Civil Service Law and Kavanaugh

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By William Wiley, October 2, 2018

As I watched the Ford-Kavanaugh Supreme Court Justice nominee hearings recently, I was struck by the lack of standards for the process. In case you’ve been in a cave for the past week, the issue of the hearings was whether nominee Kavanaugh had engaged in sexual misconduct with Dr. Ford when they were both teenagers some 35 years ago.

The scene was riveting. Dr. Ford testified consistently and fearfully for five hours as to her memory of a party at which Brett Kavanaugh tried to sexually assault her. Nominee Kavanaugh testified loudly and angrily about how unfair the nomination process had become. Dr. Ford swore that she was 100% certain that the attack occurred as she had described it. Judge Kavanaugh swore that it did not. A classic he-said she-said situation.

Subsequent to the two testimonies, the Senators and media pundits were flummoxed, emotional, and all over the place as to what to do. Who was telling the truth? Where’s the proof either way? THERE IS NO PROOF! OH, YES THERE IS!! Such anger, hostility, and bewilderment as to what really happened that night. Geez, you’d think that the future of America was at stake or something in what is really just a personnel matter.

The more I heard the Smart People talk, the more it became clear to me that our civil service system is designed to determine the truth much better than what the members of the committee and the public commentators are doing.

First, there’s the matter of exactly what does “proof” mean? That concept was thrown around a lot, and it certainly is the heart of the matter. But if you listened closely, you came to realize that there was no generally accepted definition of the concept of proof applicable to the event at issue at the hearing.

Those readers who have attended our civil service law seminars know that there are three levels of proof applicable in personnel matters in the executive branch:

Substantial Evidence. This is the lowest burden of proof in a federal personnel situation. Most commonly, we use it when deciding whether an agency has proven that a poor performer should be fired. A layperson might say that its meaning is that “maybe” the employee was a poor performer, although reasonable others might disagree. Hard to get lower than that.

Preponderant Evidence. This is the burden of proof most commonly used in personnel situations because the most common personnel situations involve discipline and discrimination matters. In these sorts of cases, the agency or the employee prove their case if they can show that “it is likely” that the claims are valid; e.g., it is likely that the employee engaged in the charged misconduct that was the basis for the removal.

Clear and Convincing Evidence. The civil service laws have reserved this highest proof burden in personnel matters for the most beloved group of federal employees: whistleblowers. If an agency fires a whistleblower, it must leave the judge with a “firm belief” that the misconduct occurred, not that it just “probably” occurred as the preponderant level would suggest. The courts have defined this as a “heavy burden.”

Just think what kind of difference it would make in the Ford-Kavanaugh controversy if the Senate would simply decree what the burden of proof was for Dr. Ford’s claims:

  • If substantial proof is all that is needed, the White House had better start looking for a replacement nominee. I think that few clear thinkers could deny that the event at the party 35 yeas ago “might’ have happened. Dr. Ford’s memory seems burned into her brain, graphic in detail, and consistent in description. No, we can’t say that for sure it happened, but that is not the evidence standard when we say that the proof expectation is only substantial.
  • If clear and convincing proof is necessary, Nominee Kavanaugh can start getting fitted for a nicer robe. Some of us might really want to believe Dr. Ford out of compassion for her situation and deep sympathy for someone who has so obviously been traumatized. But aside from those feelings, to my read it is difficult to say that the objective evidence has satisfied the “heavy burden” requirement.
  • If preponderant proof is necessary, then we have to decide who is telling the truth: Ford or Kavanaugh.

And, of course, there’s the rub. Senator after Senator, talking head after talking head, has whined and bemoaned that Dr. Ford cannot be believed because there is no corroborating evidence. It’s just her word against his. In the mind of the uninitiated, without corroborating evidence, we cannot have proof at the preponderant level.

MSPB had a similar problem back in its earliest years as an adjudicating body. A number of cases arose in which the removal on appeal hinged on a determination as to which of two witnesses was telling the truth. Some of the Board’s judges (“presiding officials,” back in the day), tried to dodge the bullet by ruling that as they could not determine who was telling the truth, the preponderant evidence level had not been reached. Well, the Board members would have none of that. They reminded the judges that they were being paid to conclude who was being truthful and who was not. So, they remanded those cases to the bullet-dodging judges and told them to do their jobs of adjudicating. In doing so, the Board created a tool that the Senators could very well use today to make the credibility call between Ford and Kavanaugh.

We’ll describe and apply that tool in a later article. We will no doubt be too late to help with this particular nomination, but maybe the next time something like this comes along, the more clear-headed Senators will find it more useful than gut-based truth-determination.  Wiley@FELTG.com

Homicide in the Workplace

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By William Wiley, September 25, 2018

I’ve always been a worrier. Even in my class picture from the second grade, you can see that I have a lot on my mind and the weight of the world on my shoulders. There are so many rules in life and someone has to be concerned that we all follow them. Even at the ripe old age of seven, I somehow knew that would become my mission in life.

