Transition Talk: Be Honest and Positive, and Offer Training to Appointees

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By Dan Gephart, March 2, 2021

This is the final article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new Administration. See our previous articles in the series:

 

Ann Boehm experienced a number of presidential transitions during her 26-year Federal career. Her most recent transition was in 2017. Ann was working for the U.S. Marshals Service, where more than 90 presidentially appointed marshals were potentially entering on duty.

“During the 2017 transition, we decided to mandate a training course for the new U.S. Marshals,” Ann said. “The training included procurement, appropriations, and personnel law, as well as other things regarding the day-to-day running of the U.S. Marshals Service. The Marshals greatly appreciated the training. Presidential appointees are busy people, but agencies committed to providing them with effective training can ease the transition for everyone involved.”

DG: What is the best advice you have ever given — or would like to have given — to a presidential appointee?

AB: I think it is important for presidential appointees to listen to the career Federal employees. Sometimes the appointees undervalue the career feds. They also may be coming from the private sector or even state or local government, and they need to get assistance from the career employees on how procurement, appropriations, and personnel (from hiring to firing), among other things, all work in the Federal government.

DG: What is your advice for FELTG readers working with new presidential appointees?

AB: The most important thing to do when working with new presidential appointees is to maintain a positive attitude. Most human beings do not like change, and most presidential appointees come into an agency looking to change things. Career Federal employees can sometimes be overwhelmed by appointees coming in and wanting to alter the way the agency runs.

It’s important to understand the appointees’ motivation, and also to educate them if an idea is unlikely to succeed. In my experience, the appointees want to succeed, and a logical argument can go a long way toward helping them understand agency culture and what is likely to be the best way to further the agency’s mission.

DG: What is the most important skill necessary to survive and thrive in a new administration?

AB: I think the most important skills are flexibility and honesty. Do not be afraid of new ideas, but be prepared to explain when things are not working.

Ann will be one of the presenters at the upcoming MSPB Law Week, FLRA Law Week and the FELTG Forum 2021: Emerging Issues in Federal Employment Law. If you’re interested in bringing Ann Boehm to your agency for training, email Gephart@FELTG.com.

President Biden and the Trump Civil Service EOs: What It All Really Means

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By William Wiley, February 22, 2021

Well, it didn’t take long, did it? In his first three days on the job (not bad for a probationer), President Biden recognized what most every reader of this newsletter already knows: “Career civil servants are the backbone of the federal workforce.” Take THAT, you crummy old political appointees. You just got slammed by The Man in the White House.

On Jan. 22, 2021, the White House issued the “Executive Order on Protecting the Federal Workplace,” developed in large part to set aside several EOs issued by the previous White House. Those Trump EOs, in the eyes of many, undermined or had the potential to undermine a number of core statutory protections for career federal employees.

It’s our job here at FELTG, among other things, to try to explain to normal people what actions like this really mean out there on the front lines where most of you in the FELTG Nation spend your time trying to do the work of government. So here we go with our insightful and occasionally scintillating analysis. (Editor’s note: For more detailed analysis, join Ann Boehm and Deborah Hopkins for an encore presentation on Changing Course: Understanding Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on Thursday at 2:30 pm.)

First things first: DO NOT BE MISLED BY WHAT YOU HEAR OR READ IN THE MEDIA. Whenever you read a newspaper article about these EOs or see a talking head “expert” on CNN or Fox, keep in mind that those (usually) well-intend folks are there to grab your eyes, not necessarily to provide detailed guidance to exactly what is happening. “If it bleeds, it leads” is a decent motto for a reporter, but that doesn’t always fit with the bottom line to what’s really going on. For example, from the very first that the previous EOs hit the ground in the summer of 2018, articles in the media often read as if it was the End of the World for Federal employees. Our friends on the union side were horrified and appalled at what was happening to their rights. Lawyers who represent employees in appeals and grievances were beside themselves with the restrictions being imposed by the White House on the Federal workforce protection processes. Even Federal judges, when called upon to rule on related cases before them, did not always take the time to parse out exactly what the Trump EOs were doing, and not doing, to the civil service.

Our job here a FELTG is to inform and provide guidance related to civil service law. Whether it bleeds or not, makes little difference in our analysis of these issues. Neither should yours. Read those articles and watch MSNBC or Newsmax every chance you get. Just keep in mind that you need a more balanced analysis to decide what you have to do to implement this new Biden EO. So here we go with our view of balance:

Executive Order on Protecting the Federal Workplace

There are a number of issues addressed in the Biden-EO that are important, but beyond the scope of this limited article:

  • The dreaded Schedule F is revoked (❤).
  • Centralized OPM control of labor relations is revoked.
  • The direction that management representatives negotiate to restrict union time, deny unpaid union access to government facilities, and limit the scope of grievance procedures is revoked.
  • The prohibition on negotiating the “permissive” subjects of bargaining, 5 USC section 7106(b)(1), is revoked.

These issues arose because of the issuance of EOs 13836, 13837, and 13957. As a practical matter, these three EOs (of the four being rescinded) were the most controversial from a legal standpoint and were challenged in Federal court immediately upon issuance.

That leaves EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.” Unlike the other Trump EOs being set aside by the Biden EO, there were no big legal issues being put into play. Rather, EO 13839 simply directed agencies to exercise their existing legal discretion, defined by 40 years of MSPB case law, in a particular manner. A number of articles written at the time of issuance described this Trump EO as taking away existing employee rights. Well, as we wrote in this newsletter at the time, there were NOT any employee rights being violated. Yes, the EO directed that managers exercise their existing flexibilities in a narrow manner disliked by a number of employee representatives in our field, but that didn’t make the EO mandates illegal.

