The Seven Deadly Sins Employment Law Practitioners Commit

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By Deborah Hopkins, April 23, 2019

One thing I don’t understand is why people make their jobs (and as a result, their lives) more difficult than necessary. Aren’t the challenges that are out of our control already causing enough problems?

In my adventures traveling the country conducting federal employment law training, I’ve come across some suggestions that employment law practitioners offer as advice, that make things far more difficult than necessary for all parties involved. Not all advisors commit these sins; many do not. But in order to make the list, the Deadly Sin has to have been seen in multiple agencies, multiple times over the past year.

Here they are, with my bulleted responses following each:

  1. Inaccuracy. Advisors in L/ER or OGC tell supervisors they need a three- to six-month record of poor performance before they can put an employee on a PIP/ODAP/DP, or whatever the agency calls the period where the employee is given an opportunity to demonstrate acceptable performance.
  • That’s just wrong, and it’s bad advice. As soon as a supervisor can articulate why the employee’s performance is unacceptable, she can put the employee on a demonstration period, as long as the employee has been on her performance standards for a warm-up period of 60 days or so. The only thing that matters in a performance-based removal is what happens during the demonstration period. As long as the reason why the performance action was initiated was not illegal (e.g., based on race or sex or whistleblower status) and the performance is unacceptable now, the employee’s performance before that articulation of unacceptable performance has no bearing.
  1. Imprudence. There are some jobs that are so high-level, an employee needs more than 30 days to demonstrate acceptable performance; therefore, the demonstration period should be at least 60-90 days.
  • No can do. The MSPB has never found a 30-day demonstration period to be too short, regardless of an appellant’s job level or type. Even if the employee’s typical work cycle takes months or even years, there must be some amount of work the supervisor expects to be done within the next month or so. Break the projects down into smaller steps and you’ll find you have a nice 30-day demonstration period. If my suggestion isn’t enough, you may want to note that several agency policies, and even the President in Executive Order 13839, now say that 30-day demonstration period is sufficient. Unless you have a union contract that says you have to provide more than 30 days, you don’t. And you shouldn’t.
  1. Waste. If an employee fails the PIP/ODAP/DP before the end date, the agency should let the employee finish out the 30-day demonstration period anyway.
  • This makes no sense – and could actually cause a lot of harm. Picture this: a TSA security screener who is on a demonstration period, lets a bunch of cocaine and guns get on an airplane in the first couple of weeks of the demonstration period, and you’re going to let that screener continue working for the next several days? If so, I guess you think letting drugs and loaded weapons onto a plane are no big deal. Or what about the nurse who is putting patients’ lives in danger – you’re really going to let him continue to provide poor care after he shows you he cannot do the job acceptably? The same principle applies across the board, no matter the job or what the employee’s critical element is called.

It is a waste of time, taxpayer money, and supervisory resources to allow someone who fails an opportunity period before the end date to finish it out, and there is legal authority that says you can end it early due to error rate. See, e.g., Luscri v. Army, 39 MSPR 482 (1989). The primary issue the MSPB will look at is whether the employee was given an opportunity to demonstrate acceptable performance. We know from the case law that even 17 days is enough time for an employee to demonstrate whether he can do the job acceptably. Bare v. HHS, 30 MSPR 684 (1986). The only time you have to allow the full length of the demonstration period to run is if it is required by your collective bargaining agreement.

  1. Fallacy. If the supervisor saw an employee engage in misconduct, he can’t discipline the employee unless there is additional evidence to support the charge.
  • The standard of proof for misconduct is preponderance of the evidence – or substantial evidence if the employee is covered by the new VA law. If a supervisor saw the employee violate a workplace rule, that’s a preponderance of the evidence. 5 CFR 1201.56(c); 5 CFR 1201.4(q). If you have witnesses and video logs, that’s great – but if you don’t then you still have enough evidence. The only exception is if the employee is a whistleblower; in that case you’ll need clear and convincing evidence, so those extra witnesses and videos will come in handy.
  1. Risk. Don’t use Notice Leave except in extreme circumstances where you have determined an employee is a threat to safety.
  • Notice Leave is a paid leave status, created by the Administrative Leave Act of 2016, that allows the agency to send the employee home with no duties after a removal is proposed, for the duration of the 30-day notice period. In order to use Notice Leave the agency simply needs to document why retaining the employee at work jeopardizes a legitimate government interest, that reassignment is not appropriate, and inform the employee in the proposal that she will be placed in this pay status.

Why wouldn’t you use Notice Leave it every time you propose a removal? Congress created this category of leave exclusively for this situation. An employee whose removal is proposed will not do anything constructive during the notice period – and may even cause severe problems in the workplace. Don’t believe me? Come to our Emerging Issues Week class this July where we talk about people becoming violent in the workplace after proposed removals; even though there may be warning signs, you can’t always predict it. Plus, some people become violent with NO warning at all. Don’t gamble with your life or your agency resources. Use the gift called Notice Leave every time, and you won’t have to wonder who will become dangerous in the workplace after you’ve proposed their removal.

  1. Apathy. It’s too much work to go through with a misconduct or performance action, and the agency will probably just settle the case anyway, so supervisors should ignore conduct and performance issues unless they are especially harmful or egregious.
  • I cringe every time I hear something like this. This is completely disempowering to supervisors and just plain wrong. If a supervisor wants to take an action, the role of an advisor is to make the supervisor aware of the options and to point out potential legal issues – not to tell the supervisor to forget it. If a supervisor has reason to hold someone accountable, then we should support that supervisor.
  1. Avoidance. If an employee has EEO activity pending, the supervisor must hold off on any discipline until the complaint is resolved.
  • If I had a dollar for every time I heard this, I could have retired years ago. This statement is completely incorrect. EEO activity is not a shield for employees, though in reality it has become one in many agencies. Supervisors can discipline employees who happen to have EEO complaints pending, as long as the discipline is not motivated by, or because of, the person’s EEO activity. And here’s another note: It often takes between 3-5 years for an EEO complaint to be resolved, so you definitely shouldn’t wait to hold employees accountable.