These days, one of my recurrent worries is for the safety of those of you in our FELTG Nation. Did you notice last week that within 24 hours, there were two (2) (!!) workplace shooting sprees? As was reported in the Washington Post, on Thursday, a Rite Aid employee in Maryland entered her regular work space, shot and killed three coworkers, wounded three others, and then shot and killed herself. The day before, an employee of a Wisconsin software company opened fire in his workplace, wounding three coworkers before killing himself. The Bureau of Labor Statistics estimates that every Monday through Friday, every week of the year, two people are killed in a workplace by a coworker. These recent shootings will become part of those statistics in next year’s report.

I think it’s fair to say that the shooters in these two situations must have been under a lot of stress. Happy employees don’t usually open fire on people they work with. The Rite Aid employee was described by coworkers as “normally, a nice person.” There must have been something very stressful that pushed her over the edge.

Think about your federal workplace for a minute. Which of the following events do you think would be the most likely to drive one of your coworkers to kill somebody?

  1. Having someone steal your afternoon snack from the lunchroom refrigerator.
  2. Receiving a “Fully Satisfactory” performance rating when that no-good employee next to you got a rating of “Exceptional.”
  3. Having your boss propose to upper management that you be fired.

I will yield that any one of these events could result in a fragile person reaching for his Glock. Those afternoon snacks can be very important. However, I think we would all agree that, relatively speaking, receiving notice that you are about to lose your job has to be one of the most stressful events that might occur in a government workplace.

Acknowledging that stress is often related to workplace violence, and that a proposed removal is just about the most stressful event one would expect in a government agency, which of the following options do you think that an agency should engage in when proposing to fire an employee?

  1. Leaving the employee to perform his regular job for a month, where he has access to all those important government documents you keep locked away on your hard drives and daily contact with multitudes of coworkers and agency clients;
  2. Hiring an armed guard to accompany the employee for a month while he performs his regular duties; or
  3. Removing the employee from the workplace just as soon as you give him the proposed removal, barring his return by confiscating his government credentials, and blocking him from accessing the agency’s computer system from his home computer.

If you did not select number three, above, you are either more brave or more foolish than you should be. As Hamlet would tell you, “Get thee to a nunnery.” There’s safety there and you cannot reproduce.

In December 2016, Congress passed a law that allows supervisors to immediately remove employees from the workplace on the presentation of a notice of proposed removal. As a separate law requires that the employee be paid for 30 days subsequent to a proposed removal, Congress provided that the employee’s pay status in this situation would be paid Notice Leave. To invoke this Notice Leave period and remove the employee from the workplace, the agency has to certify that doing so was the best option of those available, and that NOT placing the employee on Notice Leave “jeopardizes a government interest.” I think it’s fair to say that keeping employees alive and avoiding a potential workplace shooting promotes a nice valid “government interest.”

When the law became effective in December 2016, OPM was given 270 days to issue regulations. Unfortunately, some agencies took the incorrect position that they could not utilize Notice Leave until OPM issued its regulations. In those agencies, employees are being kept in the workplace after notice of a proposed removal, endangering lives and property for no good reason. If OPM would just issue regulations that say that keeping an employee in the workplace after notice of a proposed removal by its very nature “jeopardizes a government interest,” then the potential for death and mayhem could be reduced substantially because agencies throughout government would implement Notice Leave routinely.

Well, the statutory deadline for OPM issuing regulations was a year ago this week. Happy anniversary, I guess. For reasons unfathomable to those of us interested in the safety of the civil service, this delay is an abomination. The comment period for OPM’s proposed regulations closed in the summer of 2017. It already has all it needs to issue final regulations and take a strong step toward protecting federal employees from a stressed-out coworker. Somewhere in that big building known as OPM headquarters – 1900 E Street NW, Washington, DC – sits a desk with the draft final regulations awaiting action. Somebody in that organization has the ability and the authority to move these regulations along, to take a major step toward reducing the chance of a newspaper story about a workplace shooter in a federal building.

If you happen to know who that somebody is, please let him or her know that this is life and death stuff. These regulations could save a life. Your life. And maybe even your contractor’s life (me). Help this young man in the picture above change his frown to a smile. When you’re in the second grade, you never imagine that a federal agency just doing its job could make you happy. Wiley@FELTG.com

MSPB Nominees no More

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By William Wiley, September 20, 2018

Dear FELTG Nation-

It is with a heavy heart that we inform you that our super-secret internal sources report that the Senate Homeland Security Committee has advised the White House that it will not act on the nominations of the three new members of the US Merit Systems Protection Board before the end of the current session. That means that the nominations will be returned to the administration without a vote and the nomination process will have to begin all over with a new Senate in January.

Our FELTG unofficial account tells us that we are now up to about 1,300 pending appeals, ready to be issued, with back pay accruing every day. By next year, we will be in the 1,600s.