EO 13839

Here’s what the Biden EO says about this particular “accountability” EO:

Sec. 3 (c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles), is hereby revoked.

Sec. 3 (e) The heads of agencies whose practices were covered by Executive Order … 13839 shall review and identify existing agency actions related to or arising from those orders. Such actions include:

Sec. 3 (e)(v) Revisions to discipline and unacceptable performance policies, including ones codified in bargaining agreements, issued pursuant to section 7(b) of Executive Order 13839;

Sec. 3 (f) The heads of affected agencies shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review described in subsection [above].

Carefully notice what this EO requires you to do (and, conversely, what it does NOT require you to do):

  1. Read section 7(b) of Trump Executive Order 13839, which says, “The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order,”
  2. Determine which agency discipline and performance policies were modified because of EO 13839, and then
  3. Rescind those policies.

These are the requirements that EO 13839 mandated you to include in your agency’s policies:

  • Limit opportunity periods to demonstrate acceptable performance (DPs/PIPs), generally, to 30 days.
  • Do not prohibit removing an employee simply because a different employee was not removed for comparable conduct.
  • Do not require suspension of an employee before proposing to remove that employee.
  • When selecting a penalty, consider the employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.
  • Issue decisions on proposed misconduct removals within 15 business days of the end of the employee reply period.
  • Limit the written notice of adverse action to 30 days.
  • Use the adverse action (misconduct) removal procedures in appropriate cases to address instances of unacceptable performance.
  • Prioritize performance over length of service when determining which employees will be retained following a reduction in force.
  • Do not, in general, modify an employee’s official personnel records as part of the resolution of an employee’s complaint, grievance, or appeal.
  • Provide detailed reports periodically to OPM relative to removals, settlements, and disciplinary actions.

Steps 2 and 3, require agencies to rescind any of the above requirements in agency policies IF AND ONLY IF those policies were implemented because of the mandates of Trump EO 13839. Remember, there is nothing inherently illegal in these policies. In fact, they closely track well-established MSPB case law, Board decisions that acknowledge that agency managers have significant flexibility when disciplining and removing non-productive civil servants. If you had any of these policies in place before EO 13839 was issued, or developed these policies independently of EO 13839, then the Biden-EO does not require you to rescind them.

For example, if your agency independently decided to issue a policy that a DP generally should not exceed 30 days, you may keep it in place. President Biden isn’t saying that there’s anything wrong with a 30-day DP, just that a decision to implement a 30-day DP is not something that he thinks should be mandated by a Presidential order. He has said he does not believe in an “imperial Presidency.” The abolition of EO 13839 (and, in many ways, the parallel revocation of EOs 13836 and 13837) is a reflection of that style of management, allowing these decisions to be made by lower-level managers, not by mandate from the Big Kahuna himself.

Bottom Line: Saying that the Biden EO has restored “employee rights” to the civil service is a limited characterization. At least relative to EO 13839, President Biden has restored “management flexibilities” relative to decisions being made by agencies when dealing with poor performers and misbehaving employees. For example, under the Trump EO, an agency could not offer an employee a clean record in exchange for the employee withdrawing an appeal. Under the Biden EO, an agency can now offer a clean record in resolution of a complaint. It doesn’t HAVE to offer a clean record, but it can. Greater management flexibility can be a good thing.

On the other side, however, increased management flexibility can result in inexperienced managers exercising their flexibilities in ways that do not necessarily lead to an efficient and effective federal workforce. For example, we have it on good authority that one of the reasons that the Trump EO limited DPs to 30 days was because records show that some federal supervisors were initiating 90, 120, even 6-month DPs. President Biden has now restored the ability of agencies to return to such extended demonstration periods if agency policy-makers so choose.

Now that you have your flexibilities restored, you might want to consider coming to an FELTG seminar or two for help in deciding how to exercise those flexibilities legally. Based on the many years of experience possessed by just about every one of our instructors and speakers, we can show you what the law and case law is relative to all of these civil service management issues, guide you through the decision-making process while weighing risks and benefits, and even assist you in exercising the options that you were denied under the previous EOs.

We’ve never claimed that we should make agency decisions for you, but we do claim to know the legal parameters in which you can act. It’s a new day in the civil service. Take advantage of it while you can. Wiley@FELTG.com

Joe Schimansky: Add Value, Listen, and Set the Record Straight

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By Dan Gephart, February 2, 2021

This is the third article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new administration. See our previous article in the series:

 

Joe Schimansky (pictured here), former executive director of the Federal Service Impasses Panel, still regrets how he handled a long-ago meeting with a newly confirmed political appointee.

Joe was asked a question about the FSIP’s processes. After a purposely succinct response, the appointee accused Joe of answering with a variation of “because that’s the way we always do it.”

“To be clear,” Joe explained. “That’s not what I said, but how she interpreted what I said. At that point, I should have responded by indicating that the FSIP’s processes have evolved over many years for sound practical reasons.”

In deference to the appointee’s position, Joe did not respond. He learned the hard way that it often falls on career staff to set the record straight.

“Political appointees often come into their first meetings with their newly acquired professional staffs after having been told how badly the particular organizations they are now responsible for leading were run by their politically appointed predecessors,” he said.

During one transition, a higher-up in a federal sector union had met with President Clinton’s new FSIP chairman and “spread poorly informed allegations” about how long it took the previous administration to resolve impasses.

“When I met with my new boss, her head had already been filled with horror stories about how incompetent her newly inherited staff was at fulfilling its mission in a timely manner,” Joe said. “I was fortunate to have a new boss who had been a career fed and understood the dynamics of transitions.”