I hope practitioners can understand why these pieces of advice are so detrimental to supervisors, and impact the efficiency of the government workplace. If there are other deadly sins you’ve heard about, feel free to share them and they may show up in a future article. In the meantime let’s all work together to make the federal government a better place to be employed. Hopkins@FELTG.com

And Now a Word From … Mika Cross

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By Dan Gephart, April 16, 2019

Spurred on by the executive orders issued last year by President Trump, Health and Human Services resumed a once-stalled collective bargaining process with the National Treasury Employees Union. Those negotiations reached an impasse that resulted earlier this month in a Federal Service Impasses Panel ruling that could lead to HHS significantly rolling back its telework program, as well as policies on official time, office space, and leave.

For Labor Relations practitioners, this FSIP decision is a reminder of the power last May’s EOs has given them in the collective bargaining process. (Be sure to catch former FSIP Executive Director Joe Schimansky’s Significant Cases and Developments at the FLRA webinar on June 18).

For federal work/life experts, the FSIP’s decision created concern, but for a different reason. One of those alarmed work/life experts is Mika J. Cross, Federal Workplace Expert and VP of Employer Engagement and Strategic Initiatives at FlexJobs. Cross is worried not only about the impact of FSIP’s ruling on the nearly 20 percent of HHS employees who currently telework, but also on the government’s overall ability to recruit qualified young employees.

“Coming from a long career in public service, I know how very hard it is to even be able to attract the right candidates for open vacancies in government, let alone fill them in a timely and efficient manner,” Cross said. “The government at large already has a branding issue and coming off the heels of the latest shutdown, that’s not going to make the nation’s largest employer look any more appealing as a best place to work, especially for those younger workers getting ready to graduate this spring who are looking for the first step in their career.

“A cart blanche approach to restricting flexibility also restricts empowering first line managers and supervisors from making the best decisions for their workers,” Cross continued. “And studies show, year after year, the impact that work flexibility and remote work can have on productivity and performance. At this point, a move like this is laughable.”

If you’ve worked in the Federal government for even a little while, you know Mika Cross. The U.S. Army veteran and “Public Service Passionista” keeps very busy spreading the positive message of Workplace Transformation. You have likely watched her on Government Matters or seen her speak at a conference, or you may be one of her numerous followers on LinkedIn and Twitter (@Mika_Cross).

The most recent Federal Employee Viewpoint Survey (FEVS) offered some stark numbers about federal managers. Two examples: Only 28 percent of non-supervisory employees believe that steps are taken to deal with poor performers, and more than a third of employees believe that differences in work performance are not recognized in meaningful way. This seemed like a good place to start our conversation.

DG: What is the main message supervisors should learn from the most recent FEVS? 

MC: There is a very strong correlation between overall engagement and an employee’s propensity to stay in government. Those who indicated they intended to stay, are generally more engaged than their colleagues who aren’t. This will matter deeply in the coming year, especially when 27 percent of employees who took the FEVS, revealed they were planning to take another job (either within or outside of the Federal government) and 25 percent want to retire within the next five years.

OPM processed nearly 12,000 more federal retirements in 2018 compared to 2017, a five-year high, according to a Federal News Network analysis. If this continues to trend upwards, agencies could be faced with even more of a significant hurdle in mission operations.

DG:  What can front-line and second-line supervisors do to make their workplace more engaging and productive?

MC: Focus on organizational citizenship behaviors, meaning inspire, encourage, motivate and reward employees for their discretionary behavior and positive activities that help contribute to the overall welfare of the organization, and that go well beyond simple job duties and work requirements. Overall, supervisors can directly impact employee dedication, sense of purpose and their attachment to their mission and the organization.

DG: How do they do this? 

MC: Have a conversation, invite them to an interactive dialogue and check in regularly to learn how you can support your team’s personal and professional goals. Listening and responding to how Federal employees feel about their role within their organizations, and the work they do serving the American people, is something you can check in with them regularly about. No need to wait for the next FEVS cycle. You can:

  • Reinforce and explain the linkages between individual employee actions, workload, projects and activities to the organizational and business unit vision.
  • Re-design work to encourage more autonomy, creativity and innovation.
  • Enforce effective performance management practices that focus on early course correction, learning, growing and always strive to be supportive, not dismissive, or overly critical.
  • Offer and encourage using all the supportive employee and workplace resources that are available, such as onsite wellness programs, flexible work schedules, telework programs, employee advocacy and community affinity groups, financial literacy, continuing education and other workplace activities that help make your agency a better place to work, for all.
  • Encourage frequent and open communication with employees; model and reward appropriate co-worker relationships.

DG: How important is it that federal supervisors hold employees accountable and why?

MC: Although the five-year trend for FEVS responses, in general, indicates an uptick and continues to move in a positive direction, it’s clear that employee perception of performance management practices needs continued focus and attention. Some of the lowest scores came from questions dealing with the relationship between performance and rewards. If employees do not feel valued or acknowledged for a job well done, how do we imagine they will continue to feel dedicated and vested in the work they do every day?

Reinforce good behavior, ask your employees about the kinds of incentives that would be most meaningful to them, as they demonstrate quality and impactful work. You may be surprised to hear that an incentive for one employee may be a time off award, or ability to take a training course or attend a networking event during duty hours, rather than a monetary bonus; or additional flexibility in their work schedule or permission to telework more frequently; for others, taking on a new assignment or gaining permission to work on a project outside of their normal position description, may be a wonderful way to incentivize a job-well-done and inspire more creativity and innovation.

Gephart@FELTG.com

How Far Back in Time Can I Go to Discipline an Employee?

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By Deborah Hopkins, March 26, 2019

Recently, we received a question from a reader about how far back in time an agency can go when it wants to discipline an employee.

We have a [hypothetical] case where we recently uncovered dozens of harassing comments (sexual) from an employee, spanning many years. How many years back can I reference specific examples in his proposed removal notice? The charge will be Conduct unbecoming a federal employee.

And here’s the FELTG response.