Add to this that the current remaining member, Acting Chairman Mark Robbins, turns into a political pumpkin at midnight on March 1. His term will expire, and he cannot be renewed or held over any more. Unless a miracle occurs in February, on that date, the Board will be without any members for the first time in history.

Any agency’s demise diminishes me, because I am involved in the civil service; and therefore, never send to know for whom the nomination folds; it folds for thee. Wiley@FELTG.com

Who’s Afraid of a Big Bad PIP?

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By William Wiley, September 11, 2018

We hear it all the time from participants in our supervisory classes. “My HR specialist advised me not to use the Chapter 43 unacceptable performance procedures with a problem employee. He said the misconduct procedures would be much easier.” The White House executive order dealing with accountability went out of its way to stress that Chapter 75 procedures were always an option instead of Chapter 43 when dealing with a poor performer, see EO 13839, “Promoting Accountability & Streamlining Removal Procedures Consistent with Merit System Principles.” Finally, the recent MERIT Act voted out of a House committee last month would abolish 5 USC Chapter 43 altogether, thereby preventing agencies from using a demonstration period to give the employee a chance to show whether he can perform acceptably.

Here at FELTG, we just don’t see the problem. Sure, if the bad employee has already done something that warrants removal, 5 USC Chapter 75 adverse action procedures are preferable. Otherwise, 5 USC Chapter 43 procedures offer a list of advantages, and they are easy to use.

One aspect of the unacceptable performance procedures that causes a lot more problems than it should comes from the document that must be given to the employee to initiate the evaluation period. So many agencies overwork that particular memo, adding in a bunch of things completely unnecessary to having a legally viable document. Stuff like:

  • Instances of previous unacceptable performance that caused the supervisor to implement an evaluation period.
  • Referrals to EAP, EEO, medical providers (in case there’s a disability), OSC (in case the employee thinks he’s being reprised against for whistleblowing), etc.
  • Lengthy paragraphs as to how important it is to the mission of the agency that the employee perform acceptably, admonitions to work hard and prosper, and promises of tremendous help and guidance throughout the period.

Not only does all this extra language take more time, but it does nothing useful for the agency, and in some instances can even cause more trouble than necessary. Look. You want to initiate a demonstration (aka PIP) period? Easy peasy. Send the employee an email like this:

Bill-

It’s come to my attention that lately you have not been performing acceptably regarding Element 3 of your annual performance plan (attached). I have decided to give you 30 days to demonstrate whether you can raise your performance to an acceptable level. Starting today, here are some things I need you to do.

1 – Keep copies of every document (including emails) you create relative to the tasks that relate to Element 3.

2 – Keep a log of all phone calls and in-person discussions. Note the person involved, the content of the discussion, and whether any follow-up was required on your part.

3 – Meet with me every Friday for the next 30 days to discuss your progress for the week. We will meet in the main conference room at 2:00 PM, and you are to bring the above with you.

If you fail to accomplish three or more Element 3 assignments during the evaluation period, regrettably I am required to initiate steps to remove you from your position. Should you have any questions regarding my expectations of you, please direct them to me at any time.

Those of you with sophisticated computer skills might even be able to squeeze this into an instant message. Or, even a 280-character tweet. This is not hard. In fact, it is embarrassingly easy. If you believe that more is required, you do not understand the law of civil service performance accountability. Hey, that’s OK. Come to our classes. Learn the best way to do this business. Tell the folks on Capitol Hill and in the White House that we don’t need new laws, we just need good training. Hey, you can have us come out to train you. Or, if drafting the above email is just too much for you, we’ll even do it for you.

Don’t let poor performers get you down. FELTG is here to help. Wiley@FELTG.com

The New Definition of Collective Bargaining

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By William Wiley, September 3, 2018

As we talked about in this space last week, a federal district court judge has recently enjoined (stayed, put on hold) major parts of the three Executive Orders that were issued by the White House back in May. The EOs were intended in large part to curb the accomplishments of unions in the civil service. The court’s order declared the EOs to be illegal primarily because by setting out bargaining objectives, the President has effectively foreclosed agency officials from negotiating for anything other than those objectives. The judge concluded that the President’s setting of bargaining objectives was an impermissible interference with a union’s rights in negotiating with management. The court reasoned that by definition collective bargaining requires the parties to be “flexible,” to bargain in a “give and take manner,” and to work toward a “mutually acceptable resolution.”

Well, where did this new definition of collective bargaining come from?

Here’s how the law has defined collective bargaining in the federal sector for over 40 years:

The performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession. 5 USC 7103(a)(12)

Somebody show me the word “flexible” in here. Where does the law require that the negotiators have to both “give and take”? The law says that there should be “effort to reach agreement.” Where does the judge find the definition of “agreement” to mean “mutually acceptable” agreement?