Joe was given time to research the allegations and found a legitimate explanation for all of the delays. But you’re not always going to work with appointees with Federal backgrounds. Joe offered some other worthwhile advice.

DG: What is your best advice for FELTG readers working with new presidential appointees?

JS: When dealing with new presidential appointees, the best advice I can think of is to strive to add value to their lived work experience. How you do that usually depends on the appointee’s understanding of the mission of your agency and the portion of that mission your particular part of the organization is responsible for. The typical way to assess this is by preparing detailed briefing materials that cover the main areas of your professional responsibilities and to schedule a reasonable time period to present the material.

Always remember you are engaging in a dialogue with the appointee and not merely presenting a stale lecture. Engaging in a dialogue allows the appointee to ask questions that will inform you of what the appointee understands already and what they may not grasp about the limits of their authority.

In this regard, you should be attentive to how the briefing is being perceived. I recall a briefing that I and the rest of my staff prepared for a group of newly appointed Impasses Panel members. It became clear early on that the material was far too detailed for the audience — part-time presidential appointees, most of whom had very little knowledge of how the Federal sector impasse resolution process works. The staff quickly perceived that the presidential appointees’ eyes were glazing over as we dug deeper and deeper into the FSIP process. The best response in this circumstance was to shorten the length of the briefing and to highlight only the most important points you want them to come away with. Opportunities to “teach them up” would be plentiful over the next four years.

DG: What is the most important skill necessary to survive and thrive in a new administration?

JS: The first skill that popped into my head was “active listening” defined as “where you make a conscious effort to hear not only the words that another person is saying but, more importantly, the complete message being communicated.” To do this, you must pay attention to the other person very carefully, particularly to his or her body language and non-verbal cues. I would suggest that most career management officials meeting with their newly appointed political bosses have reached that higher level in their organizations because they were already accomplished active listeners, but I’m sure there are exceptions. Through active listening, a career civil servant is more likely to add value to a political appointee’s lived work experience. If you do that, you can survive and thrive in a new administration.

Joe Schimansky will also be one of the presenters at FLRA Law Week. Joe is available to provide training to your agency on topics such as employee accountability, MSPB and EEO law, discipline, and much more. If you’re interested in bringing Joe Schimansky to your agency for training, email Gephart@FELTG.com

The State of the Civil Service: The Whiplash is Real

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By Deborah Hopkins, January 25, 2021

For the last couple of Januaries, I have written an article on the state of the civil service. It provides a glimpse of where  we’ve been over the last year, and gives me a chance to point out the one or two significant changes we might be expecting.

This year, so many changes have taken place over just the last few days, the undertaking to summarize what’s happening is massive. But I’m up for the task if you have a few minutes to read it. Let’s look at what’s happening in the world of Federal employment law.

Federal Employee Morale

For decades, Federal employees have borne the brunt of public scrutiny. When one employee does something bad, somehow all 2 million-plus are unfairly painted as slackers who break rules and earn an easy paycheck on the taxpayers’ dime while not really doing any work. That is dead wrong, but such a perception deeply impacts morale.

Morale among employees has been even lower over the past few months as they have dealt with the physical and mental challenges of a global pandemic, a contested election, a riot at the Capitol, and tumultuous transition to a new administration.

Last week President Joseph R. Biden, Jr. put out a video where he directly addressed career civil servants, thanking them for their service and letting them know how important they are to a functioning government. “You’re running the show,” he said. The President’s words, combined with actions taken in his first few days, demonstrate that the Federal workforce is a priority.

Executive Orders

Just hours after being sworn in, President Biden signed two executive orders that directly impact Federal employees:

  • 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
  • 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

There’s a lot to unpack in these orders, including time-sensitive requirements for agencies, plus details on how the Supreme Court case Bostock v. Clayton County applies to the Federal government.

We’ll be sharing the most important takeaways and action items in the 60-minute webinar Changing Course: Understanding the Biden Executive Orders on Racial Equity, Gender Identity, and Sexual Orientation on February 9 at 1:00 pm eastern. Join us to be sure your agency is compliant with these new requirements.

But wait! Only two days later, President Biden issued an EO on Protecting the Federal Workforce. With seven sections and a signature, this EO revoked President Trump’s Executive Orders 13836, 13837, and 13839 – the famous EOs heard ’round the world that impacted labor relations official time, contract negotiation timelines, topics of bargaining, performance and disciplinary actions, clean record settlements, and more. And if that wasn’t enough, it also eradicated the Schedule F classification mandated by EO 13957.

You might have questions, such as:

  • What does this mean if your CBAs were already renegotiated?
  • Is progressive discipline going to be mandatory now?
  • Do PIPs have to be longer than 30 days?
  • What happens if your agency already sent Schedule F lists to OPM?

There’s a lot to figure out and not a lot of time to do it. We know you are incredibly busy, so leave it to FELTG to weed through all the details and provide you with the important information. Ann Boehm and I will present all the need-to-knows and action items in a 90-minute webinar Changing Course: Understanding the Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on February 9 at 2:30 pm eastern.

MSPB

In Democratic administrations, we tend to see MSPB Members who are more pro-employee; in Republican administrations the majority tends to be more pro-management (depending on how the vacancies fall, as these are seven-year fixed terms). Because all three positions are vacant, President Biden will almost certainly nominate two Democrats and one Republican to the MSPB.