Thanks for the question. If you look at 5 USC § 7513 you’ll notice that in cases of adverse actions for misconduct there are no time limits for how far back an agency is allowed to reach, nor is there a requirement that an action be proposed within a particular time period. (Conversely, the law in performance cases under 5 USC § 4303 limits agencies to proposing removals for poor performance occurring during the one-year period prior to the proposal date.)

Because the law is silent on timeline, we have to look to the cases to see how the MSPB has viewed this issue. Excessive delays, especially those without explanation, can hurt the agency’s ability to successfully defend a disciplinary case and may result in the discipline being overturned. The longer an agency takes, the less convincing its stance that discipline was warranted. See Baldwin v. VA, 2008 MSPB 169 (if an agency’s delay in charging discipline is unreasonable, the charges may be dismissed). In these cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm. Brown v. Treasury, 61 MSPR 484 (April 7, 1994). The Board will also consider whether the delay indicates an improper motivation to discipline the employee, such as reprisal for EEO or whistleblower activity. Id.

Sometimes agencies have good reason for delaying disciplinary action. The more detailed the explanation, the better for the agency; the discipline may be upheld even if a large amount of time has passed. The reasons for delay the Board has accepted (though not condoned) include management official waiting on receipt of an investigation report, and office restructuring and turnover that caused delays in all workplace actions. Cates v. USDA, 24 MSPR 468 (Nov. 20, 1984), aff’d, 776 F.2d 1065 (Fed. Cir. 1985). If criminal charges have been filed against an employee, this may also justify the agency choosing not to charge the conduct for some time. See Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009) (an eight-month delay after learning of the misconduct, which had occurred six years earlier, did not prevent the agency from disciplining the employee).

Not finding out about the conduct until recently is a darn good reason for not disciplining the employee until now; the key is not to wait too long, now that you know what happened.

An employee’s primary defense in one of these cases is an affirmative defense called laches. A party claiming laches must establish two elements: 1) the agency’s unreasonable delay in bringing a personnel action, and 2) resulting prejudice to the appellant. See Carr v. SSA, 185 F.3d 1318, (Fed. Cir. 1999). Prejudice to the appellant is shown if the appellant encounters increased and prejudicial difficulty in mounting a defense due to the delay, such as the loss of records, destruction of evidence, fading memories, and the unavailability of witnesses. Hoover v. Navy, 957 F.2d 861 (Fed. Cir. 1992).

While an employee may assert laches, you’ll want to look for evidence the employee actually remembers the misconduct which you’re charging. In Williams the appellant actually stipulated to the charge, which turned the light green for the agency to proceed with discipline. In Baldwin, the employee asserted he did not remember the conduct at issue, but other evidence including witness statements, indicated he did in fact know what the agency was talking about, and the Board said his assertions were “not…nonfrivilous.”

One other thing, on the “Conduct unbecoming a federal employee” charge: well done. It’s tempting in cases of egregious and harassing behavior, to charge an employee with Sexual Harassment. But that can be tough, because the bar to prove sexual harassment is quite high –  and if you don’t prove all the elements of sexual harassment, your discipline cannot stand even if you have 15 sworn witness statements, documentary evidence, a video of the harassing conduct, and a confession by the harasser.

At FELTG, we’d suggest using the charge listing out all the harassing behavior as specifications rather than running them all together in a list as part of the generic charge. It would look like this.

Charge: “Conduct unbecoming a federal employee”

Specification A: On February 5, 2019, you referred to Coworker X as “a hot piece of ass.”

Specification B: On November 16, 2018, you slapped Coworker X on the rear end in the break room at lunchtime and said, “I want some of this.”

Specification C: On October 1, 2018, you told Coworker Y that you wanted to get Coworker X alone in the stairwell and have your “way with her once and for all.”

Specification D: On August 5, 2018, you told Coworker X if she did not have sex with you, you would tell the Agency Director she was conducting personal business on government time.

Be specific. Use dates, times, the employee’s actual words, and his actions – even if it’s uncomfortable to see it in writing. Go back as far as you need to, without overdoing it. Resist the urge to “spank” the employee, as Bill Wiley puts it, by listing every single bad thing he has ever done. Instead, either focus on the most recent or most egregious incidents and list those. If you lose a couple of specifications, no problem, but if you list 20 and only two stand, the Board may decide to mitigate your penalty. If you list two and both stand, the Board doesn’t have the authority to mitigate unless your penalty was unreasonable. See, e.g., Payne v. USPS, 72 MSPR 646 (1996).

As we say at the end of each training day, good luck out there. Hopkins@FELTG.com

 

And Now a Word From … Susan Tsui Grundmann

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March 19, 2019

When former Merit Systems Protection Board Chair Susan Tsui Grundmann started her new job as Executive Director of the Office of Compliance, quite a few people didn’t know what the OOC was, or what it did.

That soon changed.

Grundmann barely had enough time to learn the best spot for coffee near the Capitol before the OOC found itself in the spotlight. The #MeToo Movement had broken out, and Congress was not immune to claims of sexual harassment. The OOC, which operates with a staff of attorneys and other professionals to ensure a fair, safe, and accessible workplace for 30,000 legislative branch employees, was suddenly very busy – and getting a lot of attention.

“During a five-month period, our tiny staff had been tested, weighed and found not to be lacking,” Grundmann said. “Since October 2017, our staff personally trained over 1,500 employees in the House and Senate alone, not all at once, but in ones, twos, and tens.”

And it’s no longer the Office of Compliance. The agency has since rebranded itself as the Office of Congressional Workplace Rights. Along with the new name, the OCWR received new mission and vision statements after the Congressional Accountability Act Reform Act was passed late last year and goes into effect in June. Per Grundmann, it “serves as the EEOC and the FLRA for the legislative branch. We also perform certain functions of the Department of Labor and the Department of Justice for the legislative community.”

Here’s more from our interview.

DG: New name, new mission and new vision statement. How else has the office changed?