Consider the “mutually acceptable” tweak for a moment. If you tell me I have to sell my used car for a “mutually acceptable” price, I cannot stand firm on my asking price and I have to keep making concessions until the buyer says, “I’ll take it.” Maybe that’s a good way to negotiate if you’re having a garage sale because in reality, you just want the junk out of your garage, and you’ll take any offer just to get someone to haul it away. In comparison, selling your old Porsche is not a yard sale. You have a firm price and it can sit in that garage until your kids have to deal with it during the probate of your will for all you care. You are not letting it go for less than what you consider to be its value.

Collective bargaining in the federal government is not a garage sale. If the union demands free office space in a proposal, management should be free to just say no. Nothing in the law or derived case law says that an agency engages in bad faith bargaining by refusing to concede things to the union, or that management negotiators have to be “flexible” and engage in “give and take.” The court effectively is mandating that if management (or, I guess the logic would hold true for the union, as well) is inflexible and refuses to make a concession, it is violating the law. Well, the law says very specifically that collective bargaining “does not compel either party to agree to a proposal or to make a concession.” The very words “flexibility” and “give and take” imply the making of concessions. The judge in this case has misapplied the law.

The court’s decision concludes that the EOs impermissibly interfere with the union’s rights to collective bargaining. That’s equivalent to saying that the EOs require bad faith bargaining. If you know your FLRA case law, you know that bad faith bargaining occurs, inter alia, when a party refuses to meet, refuses to consider the views of the other party, or refuses to participate in the impasse process. There has never been a single Authority decision that says a party engages in bad faith bargaining by refusing to make a concession, by being inflexible, or by abstaining from giving and taking.

Had the White House issued an EO that directed the Federal Service Impasses Panel how to rule on impasses brought before it, then, in our humble opinion here at FELTG, that would be an impermissible interference with the union’s rights to collective bargaining. The EOs don’t do that. Instead, they lay out objectives to be attained within the framework of collective bargaining consistent with the law. They acknowledge the collective bargaining process and do not attempt to interfere with the conclusion of that process before FSIP, if necessary.

The court’s decision effectively bars the President from providing guidance to agency heads regarding negotiation objectives to be attained through collective bargaining. However, 5 USC 301, read in consideration of 5 USC 305, makes the President, through subordinate agency heads, responsible for “determining the degree of efficiency and economy in the operation of the agency’s activities.” One would think that this statutory scheme allows the President to exercise this responsibility by providing direction and guidance to agency heads regarding the significant adverse effects to governmental efficiency and economy that can result from poorly negotiated collective bargaining agreements. Apparently, this judge does not think so.

There may be some very smart people who conclude that the EOs go too far, that the objectives that the White House has laid out are not good for America and are unfair to the unions. Heck, we might even believe that here at FELTG (although we try not to think too deeply these days). It’s just fine to disagree with the EOs as a matter of policy. However, that does not make the EOs illegal. The judge in this case seems to be saying that because the White House has declared certain policy objectives that the union will not like, the EOs violate law. No, that’s a policy conclusion. Courts should be making legal calls, not policy calls. Wiley@FELTG.com

Big Parts of the Recent Executive Orders Bite the Dust

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By William Wiley, August 28, 2018

As every reader of our FELTG articles knows, on May 25, 2018, the White House issued three Executive Orders directed at the federal workforce. Two of them were intended to curtail union activity in the civil service and the third was designed to increase the ability of supervisors to hold employees accountable for misbehavior and shoddy work performance. On August 25, a federal district court judge in Washington, DC, set aside (enjoined) significant parts of those orders as illegal, AFGE, et al v. Donald J. Trump, et al, DC District Court No. 1:18-cv-1261 (KBJ). In doing so, the judge put a broader spin on the concept of collective bargaining than we’ve ever had before. Here’s what you need to know now.

First, these are the specific sections of the EOs that have been enjoined:

  • 13,836 (Bargaining Obligation) – Sections 5a, 5e, and 6
  • 13,837 (Official Time) – Sections 3a, 4a, and 4b
  • 13,839 (Accountability) – Sections 3, 4a, and 4c

All the other sections were found to be valid. Also, these sections are invalid only as they apply to management’s collective bargaining obligation.

Next, here are the actions called for by the EOs that are no longer valid:

EO 13,836

  • Setting time limits for bargaining
  • Requiring only written proposals be exchanged, not oral
  • Barring the bargaining of the “permissive” topics of negotiations

EO 13,837

  • No official time for unions to lobby Congress
  • No official time to pursue grievances
  • 25% limit on individual use of official time
  • Limit on total amount of official time that can be negotiated
  • No more free office space or free equipment for the union
  • No more expense reimbursement for union officials

EO 13,839

  • No 30-day limit for performance demonstration periods (aka PIPs)
  • No more grieving anything relative to awards

Finally, an overview of the content and rationale of the court’s decision:

Content – Fully half of the decision is a discussion of the court’s jurisdiction and the ripeness of the issues that constitute the union’s arguments against the EOs. If you got an “A” in civil procedure in law school and think that Constitutional law is the cat’s meow, be sure to savor this section. For the rest of the FELTG Nation, you can spend your time with other more relevant matters.