But if you think this pro-union administration is going to take it easy on employees who misbehave, think again. During a virtual swearing-in ceremony on January 20, the President told several hundred political appointees: “I’m not joking when I say this: If you’re ever working with me and I hear you treat another with disrespect, talk down to someone, I promise you I will fire you on the spot. On the spot. No ifs, ands, or buts. Everybody is entitled to be treated with decency and with dignity.”

Following this logic, we can expect that agency leadership will also prioritize discipline for career employees who engage in disrespectful conduct, conduct unbecoming a federal employee, or similar charges. And if your disrespectful employees happen to be law enforcement officers, the standard is even higher. We’ll explain why on February 23 during the virtual training A Higher Standard: Disciplining Law Enforcement Officers for Misconduct.

We’re expecting nominees to be named soon, and if we’re really lucky we’ll start getting some decisions in time for MSPB Law Week, March 29 – April 2, so register soon and save your seat.

Whistleblowers

The incoming Board Members will have a lot of work to do. Almost 3,100 Petitions for Review are awaiting action, and somewhere around 700 of those deal with allegations of whistleblower reprisal. We can expect the Biden administration to make whistleblower cases a priority, as the President himself has spoken about the importance of employees coming forward with allegations of waste, fraud, and abuse. If you need to brush up on your whistleblower law (and really, who among us doesn’t?), FELTG Instructor Bob Woods will do that in just 60 minutes on February 25 during the webinar Why, How and When to Avoid Whistleblower Reprisal.

Inspector General Oversight

Expect a return to independence for Federal Inspectors General. Last May, then-candidate Biden told the Washington Post that he would never fire a Federal IG. In his words, IGs are “… designed to make government honest. To keep it honest.”

IGs will likely be busy with this shift in priorities – as happens with any change in administration – and it’s time to plan for the year ahead, now that those priorities are becoming more clear. Join us this Wednesday, January 27, at 12:30 pm eastern for the virtual training An OIG Guide to Annual Planning and Benchmarking for Best Practices.

EEOC

Here’s something interesting. The EEOC under the Biden administration will have a Republican majority (3-2) until July 2022. The five Commissioners have 5-year staggered terms, and Commissioners can only be removed for cause – they don’t serve at the pleasure of the President. President Biden made Commissioner Charlotte Burrows (D) the Chair on January 21, but this does not alter the timelines of the appointment terms.

Where will the Commission take us in the year ahead? Find out during EEOC Law Week, March 15-19.

FLRA

Friday morning, Federal labor relations was one way. Friday afternoon, the outlook was 180 degrees different. We’re working through EO 140XX . By our February 9 webinar, we’ll have a summary of what you need to do regarding contract provisions that met EO 13836 and 13837, guidance on permissive bargaining, official time, and more. And join us for FLRA Law Week May 10-14, where the entire world of Federal labor relations will be discussed in depth.

Closing Thoughts

I know this was a long read, so thanks for hanging with me. For more than 20 years, FELTG has done its best to be your source for the most accurate and current Federal employment law news and training, and this year is no different. These actions are so important, and have such an impact on you, that we would be remiss if we didn’t provide you with content and training opportunities on all of it.

Stay tuned. It’s going to be quite a year. Hopkins@FELTG.com

Top 10 FELTG Newsletter Stories of 2020

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By Dan Gephart, December 7, 2020

Our last newsletter of the year will be published next week. So barring any major late-breaking news, this is the final FELTG Flash of 2020. As we’ve done the last couple of years (2019, 2018), we’d like to take this opportunity to look back at our most popular newsletter stories (based on the number of reads and forwards) over the past year.

I know what you’re thinking: “A look back? At 2020?”

Well, yes. While many of us quarantined in our homes, federal employment law challenges continued to run rampant. As always, FELTG was here to help guide you.

This year’s Top 10 stories reveal a wide range of issues related to performance, conduct, telework, sexual harassment and, in a few cases, how those situations were impacted by COVID-19.

1 – He Claimed He Teleworked for 2 Months, but His Laptop Charger Was at the Office (June)

2 – Why a Supervisor Should Never Give a Summary Performance Rating of Unacceptable (January)

3 – Failure to Follow Instructions: A Charge That Seems Particularly Fit for 2020 (May)

4 – What Dave Wants Dave Gets: Sexual Harassment is Misconduct (September)

5 – To Err is Human — and Maybe Also a Reason to Change a Personnel Record (May)

6 – Is There a Legal Path to Fire Dr. Fauci? (July)

7 – The Great Debate: Douglas in the Proposal or Douglas in the Decision? (January)

8 – Ripped From the Headlines: A Case for Today’s World (August)

9 – Precedential Fed Circuit Decision: Which Expert Determines if Employee is Unfit (October)

10 – How Long is Too Long for COVID-related LWOP? (November)

Twelve months from now, we’ll once again share our top 10 stories. Let’s hope that we will be looking back at a much better year. Gephart@FELTG.com

Good News: With This FLRA, It’s Good to be an Agency, Part Deux

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By Ann Boehm, November 30, 2020

A few weeks ago, I told you about the three FLRA decisions that are definitely on the pro-agency side of the bargaining spectrum: U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020); U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020); and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020). I focused that article on the first case and promised to provide in-depth coverage of the other two in a subsequent article. So here goes:

U.S. Office of Personnel Management, 71 FLRA 977

This case makes zipper clauses a mandatory subject of bargaining.

Let’s start with what may seem like a basic question: What is a zipper clause? A zipper clause is a provision in a collective bargaining agreement (CBA) that forecloses the union’s right to bargain during the term of the agreement on matters not contained in the CBA.