SG: Our jurisdiction has been expanded to cover new employing offices, like certain congressional commissions, and additional categories of employees, such as unpaid staff, including interns, fellows, and detailees. Our ADR process no longer includes mandatory counseling, a mandatory “cooling off” period before the employee can proceed either to an ADR hearing or court, and mandatory mediation, although mediation remains optional if both parties agree. We have a new step in the ADR process, which involves preliminary review by a hearing officer within 30 days after a claim is filed.

All employing offices have new posting and training requirements. For the first time ever, we will conduct a climate survey of the entire legislative branch with specific focus on respondents’ attitudes toward sexual harassment. We also have new reporting requirements. Perhaps what has captured the greatest media attention is that Members of Congress and employing offices must reimburse the treasury account for certain types of awards and settlements.

DG: So what hasn’t changed?

SG: The Reform Act maintains the OCWR’s essential functions and preserves our statutory mandates, which include statutory directive to provide an ADR process for legislative branch employees; to enforce the Occupational Safety and Health Act, Americans with Disabilities Act with regard to public accessibility, and the Federal Services Labor-Management Relations Act; to provide recommendations to Congress regarding changes to the CAA; and to educate and inform the legislative community and the public regarding the CAA and the Reform Act. Perhaps most importantly, the Reform Act maintains the impartial, non-partisan nature of our Office.

DG: How are you able to handle all the added responsibilities with such a small staff?

SG: While we have been allotted additional FTE and funding, we have a great team at OCWR.  We have identified statutory changes which require action and have in-house teams with timelines and deadlines, the most significant of which is to amend our current rules to reflect changes mandated in the Reform Act, such as adding the new step of the preliminary review by a hearing officer in the first 30 days.  We even have a single individual whose primary task is to keep track of every team, note every benchmark, and to ensure that we adhere to every deadline.  The limited timeframe is a challenge yet it is an exciting time for us as we have been given the rare opportunity to create a new structure and process.  We are looking forward to meeting this challenge.

DG: You were charged with providing widespread training on harassment to Congress. Through this process, did you have any revelations on harassment training?

SG: We saw a triple-digit percent increase in the number of requests for in-person anti-sexual harassment training; a triple-digit percent spike in the number of staffers enrolling in our online training modules; twice as many visits to the OCWR’s online information about how to report sexual harassment; a 12 percent surge in the number of people subscribing to OCWR social media platforms to receive updates on rights and responsibilities designed to protect workers against sexual harassment. And posters notifying employees of their rights under the CAA, which were, at the time, non-mandatory in the legislative branch, flying off our shelf.

DG: What do you think agencies in the Executive branch could or should do differently to get a handle on widespread harassment?  

SG: Training is only the floor. But running the same training over and over again cannot change culture. To remain relevant and fresh, training must be continually revised and tailored to the specific environment of each workplace. We have found that in-person training works the best, especially if we work directly with the employing office and develop scenarios that commonly occur in a particular office. 

There are other steps employers could take: Develop a zero-tolerance policy prohibiting discrimination, harassment, and retaliation that employees know and understand. That policy should describe procedures for reporting such behavior and designate a particular individual, and an alternative in the event the designee is the accused, who is charged with receiving complaints and providing a timely investigation of the allegations. Even if the allegations prove unfounded, the designee should contact the employee so that the employee will know that the claims were taken seriously and not brushed aside. If the allegations have merit, the accused must be given due process and held accountable. In the end, cultural change comes from the top, from both executive and senior leadership, and from management, who adopt and implement the organizational mission and vision.

DG: Hopefully, we’ll have a quorum soon at the MSPB. Do you have any advice for new MSPB members?

SG: Not having a quorum for over two years has done substantial damage to the MSPB’s ability to reach resolution and closure. Almost 2,000 PFRs await resolution. That number is certain to grow. In some cases, justice delayed can be viewed as justice denied. You have seen these stories in the media.

My advice to new members is to trust your instincts but be guided by the exemplary career staff at MSPB. There are many, many talented employees who have dedicated their careers to protecting and advancing the merit principles. Many have seen it all and know what works and doesn’t work in the long run. Be inclusive when it comes informational gathering, including external stakeholders. To the extent possible, be inclusive of decision-making so that there is a shared ownership of choices made. It is a great agency filled with those who model the merit principles in their ever day life. I wish the new Board members the best as they embark on this venture. They will garner great experience and satisfaction from their time with the agency.

Too Many Goose Eggs at MSPB

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By Deborah Hopkins, March 5, 2019

I’m sure by now you have heard that for the first time in its history, we have zero Members at the Merit Systems Protection Board. Acting Chairman Mark Robbins’ term expired March 1, leaving the front office at 1615 M Street NW completely dark.

On his last day at MSPB, Robbins released MSPB’s Annual Report for FY 2018. So while we don’t have a Board (and who knows how long that will last since nobody with decision-making authority on Capitol Hill seems worried about it), we do have some new information to share.

Let’s take a look at some of the impressive numbers out by MSPB last year:

Are you seeing a trend here? That’s a whole lot of goose eggs. (And yes, the term “impressive numbers” above was meant to be sarcastic.) Without a quorum, a huge chunk of the Board’s work cannot get done. In a normal year, those subtotals are usually upwards of 1,000, including approximately 800 Petitions for Review.

I share these numbers not to slam Robbins or any of the dedicated employees at MSPB, because none of this is their fault. In fact, we know they have worked hard every day, despite the lack of quorum. The responsibility for this lack of performance falls directly on the Administration and the Congress, which for over two years have refused to put Board Members in place. This inaction has left the MSPB with over 2,000 cases, sitting in a hallway in cardboard boxes, waiting to be adjudicated. To add insult to injury, all of Robbins’ work on those 2,000 cases became obsolete last week and cannot be used by future Board members.

If I come across as upset, it’s because I am. If you’re tired of reading about this, then maybe you shouldn’t finish this article because I have more. There is NO REASON things at MSPB have to be this way. And yet it’s continued, for 786 days. I have contacted everyone I know – and don’t know – on the Hill and in the White House to try to get the message across that while maybe this doesn’t play on TV as well as national security issues, hot-button committee hearings, or North Korean summits, real people are hurting every day, more people get hurt every day, and the fix is SO EASY. Others have joined in this plea, even testifying before congressional committees and pleading with Congress and the White House to do something. And nothing has changed.

