaints, bad supervision, or even physical threats, that’s fine. Go do something else. Let someone who has what it takes to be a federal supervisor serve in your place. You owe it to yourself, and you darned sure owe it to the American people. Stop taking a paycheck you do not earn.

I am at the end of my career. For the past 40+ years, I have tried to help the federal civil service be a better place for all of our citizens, to do what was intended when we decided to govern ourselves rather than comply with the demands of some dictator or king. After all this time, I am convinced that the weaknesses and the faults within our system do not lie with the unions. We don’t need new laws to have an efficient and fair government. Even the leadership from the White House doesn’t make much difference long term. What we need is supervisors and managers who have the courage to do what they are being paid to do and hold bad employees accountable for their bad-ness. We need agency lawyers who understand why delayed action is as bad as no action and who are not afraid of taking chances every now and then. We need human resources professionals who are not fearful of making mistakes and who have the initiative to learn this business that they are expected to know.

If you are one of these people, then FELTG is honored to support you. However, if you are a whiner and complainer, someone who does not do what you are expected to do in your position, then get off the pot. Be gone. Move out of the way so that someone braver than you can take over.  Wiley@FELTG.com