Agencies and unions have always had the ability to negotiate over inclusion of zipper clauses in the CBA, but until this decision was issued, zipper clauses were not mandatory subjects of bargaining. With the FLRA now stating that they are mandatory subjects of bargaining, the parties may bargain zipper clauses to impasse.

In practice, this could take away union rights to initiate midterm bargaining. It also could simply result in more clever negotiating tactics by the unions and agencies. Member DuBester suggested as much with this line from his dissent: “In reality, unions wishing to preserve their ability to initiate midterm bargaining will now be required to trade something of value at the bargaining table in hopes of securing what was, until today, a statutory right.” Id. at 985.

You heard it here agencies (thanks to Member DuBester). Be clever in negotiating. Zipper clauses are very much on the table.

U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986

This case allows for Agency head review of expiring, existing collective bargaining agreements when there is a request for renegotiation pending.

Two key statutory provisions apply in the FLRA’s analysis of this matter — 5 U.S.C.§7114(c)(1), which provides that CBAs are subject to agency head review, and 5 U.S.C.§ 7116(a)(7), which provides that it is an unfair labor practice for an agency to enforce a rule or regulation in conflict with an existing CBA if the CBA was in effect before the date the rule or regulation was prescribed.

Since 1993, the FLRA has held that for CBAs that automatically renew upon expiration, the Agency head may review the agreement the day after the expiration of the CBA window for requesting renegotiation. Kansas Army Nat’l Guard, 47 FLRA 937 (1993). This review ensures that the renewed agreement complies with any rules or regulations that changed during the previous CBA term.

What the Department of Agriculture asked the FLRA to decide in this case is whether there can be Agency head review of an existing CBA when a party requests to renegotiate an expiring CBA with a continuance provision. It’s a pretty discrete issue, eh?

Here’s what the FLRA decided. If a continuance provision extends the CBA past the original expiration date, “the first day of the extension period that is beyond the original expiration date” is the beginning of a new term. Id. at 989. So, on the first day of the extension, all rules and regulations that became effective during the previous term apply, and the Agency head has 30 days to review.

Now once again, Member DuBester was not pleased. He believes this decision is contrary to 5 U.S.C. § 7116(a)(7). According to his interpretation of the matter, a continuance provision is an agreement that the existing CBA remains in full force and effect until a new CBA is approved. Id. at 990. That would foreclose Agency head review. He even goes so far as to say the FLRA’s explanation of how it determined that the extended agreement is in “a meaningful sense” not the same one in effect “is—to put it mildly—novel.” Shazam! Id. at 991.

Well, there you have it. As I said in my previous article, none of these three decisions eliminate the bargaining rights of unions. But they do tilt in the agencies’ favor. Count on all three being appealed by the unions. Stay tuned. And for now, have fun agencies. Boehm@FELTG.com

[Editor’s note: Want to learn more about these and other recent noteworthy FLRA decisions, such as the recent decision that dealt a “major blow” to the 2017 VA Accountability and Whistleblower Protection Act, and their impact on your agency? Register now for What’s Going on at the FLRA? Case Law Updates and More on December 8 from 1 – 2 pm ET.]

And Now Another Word With … Bob Lavigna

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By Dan Gephart, November 23, 2020

On the heels of positive vaccine news, talk about the eventual return to workplace normalcy has picked up. But that normalcy does not necessarily mean a sudden end to remote working, especially if government workers have a say.

Eighty-five percent of state and local government employees who did not work at home before COVID-19 want to continue working remotely permanently, at least part of the time, according to a recent survey by CPS HR Consulting. This fascinating report Leading Through a Pandemic: The Impact of COVID-19 on the Public-Sector Workforce, like most of the organization’s work, was focused on state and local governments. But it’s not a stretch to think that many federal employees feel the same as their more local counterparts.

Agency leaders are embracing telework, too. Several told Congress last week they also hope to make telework more permanent in the post-pandemic world. The CPS HR Consulting survey determined that “government should also view the demand for remote work as an opportunity to expand the search for talent (i.e., recruiting may no longer be limited by geography)” and that “leaders need to systematically ask employees for feedback to identify and meet the needs of all employees.” CPS HR Consulting suggests that government organizations:

  • Equip managers and supervisors with the skills to manage results and outcomes (and not just time and attendance)
  • Redesign jobs to adapt them to remote work
  • Acknowledge and communicate that employees working from home must have the flexibility to balance work and personal lives
  • Provide the tools and resources remote workers need, especially technology

“Effective leadership, flexible work environments and effective use of technology can drive employee productivity, well-being and engagement and, therefore, organizational performance – regardless of where employees are working.”

This month, we continue our conversation with Bob Lavigna, director of CPS HR’s Institute for Public Sector Employee Engagement. Lavigna (pictured above) is the former vice president of research for the Partnership for Public Service and author of Engaging Government Employees: Motivate and Inspire Your People to Achieve Superior Performance.

DG: How do you “equip managers and supervisors with the skills to manage results and outcomes (and not just time and attendance)?”

BL: When employees are working remotely, it’s no longer possible for managers/supervisors to know if employees are working productively simply by seeing them at their desks or work sites. Managing in this new and different environment is often difficult. According to one government HR executive, managing remote employees means ditching the, “If I can’t see you, you’re not working” mentality.

Instead, leaders need to measure and manage goals, results and outcomes, not just time and attendance. This often-difficult transition requires new performance metrics, tools, systems, and expectations. And, where possible, even linking financial rewards to results.