This is one of those rare areas where the inaction hurts both sides involved – the agency and the employee. There now are up to 2,000 people waiting for years to find out if they will get their jobs back. There are agencies on the hook for potential back pay in these cases. I’m not a math scholar but I know that three years (and counting) of back pay for a GS-14 in Washington, DC, plus attorney fees, can easily exceed half a million dollars. And that’s just one case out of 2,000.

But all is not lost. There is some light in all this darkness. As of right now the MSPB is still open and operating, aside from the front office. MSPB’s General Counsel, Tristan Leavitt, is now the Acting Chief Executive and Administrative Officer, so fortunately the career staff in the headquarters, regional offices, and field offices are still at work.

Let’s look at some more numbers from the report that aren’t 0s. In FY 2018, the Administrative Judges issued initial decisions (IDs) on 5,134 appeals. Here are a few significant numbers from within these IDs:

2,267: IDs on disciplinary actions

142:     IDs on performance-based actions

416:     IDs on probationary removals

517:     IDs on Individual Right of Action (IRA) appeals [usually whistleblower reprisal appeals]

325:     IDs on USERRA and VEOA appeals

1,058:  Cases settled before hearing

83.2:    Percentage of agency actions upheld

14:       Percentage of agency actions overturned or requiring corrective action

3,077:  Cases dismissed

The agency with the most cases adjudicated was the VA (1,080), and the agency with the fewest cases adjudicated (excluding those that have no appeals pending) was actually a 13-way tie at one appeal each. You can read the full report to see which agencies those were.

At FELTG, we’ll keep you posted on what’s next. And if you want to hear us rant about these injustices in person – while also teaching the law – join us at an upcoming MSPB Law Week in Washington, DC or Dallas, TX. Hopkins@FELTG.com

 

 

Why the Discipline Process Matters More Than Ever

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By Deborah Hopkins, February 19, 2019

If you’ve been in the federal employment law arena for more than five minutes, or if you’ve read this newsletter in the recent past, you know that we (the People) have been without a quorum at MSPB for more than two years now. In fact, next Friday marks the end of Mark Robbins’ tenure as the sole remaining Board member, at which time the MSPB will have ZERO members for the first time in its 40-year history.

Last week, the Senate Committee on Homeland Security and Governmental Affairs voted to advance two MSPB nominees (Dennis Dean Kirk and Julia Akins Clark) to the full Senate for a confirmation vote – but the vote won’t be held until a third nominee is named (the remaining nominee Andrew Maunz withdrew his name last week), and clears committee to join them for a Senate vote. In case you didn’t know this: It’s not a legal requirement to confirm all the members together. However, the Committee Chairman, Senator Ron Johnson (R-WI) indicated that would be the process used. (Read the full detail of the committee meeting here.)

So, what will happen next? It’s anybody’s guess. Will the MSPB have to shut down until they get some leadership — or will the General Counsel run the place in the interim? Arguments can be made for either option.

As of today, the Administrative Judges are still holding hearings and issuing decisions on agency removal actions, and your cases still need to be as tight as ever to ensure a favorable outcome. Because if anything is appealed from a judge’s decision, it goes into a stack of 2,000+ cases that are sitting in boxes in the hallways, waiting for Board members to read them and issue opinions. Wouldn’t you rather NOT have to appeal a judge’s decision? Me too.

So what’s the best way to have a judge agree with your choice of discipline? Follow the law. In order to discipline a federal employee for misconduct, there are five legally required elements:

  1. A reasonable rule exists
  2. The employee knew the rule
  3. A preponderance of the evidence (more likely than not) that the employee broke the rule
  4. Choose a defensible penalty
  5. Provide due process

If you miss even one element, you lose your entire case. Let’s look the elements in turn and see how easy they are to check off — and how easy they are to screw up, if you’re not paying attention.

1. A reasonable rule exists. You cannot discipline an employee for breaking a rule that does not exist. The very definition of misconduct is a violation of a rule. So, if you want to reprimand, suspend, or remove someone, you can only do it if they have indeed broken a rule. Also note: the rule must be related to the job; you cannot enforce rules that have nothing to do with the workplace. For example, you can set a rule that an employee to always fill up a GOV’s gas tank when it gets below ¼ tank, but you cannot require that rule for the employee when driving his personal vehicle.

Case example: Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009)

2. The employee knew the rule. An agency cannot enforce secret rules against employees – that would violate the fairness federal employees are guaranteed. If you have a rule that employees wear closed-toed shoes in the office but you’ve never bothered to tell them the rule, you cannot discipline them for wearing open-toed shoes. There are some “commonsense” rules where notice is a given (for example, you don’t need a rule that says employees are not permitted to have a campfire in the breakroom), but when in doubt, TELL the employee the rule. Don’t assume the employee knows it.

Case example for further reading: Tudor v. Treasury, 639 F.3d 1362 (Fed. Cir. 2011)

3. A preponderance of the evidence (more likely than not) that the employee broke the rule – unless you’re at the VA in which case you only have a substantial evidence requirement, that the employee might have broken the rule. Preponderant evidence is not a huge burden, but you do have to have some evidence. Whether you saw the misconduct happen, or witnesses saw it, or you have video evidence or a confession, you need something to show the employee broke the rule. This should not be difficult. The employee has a lunch break from 12-12:30 and you, the supervisor, see the employee come back to his desk with a Chipotle bag at 1:10 – that’s evidence. Don’t make this more difficult than it needs to be. But please have evidence.