Rationale – Follow this logic chain closely. It contains a leap in concept that could turn bargaining in the Federal Service on its head.

  1. It is the intent of Congress, as expressed in the preamble to the Civil Service Reform Act of 1978, that agencies and unions engage in collective bargaining.
  2. Although an EO is effectively a law for the purpose of collective bargaining, an EO cannot subvert the intent of Congress.
  3. Collective bargaining requires that agencies approach negotiations with an open mind “with every intention of coming to a mutually acceptable result,” demonstrating flexibility in a give-and-take process.
  4. Presidential statements in an EO, no matter whether they are directive or simply suggestive of goals, prevent agency officials from having an open mind. In this case, they effectively declare certain matters to be “non-negotiable.”
  5. Therefore, because Congress intended that agency negotiators have an open mind, and the EOs take away negotiator open-mindedness, those parts that deny flexibility are illegal.

As a separate issue, the decision takes a swing at a principle articulated by former FLRA member Patrick Pizzella. Member Pizzella argued in dissent in several FLRA decisions that the statute’s statement that collective bargaining should be done in mind with keeping the government efficient. The judge in this case dropped footnote 14 to indicate that she felt such an argument to be wrong. She reasons that Congress has declared by definition that collective bargaining creates an efficient and effective government. If I understand her correctly, you cannot have an inefficient or ineffective government if you have collective bargaining. There’s a whole lot of Kool-Aid in that concept, if you know what I mean.

OK, this should be enough to help you keep your head above the water for a while. If you, as management, are currently engaged with a union in negotiations regarding EO mandates, you have to back down from any arguments that your proposals are the result of the directions given in the EOs. For example, you can no longer say to the union, “We demand a 25% cap on official time use by a union official because there’s an EO that says so.” However, there’s nothing that says you cannot say, “We demand a 25% cap on official time use by a union official because excessive official time is bad for America and because a federal pay check should be based primarily on the performance of federal work, not union activity.”

And finally, keep in mind that the heart of this decision is that certain parts of these EOs impermissibly interfere with collective bargaining. The court makes it clear that it is enjoining those parts only and that the remainder of the EOs are valid. Therefore, as the accountability EO applies to both bargain unit and non-bargaining unit employees, it is invalid only as to the bargaining unit employees. The requirement for a 30-day demonstration period for non-bargaining unit employees, for example, remains the directive of the President.

We mentioned above that there’s a scary tweak in the rationale of the court relative to the legal concept of collective bargaining. In some ways, it’s a bigger issue than what has been enjoined here. Check back with us for a discussion of that horror in a later FELTG article. What exciting times!  Wiley@FELTG.com

GAO, Tell Us Something We Don’t Know

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By William Wiley, August 21, 2018

GAO recent released what could have been a Breaking News report entitled “Federal Employee Misconduct: Actions Needed to Ensure Agencies Have Tools to Effectively Address Misconduct (July 2018).” Given the recent kerfuffle about increasing employee accountability through Executive Order and redesigning the civil service through legislation, one would have hoped for some data and recommendations from a neutral outside body as to what can be done to make things better. Unfortunately, although in many ways comprehensive, the report doesn’t really set any pants on fire with its recommendations.

First, a short look at some of the report’s findings that parallel what we’ve been screaming from the FELTG mountaintop for about 20 years:

  • Supervisors should receive initial and ongoing training in discipline and performance procedures.
  • Supervisors should be held accountable for addressing misconduct in a timely manner.
  • Human resources and legal staff should work together with the supervisor to help put together the necessary adverse or performance action.

In addition to these recommendations (which we heartily support, but are nothing particularly ground-shaking) GAO unearthed some helpful statistics when it comes to the current health of our civil service accountability measures:

  1. Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year.
  2. 25% of employees who are suspended have been suspended before.
  3. Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions.

The thing that’s missing from the report that would be immensely helpful is for SOMEBODY to address this data and make a determination as to whether this indicates a well-functioning civil service discipline program, a mediocre program, or a program that we could not trade for a bucket of warm spit. The White House tells us that it wants the government to be run like a business. Well, wouldn’t it have been helpful to have some comparative statistics from private businesses? How about other countries that have what we would consider to be well-functioning civil services? Does France discipline its “fonctionnaires” at a rate similar to ours? How about the Crown employees in the UK? How often does the Queen act as a Deciding Official in a removal case?

Somebody needs to take this data and turn it into policy. As usual, since nobody else is picking up this responsibility, we here at FELTG jump into the driver’s seat because this bus isn’t going anywhere until policies get crafted and implemented. So here we go. The FELTG take on what to do with the data above:

Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year. This number seems low by about 80% of what it should be. Several years ago, the MSPB Chairman said that the percent of the federal workforce that was not doing its job is around 5%. That number matches up nicely with what studies of large organizations have shown us is true in the private sector and academic institutions: About 5-7% of the workforce needs to get better or get fired. Given that we appear to be exceedingly low in the number of disciplinary actions taken each year, our FELTG recommendation would be:

  • Mandatory training for all supervisors, HR staff, and attorneys in how to take these actions fairly and efficiently.
  • Performance standards for all supervisors that rate them on their accountability efforts.
  • Targets for HR offices and agency counsel that set the number of employees that should be fired based on a percent of the workforce; e.g., agencies would be expected to hold HR and legal offices responsible for supporting supervisors in disciplining or removing 3% of the workforce each year.