To help managers and supervisors adapt, organizations are providing training, tools, resources and tips on leading a remote workforce. Many of these programs are online (including our own CPS HR Consulting training curriculum). For example, one city has assembled a manager’s toolkit that includes tips, articles, webinars, etc. on managing a remote workforce. Organizations are also setting the expectation that managers and supervisors need to be more flexible. According to one government executive, “We’ve had to drastically change,” putting aside the usual focus on counting workers’ hours and days. “People who have kids need to take an hour off to put someone down for a nap or to make a peanut butter and jelly sandwich.”

Government may also need to change how leaders are identified and selected. Organizations need to select managers and supervisors who can manage effectively in this new environment, instead of advancing employees because they have good technical skills or have long tenures.

DG: The report revealed that employees were “anxious” and “stressed” and unsettled, but that was early on in the crisis. Do you think that the answers would be different now? 

BL: Good question. There is some evidence (e.g., from Gallup) that engagement levels were on the rise after declining at the beginning of the COVID-19 pandemic. However, the recent resurgence of the coronavirus is likely to keep everyone unsettled and on edge. I don’t think anxiety and stress will decline until we have an effective vaccine and see some light at the end of this tunnel.

DG: There’s a general assumption among many remote workers that when you work at home, you work more hours. While 34 percent of remote working respondents said they were working more, the majority are not. Is that general assumption just wrong?

BL: I think that 34 percent is a substantial number. But I question the assumption that, during COVID-19, working remotely automatically translates into working more. Given the other factors that affect the ability to work remotely, like the availability of technology and personal responsibilities such as dealing with kids and spouses at home, I don’t think it’s possible yet to evaluate whether the new working environment has resulted in increased workloads. Let’s see what happens when things get back to “normal.” What has clearly changed, however, is when work is getting done.Employees operating remotely are working when they can, while also balancing their personal responsibilities. Therefore, the traditional workday has been stretched.

And we believe this is a permanent change. As the research conducted by the Institute and others has shown, employees working remotely for the first time want to continue this arrangement permanently, at least part-time. In other words, the world of work has dramatically changed. Organizations, including in government, need to adapt to – and not resist – this evolution. Otherwise, government will not be able to attract and retain top talent.

DG: Some employees view attempts to engage them skeptically. How do you get past that?

BL: In our work conducting engagement surveys across the nation, we’ve encountered this skepticism. I remember one employee who stated during an employee engagement kickoff meeting that, in his opinion, the organization’s focus on engagement was merely a cynical attempt to squeeze more work out of employees. My answer was that efforts to improve engagement – done right – should be a win-win. Employees feel better about their work and their organization, and, therefore, are motivated to deliver for the people they serve.

But what does “done right” mean? It means surveying employees to understand empirically what the workforce issues are, preserving the confidentiality of employees’ responses, sharing survey results, making a long-term commitment to improving engagement and – most important – taking action on survey results. Organizations that survey and then fail to act on the results will see a decline in engagement – and an increase in skepticism. And they will deserve these outcomes.

DG: What role does onboarding play in the eventual success or failure of employee engagement efforts? And, if it does have an impact, how do you make sure that remote onboarding lays the groundwork for successful employee engagement?

BL: You only get one chance to make a first impression. Research, including by the Partnership for Public Service, has shown that effectively onboarding new employees results in a higher level of engagement, lower turnover and faster time to full productivity.

But it’s important to define what onboarding is – an integrated set of activities during the new employee’s entire first year that provides the information, support and resources the employee needs to succeed.

Of course, like most activities with a remote workforce, onboarding becomes more complicated. But the fundamentals are the same – provide tools and resources, connect with the supervisor, assign work, set expectations, deliver training and provide feedback. For remote workers, these steps may need to be done virtually. I have worked remotely from my home in Madison, WI for two organizations (way before COVID). In both cases, I was onboarded pretty seamlessly, including setting up my laptop, printer, etc. It can be done, even with a remote workforce.

[Editor’s note: Bring FELTG’s popular webinar training Manging a Mobile Workforce: Tools for Accountability to your agency. For more information, contact Dan Gephart at Gephart@FELTG.com]

And Now a Word With … Bob Lavigna

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By Dan Gephart, November 10, 2020

We’re still a good half-year away from the next Public Service Recognition Week, but we need not wait until May 2021 to recognize the critical work civil servants have done over the last several months.

You know it’s a challenging year when the (arguably) most well-known and respected federal employee, Dr. Anthony Fauci, needs to be protected from constant death threats – at the same time he and his colleagues are working to save lives. Meanwhile, we need to recognize the important work everyone else out there in FELTG Nation is doing during these very trying, and logistically challenging times.

Recognition is a key part of employee engagement, and so we reached out this week to someone who knows a lot about both subjects. Bob Lavigna (pictured above), the former vice president of research for the nonprofit/non-partisan Partnership for Public Service, directed the annual Best Places to Work in Federal Government. The Partnership was also responsible for the federal government’s wide embrace of Public Service Recognition Week, providing a toolkit, organizing events, and facilitating executive proclamations.

Lavigna, author of Engaging Government Employees: Motivate and Inspire Your People to Achieve Superior Performance, is now director of the CPS HR Institute for Public Sector Employee Engagement. He has also been assistant vice chancellor and director of HR for the University of Wisconsin — and he’s a previous winner of Governing Magazine’s Public Official of the Year award.

Lavigna’s focus these days at CPS is on local and state government, as well as nonprofits, but his advice and perspective are as useful as ever for federal leaders.

DG: Not considering the pandemic, what are the biggest barriers keeping supervisors from being better at employee engagement?

BL: I think there are two primary barriers – not understanding why improving engagement is important and not knowing how to improve it.