Case example: Mott v. DVA, No. 2017-1222 (Fed. Cir. 2018)

4. Choose a defensible penalty. Unless you’re at the VA, you have to justify why you selected the penalty (suspension or removal) you did. This is done by looking at the Douglasfactors and explaining the effect of the misconduct. We consider things such as the harm caused or the potential for harm, the person’s job level and type, any notoriety or publicity, any past discipline the employee has received, what we’ve done with comparators who have engaged in the same type of misconduct, and a number of other factors. The penalty must be appropriate for the level or instance of misconduct the employee engaged in. You may not be able to justify a first-offense removal for a person who got to work five minutes late to a job where being on time doesn’t matter because there was no harm. However, if your employee is an ER surgeon and someone died in those five minutes, you have a completely different scenario and removal might very well be justified. Let the Douglas factors be your guide, and keep in mind, the MSPB is only going to mitigate (change to something less) your penalty if it exceeds the bounds of reasonableness.

Case examples for further reading: Jacoby v. USPS, 85 MSPR 554 (2000); Webster v. Army, 911 F.2d 679 (Fed. Cir. 1990); Mott, supra

5. Provide due process. Federal employees who have successfully completed their probationary periods are entitled to due process in disciplinary situations. Due process has three steps:

  1. Notice of the charged misconduct and the proposed penalty (given by a Proposing Official);
  2. An opportunity to respond to the charges, and to be represented; and
  3. An impartial decision based on the information given in the notice and the response (given by a Deciding Official).

If you miss a step, you lose your case EVEN IF you have 50 witnesses and video evidence of the employee stealing the laptop, punching a customer, sleeping on the job, whatever. A due process violation, sometimes referred to as “losing on a technicality,” is literally a loser every single time. While there are cases where agencies don’t give the employee notice of the charges, or don’t notify the employee of her right to respond, we see most cases lost under the third prong — where the deciding official relies on some bit of information that the employee is not privy to. This is why it is crucial to work with your Deciding Officials on their proper role and encourage them not to go looking for extra information about the employee.

Case example for further reading: Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007).

I hope this helps. If you want more – and trust me, you definitely want more – then come to our MSPB Law Week in Washington, DC or Dallas, TX, so we can show you how to win your case in front of the judge, and quickly get back to the business of fulfilling your agency’s mission. Hopkins@FELTG.com

Two MSPB Nominees Voted Out of Committee, but Uncertainty Still Looms

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By Deborah Hopkins, February 13, 2019

Committee meeting room, pre-vote

Here’s a quick update from today’s business meeting for the Senate Committee on Homeland Security and Governmental Affairs, which held a scheduled vote on the nominees to the Merit Systems Protection Board (MSPB). I was there, and I am still saying “wow.”

Last night, the Senate was informed that Andrew Maunz, the nominee for Vice Chairman, had withdrawn his nomination for unspecified reasons. This morning, the committee, which is made up of 8 Republicans and 6 Democrats, considered the remaining nominees: Dennis Dean Kirk (R) for Chairman, and Julia Akins Clark (D) for Member. When Committee Chairman Ron Johnson (R – WI) opened the floor for discussion, the only person to speak was Sen. Rand Paul (R – KY).

And boy, did Sen. Paul have a lot to say. He voiced the opinion that the MSPB is failing as an agency, saying that it has become a job protector for federal employees instead of a protector of the merit system. Citing facts from a couple of unnamed cases, he claimed that the MSPB thinks child pornographers and VA leadership who allow veterans to die in the hallways belong as federal employees. He said this type of behavior from employees would never be tolerated in the private sector, and if the government can’t fire people for such egregious acts, then the MSPB should cease to exist and Congress should go back to the drawing board to create an oversight agency that actually works.

Here’s the problem: Sen. Paul (along with countless others) doesn’t understand the system. He didn’t give citations for the cases he mentioned, but I believe I know the cases to which he was referring. And in those cases, the MSPB didn’t put employees back to work because they necessarily wanted to; the MSPB was following the law. In the child pornography case, the agency failed to establish a nexus (a connection) between the employee’s off-duty conduct and his government job. The law requires a nexus to exist. (By the way, come to MSPB Law Week and we will show you how to find nexus in a case like that; the agency did not, but it was most likely doable.) The MSPB never said, “Child pornographers are good people and should be working for every federal agency.” The MSPB found that the agency failed to establish nexus, and nexus is required by law.

Regarding the VA cases Sen. Paul mentioned, I believe those cases dealt with senior leadership who were removed, and the Board members (who are no longer there) mitigated the penalties based on Board leadership’s at-the-time view on comparator employees, which has since been walked back in pieces.

Can someone please tell Sen. Paul – and the rest of America – that the system works IF the agency handles the case correctly? Citing the few cases where terrible employees got their jobs back because of procedural defects, while ignoring the 7,000+ removals that stuck in the last FY, does a disservice to the country. I had a hard time sitting still while he was speaking. I wanted to jump up and tell him that he had it all wrong, but I didn’t think it would be a wise move to get kicked out of a Senate Committee meeting.

I digress (for now).

On to the nominees. Both Kirk and Clark were voted out of committee. Everyone on the committee, Rebublicans and Democrats, voted “yes” to send them to the full Senate for a vote, except for Senator Paul.

But – don’t get your hopes up on a quorum just yet. After the “ayes” had it, Chairman Johnson said it’s typical that all nominees get voted on together in the full Senate, so now Kirk and Clark will be waiting for a third nominee to be named and voted out of committee before they can be confirmed.

Hold up just a minute, Mr. Chairman. The MSPB members intentionally have staggered terms and to my knowledge, in the 40-plus years since the Civil Service Reform Act created the current MSPB, we have NEVER had all three nominees confirmed together (except, maybe the very first time members were appointed). Occasionally two go together, yes – but not three.

Whether this is intentional or a misunderstanding about how this part of the system works, I don’t know. But are you ready for the real heartbreak?

If Kirk and Clark were to get confirmed by the full Senate before a third nominee is named, they could vote on dozens or (if they put in some really long hours) even hundreds of the 2,000 Petitions for Review (PFRs) Acting Chairman Mark Robbins has voted on, before his term expires on February 28.

But this is not going to happen. So, all of Mr. Robbins’ work on the PFRs since January 8, 2017, will go to waste, as the Committee chose NOT to vote on an amendment that would have allowed for the holdover term for a sitting Board Member to be extended beyond the one year currently permitted under 5 USC § 1202.