25% of employees who are suspended have been suspended before. If discipline is supposed to be corrective rather than punitive, it makes no sense to impose a second suspension if the first suspension did not correct the bad behavior. Albert Einstein is broadly credited with exclaiming, “The definition of insanity is doing the same thing over and over again but expecting different results.” Our FELTG recommendation would be that agencies who choose to use suspensions in their accountability programs state in their discipline policy instructions that supervisors can suspend employees once, but no more than once, absent exceedingly rare circumstances, and then only with the approval of the agency’s CHCO.

Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions. Long suspensions hurt the agency often more than they hurt the employee. Who is going to do the work of the suspended employee for the three or more weeks he’s not at work? Will the agency hire temporary contractors? Pay for overtime? Or, simply not cause the work to get done? As for demotions, they hardly ever make sense. If you demote an employee, you now have to accept work at the lower grade. If an employee has done something bad enough to warrant a demotion, 95 out of 100 times, removal is also warranted. Executive Order 13839 states that a “suspension should not be a substitute for a removal.” The same could be said for demotions. Our FELTG policy suggestion is for agencies to state in their discipline policy instructions that supervisors are not to use long suspensions to discipline employees. In addition, voluntary demotions can be offered to employees in lieu of a proposed removal, but otherwise should be avoided.

The GAO report also raises a couple of Deep Thought policy issues beyond those we’ve discussed above. We’ll save an analysis of those for another article. Wiley@FELTG.com

 

 

Emailing Jesus Christ

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By William Wiley, August 7,  2018

A number of agencies have someone like this. He thinks that his personal grievances about the workplace are soooo important that everybody above him in the chain of command must want to know about them. So he emails just about everybody in management with his complaints and allegations hoping to stir someone into action to fix things (and perhaps drop a load of damages and back pay on him). The “To:” block on his emails sometimes contains 50 or more recipients, usually including the President of the United States. In fact, I saw one several years ago that included an email to someone identified as “JesusChrist.”

I tried the address and I received a warning that it was likely SPAM. Maybe I’ll just stick to prayer.

Anyway, here’s a question we got from a member of the FELTG Nation who is having a similar hypothetical problem:

Dearest FELTG:

We [hypothetically] have an employee who raises frivolous claims related mostly to EEO issues (“I saw two co-workers hug and that’s sexual harassment” – that type) up her management chain and they’d like her to stop. This person is a serial EEO filer, which I know isn’t that rare a circumstance, but I haven’t come across any court-approved language that insulates the agency from EEO reprisal claims based on a cease/desist email or other order. Any guidance here?

And here’s our best-guess FELTG response:

Dearest Loyal Reader –

An all-too common frustrating situation with a couple of nasty potential pitfalls. First, OSC has developed some very specific gag order language that we are supposed to use when we restrict an employee’s communications. It’s along the line of your admonition, so follow the admonition with this:

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

Separately, EEOC will find that we have discriminated against an individual if we limit his ability to speak out in opposition to discrimination. I think you can put “reasonable” constraints on how a person speaks out in opposition, but the challenge is that EEOC hasn’t been particularly helpful in helping us know what constitutes “reasonable” limitations.

For example, I think that after the first time, we can tell an employee to stop emailing managers Smith, Jones, and Green about anything, as long as we make it clear that he can speak out in opposition to discrimination in any other forum. However, that’s just a guess as I know of nothing definitive from EEOC about that specifically. Unfortunately, we all know that EEOC tends to find discrimination in the darnedest places, so any constraints we enact have the potential to have a chilling effect on the employee’s rights to oppose discrimination.

[Hopkins Note: You may also want to check out the case Anthony Z. v. Air Force, EEOC No. 0120141988 (June 15, 2016), which says that a supervisor may protect employees from unwelcome conduct even if it references EEO activity. Here it was a complainant who wouldn’t shut up about his EEO complaints and kept trying to get his coworkers to file.]

Thanks for the question. Best of luck.  Wiley@FELTG.com

How to Handle VLTP Misuse

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By William Wiley, July 30, 2018

Some days it seems that every time you set up a system to do good for people, someone will figure out how to misuse it. The civil service program that falls into that category that we’ll cover today is the Voluntary Leave Transfer Program (VLTP).