In the first case, supervisors often consider engagement to be just another touchy-feely HR fad or about making employees happy all the time. And their job is to deliver results, not make sure everyone is happy. What these managers and supervisors often fail to realize is that improving engagement drives productivity and results. In other words, they don’t appreciate the business case for engagement. As I describe in Engaging Government Employees, decades of research, including in government, have clearly shown that improving engagement can dramatically improve organizational performance.

The second reason concerns how to improve engagement. Too often, even when leaders want to improve engagement, they guess about how. The book 180 Ways to Build Employee Engagement includes great suggestions. The challenge is to figure out what will work in an individual organization or work unit. Too often, leaders act without data on what matters to their employees.

Research has shown that the best way to understand the level of engagement is, and what influences engagement, is to conduct an engagement survey. As we advise the public-sector organizations we conduct engagement surveys for, it’s important to generate survey data and drill down to the work-unit level. We can’t prescribe a solution without understanding what the condition is.

DG: Are remote workplace situations a barrier to engagement, or can remote workplaces be an opportunity to improve engagement? And, if so, how?

BL: There are clearly challenges to maintaining the engagement of employees working remotely. However, while it may be a cliché that the flip side of challenge is opportunity, I think this cliché applies today. Organizations that take care of remote employees can actually boost engagement. Taking care means:

Providing strong and visible leadership. Leaders need to continue to be visible, even if not in person. Leaders also should manage goals, results and outcomes, not just attendance and activities. And effective leaders understand that employees working remotely need to balance their work and personal lives. According to one government leader: “We’ve had to drastically change. People who have kids need to take an hour off to put someone down for a nap or to make a peanut butter and jelly sandwich.” Leaders also communicate through multiple means (i.e., not just email or messaging), using telephone, web sites, blogs, intranet, Twitter, Facebook; and face-to-face communication platforms like Zoom, Teams, WebEx and Skype.

Continue to focus on training and development. It might be tempting to overlook employee development as we scramble to adapt to the COVID-19 workplace. But this would be a mistake. Managers, supervisors and employees should continue to focus on development, using options that don’t require in-person contact, including the explosion in online training.

Recognize accomplishments. Our Institute’s national survey has consistently found that a key driver of engagement is making sure that employees feel valued. This can be tough without physical proximity, but it’s important to recognize the contributions and accomplishments of employees working remotely, as well as the employees who continue to report to their work sites.

DG: Many people are suffering from “Zoom fatigue.” They’re just tired of communicating over the computer. Is there ever a danger of over-engagement?

BL: Over Zooming can be a problem, but is not the same as over-engaging. Our research, and the research of others, has shown that employee engagement is low, including in government. I don’t think we should worry about over-engagement, at least not yet.

But we should worry about over Zooming. As our Institute has emphasized, simply seeing employees at work, whether in person or via computer, is no guarantee that employees are being productive. In fact, too many video meetings may actually reduce productivity, Managers and supervisors need to move away from the need to simply see their employees at work. Instead, they should manage goals, products and outcomes; not activities, time and Zoom attendance. More focus on the former and less on the latter will improve productivity and minimize any Zoom fatigue. [Editor’s note: For more guidance on communication in a remote environment, read about Zoom Zombies, and/or register for The Performance Equation: Providing Feedback that Makes a DIfference.]

We’ll talk more with Mr. Lavigna about the latest trends in employee engagement in an upcoming FELTG Flash. Gephart@FELTG.com

OPM’s New Regs Clarify Who is Responsible for Douglas Factors Analysis

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By Deborah Hopkins, October 26, 2020

There is a lot going on in our country right now. The election is in just a week (though it feels like it’s been going on for years – and in some ways, it has) and the news cycle is packed with that, plus the ongoing pandemic.

In addition, the telework is continuing for many of you. Can you even remember the last time you actually saw your coworkers in person?

I’m sure you’re exhausted and frustrated and tired of 2020. And given that it’s almost November, it might be tempting to check out for the remainder of 2020, and hope that 2021 holds better things.

But wait!

You can’t check out. There is SO MUCH going on in the federal civil service, from changes that have gone into effect in the last few weeks, to changes that will be implemented within the next several, and your agency cannot afford to miss them.

One of the biggest happenings is the issuance of OPM’s regulations modifying 5 CFR Parts 315, 432 and 752, which go into effect November 15. These 199 pages are packed full of information, some of it surprising and some of it unsurprising yet still significant. I’ll provide an overview of the biggest takeaways during a webinar on November 12, but today I wanted to share a portion that directly speaks to one of the most hotly-contested topics in the history of FELTG training: Who should do the Douglas factors assessment — the Proposing Official (PO) or the Deciding Official (DO)?

Take a look at the below addition to 5 CFR Part 752, which previously only had subparts (a) and (b):

§ 752.403 Standard for action and penalty determination.

(c) …The penalty for an instance of misconduct should be tailored to the facts and circumstances… Within the agency, a proposed penalty is in the sole and exclusive discretion of a proposing official, and a penalty decision is in the sole and exclusive discretion of the deciding official.

To some of you, that may seem like it’s nothing new. However, if you look at the discussion under 752.202, which also applies here, the emphasis is on an individual determination and assessment of each distinct case of employee misconduct. The discussion says, “there is no substitute for managers thinking independently and carefully about each incident as it arises, and, as appropriate, proposing or deciding the best penalty to fit the circumstance.” Subpart (d) also says that a minor indiscretion for one supervisor based on a particular set of facts can amount to a more serious offense under a different supervisor.