To recap: Robbins’ term expires February 28. Nominees Kirk and Clark won’t be confirmed until the full Senate votes. And the full senate won’t vote until a third nominee is named and the committee votes that person to the Senate floor as well. And we don’t have a third nominee yet. For what it’s worth, Chairman Johnson said he is working with the White House to come up with a nominee soon.

Also heard on the Hill this morning: As long as there’s not a shutdown this weekend, the Senate will be in recess next week. So, push the timeline for the vote back until the final week of February, at the very soonest, only if there’s a third person nominated and voted out of committee before then. If all that doesn’t happen before March 1, the Board may have to shut down entirely until the Senate votes on the nominees.

While this may be considered slight progress, it’s not the kind of progress the civil service needs. We’ll keep you posted on what happens next. Hopkins@FELTG.com

Three Best Practices for a Douglas Factors Analysis

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By William Wiley, February 6, 2019

Most members of FELTG Nation know that the Douglas Factors are the 12 employee-specific situational factors that agencies use to determine and defend a penalty selection in a misconduct removal appeal. Fail to evaluate the 12 factors the way that MSPB thinks they should be evaluated, and the Board will lower (mitigate) your removal to something less. When that happens, the employee gets her job back and you get sent to the dog house for not foreseeing how MSPB will consider the penalty.

When I was Chief Counsel to the MSPB Chairman, I reviewed thousands and thousands of Douglas Factor assessments. Without a scintilla of hesitation or doubt, I can assure you that the following three graduate-level principles will help you do a better job of defending your penalty section in a removal appeal:

1. Judges think in linear terms. Few people outside of MSPB know this, but when an individual is hired to be a Board administrative judge, that lawyer has to undergo a surgical procedure. In that procedure, 12 groves are made in the acolyte’s brain, one for each Douglas Factor. In assessing an appeal or listening to testimony at hearing, the judge likes to fill each grove with information about just that Douglas Factor, in the order that the factors are listed in the original Douglas decision. So, what does this mean for you as a practitioner?

  • Don’t go discussing the penalty factors in some sort of smashed-together paragraph.No matter how elegant and insightful your narrative discussion might be, you’re going to cause the judge to have to dissect what you’ve said and try to sort it all out into those little groves in his brain. You do not want the judge to have to do that. You do not want a judge to work any harder than necessary to understand the theory of your case and your evidence to support that theory.
  • Address all 12 factors, in order. Even if a factor carries no weight because there’s nothing there, note that the proposing official considered it and found nothing. A simple “Not Applicable” will do the trick. The mistake you are avoiding by doing this is a claim by the employee that you skipped a factor and didn’t even think about it, when the truth is that you thought about it and found it to be irrelevant.
  • Carefully segregate your factual description and limit your discussion of a factor to just that factor. For example, when discussing Factor One, Seriousness, don’t talk about how the misconduct is serious because the employee is a supervisor. You’ll be able to discuss the employee’s supervisory status in Factor Two, Job Level. You get negative points for repeating yourself in a Douglas analysis.

2. Some factors have subcomponents. Factors One, Two, and Four have evolved separate and somewhat distinct subcomponents over the years that the Board has been analyzing penalties. For example, Factor Four, Past Work Record, includes the subcomponents of a) Length of Service and b) Performance Rating. In fact, the Length of Service subcomponent has three subcomponents to it. Be sure to address all subcomponents or the Board will find fault in your analysis and perhaps substitute its penalty determination for yours. You don’t want MSPB doing that. Either come to one of our always-elucidating seminars (next offered in Washington, DC March 11-15) and we’ll teach you all the subcomponents or figure them out for yourself.

3. A Douglas Factor worksheet should be attached to the proposal notice. I’m not sure why this has been such a controversial matter for some agencies. On occasion, I’ve been confronted by more than one practitioner who argued passionately that the proposal notice should NOT contain a Douglas Factor analysis. I never really understood that argument because the Douglas decision itself says:

Moreover, aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors before the agency’s deciding official, and the decision notice should explain what weight was given to those factors in reaching the agency’s final decision. Douglas v. VA, 5 MSPR 280 (1981)
I guess you could split hairs and say that only aggravating, not mitigating, Douglas Factors have to be in the proposal notice. Well, do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. She should have the opportunity to know this stuff so she can respond and defend herself completely.

In addition, as we’ve taught here at FELTG for nearly 20 years, the Board holds agencies to different burdens of proof when a fact is asserted in the penalty analysis as compared to when a fact is asserted in the charge section of a proposal notice. By analyzing the penalty in a separate document, the Douglas Factor Worksheet, we make it exceedingly clear to the judge exactly what is going where, and thereby which of the two proof burdens he is supposed to use when evaluating our case.

In a recent case I was working with an agency legal counsel, during the prehearing conference the appellant began to argue to the judge that the selection of removal as the penalty was unfair. The judge cut her off right away by saying, “Madam, it is not my job to assess the fairness of the penalty. It is my job to assess whether your supervisors properly assessed all the factors relevant to penalty selection.” That judge understands how Douglas works, and so should you. Wiley@FELTG.com

And Now a Word With … Jeffrey Vargas on Workplace Generational Issues

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By Dan Gephart, January 29, 2019

Holding federal employees accountable is a big part of what we teach here at FELTG. Accountability is our goal. It’s in our mission statement. So I read with heightened interest recent stories about Millennials entering the management ranks. I wondered, rather hopefully, if Millennials were better than their colleagues from other generations at the important managerial task of accountability.

I reached out to Jeffrey Vargas, the president/CEO of Generationology LLC. If anybody has the pulse on the intergenerational workplace, it’s Jeff. And he knows the federal workplace, too. He was a recruiter, diversity manager and chief learning officer for several agencies before starting his own firm.

“Millennials are amazing, and so are folks from other generations,” Jeff said. “Millennials don’t have a special connection with workplace accountability, in fact, for many who have less than five years of government experience, they are still learning the tools and mechanisms that are available to Fed managers to ensure proper employee performance and conduct. What Millennials do have is a willingness and a greater comfort to try new things and push for more transparent individual and organizational accountability which in the end, can help speed up important fundamental organizational change.”

