I Can’t Keep Up with this Stuff

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By William Wiley, July 19, 2018

Recently, you readers got an article from us (me) here at FELTG that purported to describe the MERIT Act that is moving through Congress. Well, as it turns out, it’s moving faster than I can keep up with. Thanks to a heads-up email from a very important reader, we now know that our article described an earlier version of the bill that was subsequently amended.

The most recent version of the bill contains the following significant changes:

Current Law MERIT Act Changes Original MERIT Act Changes Now
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed. 7-day minimum; 21-day maximum notice period. The period of advance notice of proposed action is reduced to 15 business days. The period of time in which an employee has to respond to a notice of proposed action is reduced to no more than 7 business days. This actually increases the employee’s response period by two days from the current seven calendar days. It reduces the overall notice period from 30 days of pay to 19 days of pay.
30-day maximum time period to file an appeal of a removal to MSPB. 7-day maximum period of time to file an MSPB appeal. The appeal must be made not later than 10 business days after the adverse action is effective. That’s 12 calendar days, for those of you used to counting days that way, down from the current 30; less time to find a representative and draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal. A firm 30 days for the MSPB administrative judge to issue a decision. No time limits on the Board’s judge to make a decision.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred. No more whistleblower stays. Stays of whistleblower reprisal claims are OK.

If you think that these changes are significant, get a load of these:

  • The ability to use demonstration periods and to remove employees for failing performance during the demonstration period is repealed (5 USC Section 4303). No more PIPs, ODAPS, or any other opportunity to demonstrate acceptable performance.
  • Unionized employees can no longer grieve and arbitrate removals, long suspensions, demotions, RIFs, or furloughs greater than 30 days.
  • Furloughs of 14 days or fewer may no longer be appealed to MSPB.
  • Demoted SESers for poor performance can no longer retain the pay of the higher-level position.
  • SESers may be suspended for fewer than 15 days.
  • Employees who are removed or proposed to be removed for committing a felony will cease to accrue time credit for an annuity during the period the felonious misconduct occurred. Not sure how this will be applied as sometimes it takes just a few minutes to commit a felony.
  • Agencies may recoup award, relocation, recruitment, and retention monies paid to an employee if the agency subsequently determines that the employee engaged in misconduct or unacceptable performance prior to the payment.
  • Probationary periods are to be extended from one to two years.

In addition to the MERIT Act, HR 559, the House Oversight Committee this week also voted out HR 6391. Add the following potential changes to your to-think-about list:

  • Individuals who appeal their adverse actions to MSPB will have to pay a filing fee, refundable if the appeal is successful. MSPB will set the fee amount, to be no more than half of what a filing fee is in district court (currently that would be half of about 50 bucks).
  • The Board can mitigate a removal to a suspension or less only if the removal is so disproportionate as to be wholly without justification. Now, the agency has to prove that the penalty is within the range of reasonableness by a preponderance of the evidence.
  • The Board may grant summary judgment motions and decide the appeal without a hearing. Now, the MSPB judge is obligated to provide the employee a hearing if he asks for one.
  • Appellants no longer have an unfettered right to a hearing on appeal even without a summary judgment motion.
  • Board members can be reappointed once their terms expire. This has always been the case at FLRA and EEOC, but not before at MSPB.

Whew. if you are not blown away by these changes, you must be highly medicated. Some changes would be effective within 90 days of the day the bill becomes law, others have a one-year date for implementation. There are other parts of the pending acts that address secondary issues, but this Executive Summary captures most of the issues you need to know about now.

I am reminded of a day in the fall of 1978 when, as a young HR lad, I sat in on a staff meeting in the civilian personnel office where I had been employed for just over a full year. Somebody passed out copies of the Civil Service Reform Act of 1978 and the attendees all began to discuss it. I, naively, said, “Hey, is this a big deal? Does it really matter that we just got a new civil service law? Doesn’t this kind of thing happen all the time?” Over the ensuing laughter, I was quickly informed that, yes, Virginia, it is a big deal (don’t know why they called me “Virginia”). When Congress makes significant changes to civil service law, the whole government catches its breath.

We, the members of the civil service law profession, just caught our collective breath. And, we should each hold onto it until we see what comes out of the Senate relative to these bills. Or, we faint, whichever comes first. Buckle up, kids; the ride, she will be bumpy. Wiley@FELTG.com 

Don’t Say We Didn’t Warn You; the End Times are Upon Us

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By William Wiley, July 18, 2018

We have been shouting from the pages of our articles and in our classroom seminars (and webinars) that because we are not doing a good job of holding employees accountable, we are on the verge of losing our federal civil service. We leave it up to you, the informed reader, as to whether that is a good thing or a bad thing. But it is a thing nonetheless. And the verge just got a full step closer.

About 18 months ago, HR-559 was introduced by a bunch of Congresspeople in the House of Representatives. If you know how Congress works, members introduce a lot of bills to make sure, in part, that they have something to brag about when they communicate with their constituents. Now, most of those bills never make it to first base. They are assigned to a committee, and the committee discretely fails to act on the submission. Congressional representatives get points for the introduction, and that’s about it. If a bill is ever voted out of a committee, that’s huge, because now it goes to the floor for a vote, a vote that usually agrees with the recommendation of the committee, especially if the bill has many cosponsors. Given that this particular bill sat in committee for a year-and-a-half suggested that it would die the fate of most pieces of proposed legislation, and just fade away.