So, how does this answer the question about Douglas? Well, taken along with the context provided, each case is unique, and who better knows about all the details relating to the misconduct and its effect on the agency than the Proposing Official? And what better way to tailor the penalty “to the facts and circumstances” than having the PO do a full Douglas penalty analysis? We’ve been saying it for 20 years at FELTG, and we’ll be saying it for the next 20 years.

This language also speaks to advisors who might disagree with the PO’s proposed penalty or the DO’s ultimate decision, and might try to change their minds. The regulation clearly states the penalty is entirely up to the PO and DO. As advisors we may advise on an acceptable range of options, but that document is going to be signed by the person taking responsibility so it needs to match their analysis.

Stay tuned in the coming weeks as we discuss more takeaways from the regulations. Feel free to email Ask FELTG (info@feltg.com) if you have any questions. In the meantime, take care. Hopkins@FELTG.com

And Now a Word With … Dr. Anthony Marchese, on Performance

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By Dan Gephart, October 6, 2020

Gourds, pumpkin spice, a slight nip in the air, falling leaves. It’s all a reminder for many supervisors that it’s time to start working on those end-of-the-year performance reviews. Many federal employees will be getting feedback on their performance for the first time since their last review. And that, FELTG Nation, is inexcusable.

Whether it’s anxiety, frustration, or confusion, you cannot afford to avoid regular, honest performance-related discussions with your employees any longer. Providing feedback effectively is a skill — one that every supervisor can and should develop.

FELTG Instructor Dr. Anthony MarcheseFELTG Instructor Anthony Marchese will present The Performance Equation: Providing Feedback That Makes a Difference on October 28 from 12:30 – 4 pm ET. I caught up with Tony, who besides teaching for FELTG is a consultant, author and former academic dean, to talk about performance feedback.

DG: Why is feedback so important?

AM: Feedback is essential for growth. It is embedded in some of our earliest experiences. It helps provide a map of meaning to help direc

t us toward desirable behavior. In other words, it helps us to understand where we are in relationship to where we could or should be. It helps reinforce positive behavior and offers insights into where we may need to adjust behavior that is incongruous with expectations.

DG: Does it always have to be formal?

AM: Definitely not! However, before we discuss delivery methods, we need to ensure that it is happening. In a recent study, Gallup reported that 50 percent of surveyed employees (from a variety of sectors) did not know what their managers expected of them on a daily basis. Forty-seven percent of respondents indicated that they receive feedback only a few times a year or less. If an employee consistently possesses that level of uncertainty further reinforced by an absence of performance conversations, it is unlikely that they will receive a positive performance review. It is a near impossibility that they will exceed expectations. Consider how the current pandemic may have further exacerbated ambiguity, uncertainty, and the frequency of performance conversations. We must do better.

DG: Speaking of the pandemic, a majority of federal employees are working from home now. What are some pitfalls for supervisors to avoid when providing feedback remotely?

AM: Try to avoid negative surprises. Let your employee know in advance what you’d like to discuss. Provide specific, self-introspective questions to help them prepare for the conversation by carefully considering their performance and be ready to discuss what to continue, discontinue, and how to do it. Also:

  • Try to avoid using a virtual feedback conversation to test out a new, unfamiliar technology. Video is always better. Make sure that you and your employee know how to use it. Remember, nonverbal cues are incredibly important and can be easily
  • missed when not meeting face-to-face or using video. Let them see you. Be sure to see them.
  • Try to make the feedback session an active, brainstorming experience. Rather than spending the time “telling,” consider a structure that encourages equal participation, reflection, and problem-solving. This energy helps mitigate the Zoom fatigue plaguing so many right now and also positions the supervisor as a collaborative partner in helping your employee be at their best.

DG: How do you provide feedback to essential workers who are so busy they don’t have time for a feedback session?

AM: If a supervisor is too busy to provide feedback, he or she is too busy to be a supervisor.

More than ever, it is important that each employee feels connected to her or his supervisor. In a world filled with uncertainty, anxiety, and exhaustion, supervisors who choose not to take the time to provide feedback perpetuate an already difficult situation.

Feedback can come in many forms. It is not limited to a 60-minute, sit-down session in an office. It can occur during a weekly one-on-one. It can occur via e-mail following a deliverable. It can be offered by colleagues (a 360 perspective is important). Right now is a great time to rethink how we provide feedback. For example, rather than a supervisor leading a session during which they “tell” their employee how they did, they may want to consider positioning the meeting as an inquiry opportunity. This helps promote individual ownership for performance. Supervisors should be curious. Ask questions of their employees like: How did you think the planning session went? What worked well? What would you change? Here is what I observed. What can we do together next time to ensure whatever a successful outcome would be?

Since most work-related communication has been interrupted/impacted by the pandemic, supervisors may want to reconsider how they leverage their one-on-ones, team meetings, and emails.

DG: What is the one thing every supervisor could do immediately to improve feedback?

AM: The most important thing is simply to do it. Don’t contribute to the 50 percent of employees who are unclear about what they should be doing. Here are a few other ideas to consider:

  • Conduct a self-assessment. Ask yourself: Do my employees know what I expect of them? How am I so sure?
  • Conduct a team assessment: Ask your employees (individually): Do you feel like you have what you need from me to perform your job well? What can I do/provide to ensure that you have what you need? What should I do more of/less of?
  • Performance feedback needs to consider both the “what” and the “how”. Many supervisors assume that once they provide feedback (especially constructive), their employees will know precisely how to change. This is often a false assumption. When providing feedback, discuss with your employee a strategy (with identified goals, resources, timelines, and accountability) to help support their efforts.

If you’d like to bring Dr. Marchese to your agency for training on feedback, communication or any leadership-related topic, email Gephart@FELTG.com.