For this initial And Now a Word With column, I talked with Jeff about how multiple generations are re-shaping the federal workplace and how federal supervisors should be managing it.

DG: How has having multiple generations impacted the federal workplace?

JV: The concept of “how you get work done” has been redefined. Gen X was the first to push for more “work/life” balance, causing agencies to look at and implement initiatives like flextime. Millennials joined the push and have done a credible job of advancing the work/life conversation, pushing for more telework options. Boomers, as the ultimate group of collaborators, no longer universally believe that an employee is only productive at work if I “can see you at your desk.” Boomers are now, on a more regular basis, seeing the benefits of using technological collaborative tools (i.e. – cloud computing, telepresence, real-time document collaboration, etc) that is helping to make work flows and work products more complete.

DG: What can federal supervisors do immediately to improve communication between different generations?

JV: Talk, discuss, listen … do. Intergenerational collaboration makes the workplace awesome, and intergenerational conflict can bring down morale and productivity at lightning speed. Intergenerational issues need a place to breathe in the workplace, they shouldn’t be ignored. They don’t improve through avoidance. Supervisors should devote time at all-hands meetings or bi-weekly meetings to talk about their focus on improving the workplace through the application of intergenerational knowledge. Lay out a plan, listen to employee input, implement pilots/programs and embrace change. Intergenerational awareness is an important piece, but not the only piece to effective talent management.

That said, it’s important for employees to know that not every idea can be implemented, will make sense in the long term, or fit within the government legal/ethical box. Hence, supervisors need to communicate both the things that they will and won’t do, and supervisors have to take greater accountability for their own decisions and not “blame it on management.” Open, authentic conversations and discussions will help to reduce intergenerational conflict and expand intergenerational collaboration.

DG: What’s the biggest misconception about Millennials in the workplace?

JV: A lot of supervisors see their Millennial employees as “in-house tech staff.” Managers assume Millennials can navigate new systems and programs without any training. [The] truth is, Millennials are digital natives and they do have a comfort with new technology but that doesn’t mean that they are fully prepared to deal with any computer, cyber or system issue that pops up in their office, or across the enterprise.

DG: What are workplace trends you expect to see in the near future based on generational changes?

JV: On the good side, we will continue to see an expansion of work/life programs and an increase in the utilization of collaboration tools and cloud computing. We will see greater focus on the collection and analysis of big data and a stronger reliance on data to influence our decisions. The negative: We will probably see an increase in intergenerational conflict and a flatline/decrease in employee engagement, at least until organizations make a firm commitment to be identifying, addressing and deploying a more intergenerational approach to work.

What Can a Supreme Court Justice Teach Us About Change?

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By Deborah Hopkins, January 2, 2019

Yesterday, as my last official event of the holiday season, I went to see a movie with a friend. Those of you who know me are probably not surprised to learn that my friend and I opted to see On the Basis of Sex, a film focused on Ruth Bader Ginsburg’s fight for gender equality as an attorney in the 1970s, long before she was a Supreme Court Justice. If you don’t recall the history or you haven’t seen the film, then you might be surprised to learn that the key legal case in this fight was a Tenth Circuit appeal over a statute that provided tax deductions for caregivers. Justice Ginsburg’s client was a male caregiver who was exempted from the tax deduction, while similarly situated women who were caregivers were allowed to claim the deduction. Justice Ginsburg viewed this issue as a violation of the 14th Amendment’s Equal Protection Clause, found in Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]

The apex of the movie focuses on her oral argument in front of the Tenth Circuit judges. I won’t spoil the film if you don’t know the real-life ending, but I can tell you the primary argument discussed change, and how the interpretation or reach of the law may need to change as society changes; after all, society doesn’t wait for the law to catch up to it before it charges ahead.

During her argument on the topic of gender protection, a judge challenges her: “The word ‘woman’ does not appear even once in the U.S. Constitution.” Justice Ginsburg’s reply: “Nor does the word ‘freedom,’ your honor.”

Now before you start kicking and screaming and writing emails telling me that Hollywood ruins movies by riddling them with inaccuracies, that the Bill of Rights actually does contain the word “freedom” and that the Bill of Rights is a part of the Constitution, just take a deep breath, count to three, and read on. I know the Bill of Rights uses that word, and I know that the Bill of Rights is part of the Constitution. I think the point being made in the argument is this: In the original text of the Constitution, the word “freedom” was never used, and as America grew and changed so did the reach of the Constitution, the highest law in the land. This growth included the Bill of Rights, which was added to the Constitution in 1791, four years after the original document was ratified.

The truth is, America changes every day. Women in America could not vote until 1920, when the 19th Amendment was ratified. Women in America were not given the legal right to serve on a jury until, in some states such as Mississippi, the late 1960s. (Interesting note: Mississippi was the first state to allow women to independently own property, in 1839. Go figure.) In some states, women could legally be denied the right to practice law until 1971. Women could not apply for bank accounts or credit cards unless a husband or male relative approved, until the passage of the Equal Credit Opportunity Act in 1974. And on and on it goes.

I have done all the things listed above, but had I been born century earlier I would not have been able to do any of them because the law forbade it.

Whether by Constitutional amendment, the passing of legislation, or the interpretation of the courts and administrative bodies, the law changes almost every day. While the movie may not be entirely historically accurate (after all, that’s Hollywood), it does highlight this reality. And though the focus of this film was the fight for gender equality, thousands of movies could be made, and articles written, about other struggles Americans have faced, and are still facing today, on the bases of categories that were not legally recognized until the very recent past: race, color, religion, disability, national origin, age, and genetic information, just to name a few. The fight continues.

And at FELTG in 2019, we promise to continue to bring you the most current information about the law as it pertains to you, and as it changes. It’s what we’re here for – after all, it’s in our mission statement.

Here’s to hoping 2019 is the best year yet, despite the rocky start, with whatever changes may come.  Hopkins@FELTG.com