VLTP is designed to allow employees to donate their accrued annual leave to other employees if an employee needs the leave because of a medical emergency:

5 CFR § 630.901 Purpose and applicability.

(a) The purpose of this subpart is to set forth procedures and  requirements for a voluntary leave transfer program under  which the unused accrued annual leave of one agency officer or employee may be transferred for use by another agency officer or employee who needs such leave because of a medical emergency.

I once received a question from a supervisor (a supervisory attorney, no less) who could not figure out what to do in a situation in which one of her employees was physically bullying coworkers into donating their leave to her so that she effectively had to work only 32 hours each week while getting paid for 40. Folks, if it doesn’t make sense, and is bad for the civil service, then there’s almost always a way to handle it.

Recently, we got the following related question:

Dearest Beloved FELTG, Source of All Civil Service Law Knowledge:

I attended Absence, Leave Abuse & Medical Issues Week in March and am reaching out to you for guidance. I am the Voluntary Leave Transfer Program Coordinator for my agency. We have a situation with an employee enrolled in VLTP. He has been enrolled for in the program since February 2016. He has managed to extend his enrollment every 3-4 months with medical documentation. He has a permanent [medical] condition and has several treatments and sometimes surgeries which maintains his work schedule to be from 15-30 hours per week. He supplements the rest of his income with donated leave. We have tried unsuccessfully in denying extensions based on the fact that VLTP is not to be used as a substitute for disability retirement; that his condition is permanent; that the donated leave program is a short-term program, etc. We have been challenged with an EEO complaint in which he prevailed, and he was allowed to extend his VLTP participation as requested. We would appreciate any advice, guidance or insight that you could shed on this issue. [Sanitized settlement agreement attached.]

And here is our FELTG response, tinged with a bit of anger at how this person is being allowed to misuse the generosity of his hard-working coworkers:

Dear AMI Attendee-

The employee did not prevail in his previous EEO complaint in the sense that anyone ever said what you did was wrong. An agency official simply decided to not defend the agency any longer, and that the most expedient way to resolve the matter was through a settlement agreement. We have no idea why that was done. It clearly was not based on the legal merits of the discrimination claim.

Separately, the settlement agreement says it has no precedential value and applies only to VLTP approved in the past:

“The terms of this Agreement establish no precedent … “

You have every right to discontinue his use of the VLTP program. As he has a permanent disability, he does not meet the criteria for its use because he does not have a temporary medical emergency:

5 CFR § 630.905 Approval of application to become a leave recipient.

(a) The potential leave recipient’s employing agency shall review an application to become a leave recipient under procedures established by the employing agency for the purpose of determining that the potential leave recipient is or has been affected by a medical emergency.

If you continue to allow him to use the program, you are unfairly cheating the other employees of your agency who qualify for the program and would benefit from its temporary use. You should notify him immediately that you are discontinuing his use of VLTP and that if he is unable to report to work, he will have to request use of other leave that might be available. Also, he should be informed who to contact to apply for disability retirement if he believes that his medical condition prevents him from performing his job on a full-time basis. In the future when he does not report to work, if he has no annual nor sick leave, he should be charged as AWOL. The AWOL should then be addressed through adverse action. Nieto v. Treasury, EEOC Petition No. 03A10032 (2002); Murray v. Navy, 41 MSPR 260 (1989).

If you readers are unfamiliar with taking an adverse action in this situation to remove the employee, or you never heard of caselaw like Nieto and Murray,  get yourself signed up for our next Absence, Leave Abuse & Medical Issues Week program, Sept. 24-28 at Dupont Circle in Washington DC. We offer this particular program only twice a year and it almost always fills up. It’s up to management to stop leave misuse, even in situations in which the employee truly has a serious medical condition. Wiley@FELTG.com

Whiners

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By William Wiley, July 24, 2018

Lordy, you would think that the President’s three recent Executive Orders were going to cause the civil service to implode, thereafter leaving a vast wasteland of impoverished traumatized federal employees. I haven’t heard this much whining since I got my head shaved for Navy boot camp (funny note; the whining was all mine). Let’s look at a few complaints I’ve seen in the media about the negative effects the EOs will have on the civil service, and our snarky FELTG responses to each issue:

The 45-day time-limit for amending agency discipline and performance instructions to conform with the EOs is too short.

An agency usually has a single discipline instruction. It can be brought into conformance with the EOs by adding a paragraph at the end like this:

  • Supervisors can consider all past discipline as aggravating factors when deciding what level of discipline is to be imposed for a current act of misconduct.
  • After receiving the employee’s response to a proposed adverse action, the deciding official should issue a decision within 19 days.
  • The notice period for a proposed adverse action should not exceed 30 days.

The grievance instruction can be amended with the following language:

  1. Exclusions: Employees may not grieve performance ratings, awards, incentive pay, or recruitment/retention/ or relocation payments.

The performance management instruction can be amended with the following language:

  1. When an employee’s performance falls to the Unacceptable Level, the supervisor will implement a 30-day evaluation period to allow the employee to demonstrate whether he can perform at an acceptable level.

If the agency has an instruction relative to discipline alternatives or settling cases, those have to be amended to preclude a clean record settlement once a document is placed in an employee’s official file. If the agency has an instruction relative to report filing, that will have to be amended to provide for the new reports called for relative to adverse actions and performance actions.

There. That took me 10 minutes. Most any Human Resources I’ve ever worked with can take it from here in much less than 45 days.

Employees will need more than seven days to prepare a response to a proposed removal because the agency will need more time than that to respond to the union’s request for information.

The agency has no obligation to delay a proposed removal decision until it responds to the union’s request for information. Any agency that does that is foolish.

It takes longer than seven days to coordinate the schedules of the individuals involved in an oral response.

No, it doesn’t. As we’ve taught for many years in our FELTG seminars, the date and time for the oral response should be stated in the proposal notice. That sets the availability of the deciding official. The employee is on the payroll during the notice. Therefore, he can be told where to be when. If the employee cannot find a representative who can be at the set date for the response, he should find another representative. MSPB has never held that an agency commits reversible error by not accommodating a representative’s calendar to schedule an oral response.

Deciding officials need a lot of time to evaluate an employee’s response.

When I worked at MSPB, Board members had to review entire case files on average within two hours. Yes, there was preliminary summarization of the facts and argument by support staff (me), but that work hardly ever took more than four hours. The EOs give the agency’s deciding official 19 days to evaluate existing facts and argument. Juries often do the same thing in a few days. The President is saying that these decisions should be made promptly. In my world, 19 days is a generous period of time to analyze arguments and facts.

There are situations in which the deciding official might have to provide the employee a new response period; e.g., perhaps new information has come to the attention of the deciding official and she plans to rely on it in making her decision.

Then, the 19 day clock resets until the employee has had a final opportunity to respond to the new information.

It takes significant time for a decision letter to be drafted.

Not if the agency representatives have been through FELTG training. An ideal decision letter is three sentences and then the appeal rights section:

  1. On x date your supervisor proposed to me that you be removed from service based on the charges in the attached proposal notice.
  2. You and your representative have responded to this notice, and I have considered your response.
  3. It is my determination that it is more likely than not that you engaged in the conduct described in the charges in the proposal letter, and that your removal is warranted based on the assessment of the Douglas Factors contained in the proposal notice.

The accountability EO shifts the focus of the evaluation period for a poor performer from improvement to demonstration of acceptable performance.

No. For 40 years, the law has said that the evaluation period is for the DEMONSTRATION of acceptable performance, not the IMPROVEMENT of performance. It’s a final exam, not a training class. The EO simply restates what has been the law for four decades. There is no shift.

We don’t know how much legally-required assistance has to be provided during the evaluation period, nor how long an evaluation period has to be to be legally acceptable.

Well, that would be correct IF WE HAD NEVER READ ANY MSPB DECISIONS. The Board routinely acknowledges that giving the employee feedback during the demonstration period satisfies the legal requirement for assistance from the agency. Also, the Board routinely holds that 30 days is generally adequate to evaluate the performance of a poor performer.

And finally, we hear from well-intended members of Congress that the EOs are taking away union rights. Well, no, they are not. They are curtailing benefits that management has ceded to unions through collective bargaining, but only when the law allows for such action; e.g., a CBA expires or is reopened.

In analogy, you may think that your old car is worth $10,000 and you might propose that you be paid $10,000, but that doesn’t mean when I tell you “no,” that I have somehow violated your rights to $10,000. Our friends on the union side have negotiated for significant contractual provisions for the use of official time for union work. However, contracts have term limits, and when those limits are exceeded, the parties are again equal and everything is back on the bargaining table. If Congress had intended that unions have different rights, it certainly could have included those in the law. It did not.

These are exciting times in the world of federal civil service law. Being a part of that world, we here at FELTG are excited, as well; not necessarily because of the specifics of the EOs, but because it is legally fascinating to see an old law like the Civil Service Reform Act of 1978 doing new tricks. After one of our recent webinars on the EOs, a participant told me that Deb and I sounded absolutely giddy. Well, we are. We are giddy that the system is working, that neither management nor unions control federal sector labor relations, that the EOs are simply a tool to be used in collective bargaining, this time to rein in some of the excesses of previous management negotiators. No doubt the next time, the smart guys on the union side will figure out how to take some of it back.

That’s what union/management negotiation in the civil service was always supposed to be: give and take, then more give and take. The White House has not ended collective bargaining, it has re-energized collective bargaining. None of us really knows where we will be with these EOs come this time next year, but one thing is sure. Wherever we are, it will be the result of the process that Congress intended when it invented statutory collective bargaining in 1978. Whiners, if you don’t like that, change the law. Until then, suck it up and learn to negotiate.

Geez, where can someone learn to negotiate in the federal government? Why, my goodness. FELTG appears to be offering an entire week of training on that very topic October 15-19 in Washington DC, just five blocks from the place that issued the EOs. Be there or be square. Wiley@FELTG.com