Well, well, well. Guess who just made it to first base? That’s right, HR-559, the MERIT Act of 2017, was voted out of committee recently. With 55 cosponsors (all Republicans, if you care), it now stands an excellent chance of being adopted by the entire House. That would be second base. Then, it goes to committee in the Senate where historically many House-passed pieces of legislation go to die. However, this year is different from many others:

  • The Senate has signaled that it is geared up to pass legislation and confirm Presidential nominations by significantly shortening its usual month-long August recess.
  • In case you haven’t noticed, there’s a midterm election coming up in November. Look at your three-part government-issued calendar hanging on your wall. That’s just a couple or three pages from now.
  • Congressional Members and Senators love to take recently-passed legislation to the voters near elections to show them that they take governing seriously. What could be more serious governing than creating a law to make it easier to get rid of bad government workers? You know, those federal employees that the public, in general, thinks are over-paid and under-worked?
  • Republicans who support the President, according to the Washington Post, are winning elections over Republicans who do not.
  • The President, in his State of the Union speech, said he wants the law changed to make it easier to fire federal civil servants.

Being a betting person, if I had the opportunity, I would bet that this bill is going to make it to third base (committee passage in the Senate), and then to home plate (adoption by the full Senate) before the end of the year. With that in mind, let’s take a look at how our civil service will change if the MERIT Act indeed does become law:

Current Law MERIT Act changes
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed. Some agencies have kept employees on the payroll for more than a year after issuing a proposal. 7-day minimum; 21-day maximum notice period. No more extended pay period beyond the removal being proposed. Not only does this change reduce the pay to the employee, it also restricts the amount of time he and his representative have to prepare a response to the proposal.
30-day maximum time period to file an appeal of a removal to MSPB. 7-day maximum period of time to file an MSPB appeal. Less time for the fired employee to find a representative. Less time for the representative to draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal. A few AJ decisions take many months beyond this goal because of complexity and workload. A firm 30 days for the MSPB administrative judge to issue a decision. If the judge exceeds this time limit, the removal stands. Also, MSPB has to report the failure to Congress where the judge’s next birthday will probably be cancelled.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred. No more whistleblower stays. There really weren’t many of these anyway, but man-oh-man, were they a poke in the eye when they occurred.
Each fact and the ultimate justification for a removal must be supported by a preponderance of the evidence. This means that the firing agency must present evidence to MSPB that it is more likely than not that the removal is justified; i.e., that removal is probably warranted. This is a significantly lower burden of proof than the beyond-a-reasonable-doubt burden required to convict someone of a crime. A removal must be supported by substantial evidence, a lower burden than preponderance. The agency must prove that removal might be warranted, not that it is probably warranted. The Supreme Court has described this evidence burden as a grain more than a scintilla. Most cases we lose are not lost for lack of proof; most are lost for using bad procedures. However, this will help with those where proof is controlling. *

* Here’s an example of how the lower burden of proof most likely would have helped an agency. Several months ago, our friends at the Forest Service fired an employee for engaging in unwelcome sexual conduct after hours in his government-provided housing unit on agency property. The judge who heard the appeal set it aside, reasoning that the agency had not proven that there “probably” is a nexus between the off-duty conduct and his agency employment. In my opinion, and it is worth exactly what you are paying for it, a judge would be hard-pressed to conclude that the agency failed to prove by at least substantial evidence that there “might be” a nexus. Those grains and scintillas are mighty tiny, you know: a jot, a whit, an iota, a scrap, an itty-bitty trace.

So, let’s put all this into perspective. If the MERIT Act becomes law, we still have a protected civil service. However, if in today’s world you believe that on a scale of 1-10, the effort necessary to fire a bad federal employee is about an 8, the level of difficulty under the MERIT Act now drops it to about 2-3. We can still lose cases on appeal if we, for example, violate the employee’s due process rights and the judge acts quickly enough to reverse the removal. The act does not go as far as the law change over at the Department of Veterans Affairs last year where there is now no mitigation of the penalty. Under the MERIT Act, agencies will still need to do a Douglas Factor analysis. Nor does the act take away MSPB appeal rights altogether, as was done to SESers at VA. The core rights of federal employees to be treated fairly remain in place. However, the mechanisms by which an employee can exercise those rights will be significantly restricted.

Keep in mind that this is still only a bill. The Senate is known for taking the edge off of House-passed legislation. Your guess is as good as anyone else’s as to what sausage will come out the other end of this legislating process. However, if the MERIT Act becomes law, whatever you do in the civil service will change significantly. And, it’s because in large part we have not effectively used the existing laws to hold bad employees accountable. Keep THAT in mind as well as you move toward implementing whatever it is that finally comes out of Congress.

Wiley@FELTG.com

Unions are Like Salt

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By William Wiley, July 12, 2018

To me, Federal unions are like salt. A bit is good; too much spoils the whole dish.

President Trump was probably thinking about that when he issued his two union-limiting Executive Orders recently. He didn’t issue an EO banning union activity in any large segments of federal agencies as some would argue he could do by using his statutory authority at 5 USC 7103(b)(1). He didn’t say that unions do bad things. Instead, he primarily said that union activity costs too much.

If you understand collective bargaining in the civil service, you realize that President Trump was being critical of how agency management in the past had been, in his opinion, too generous with unions when negotiating working conditions. For example, his EOs restrict the amount of time an individual employee can devote to union activities while being paid his regular salary (a concept known as “official time,” or in the language of the EO, “taxpayer-funded union time”). No doubt he was responding to the situation a number of agencies have where some federal employees are paid their regular salaries for performing union work 100% of the time. Under the new EOs, individual employees serving as union officials will be limited to no more than 25% of their paid work time being official paid union time. That means that 75% of the year, the employee will have to perform the job he was hired to do, if he wants to get paid.

So how did we get into a situation in which some federal employees are paid their regular salaries for doing union work 100% of the time? Was there a mandate from Congress that this be done? Did the Federal Labor Relations Authority somehow require that this occur? Do the union negotiators have some sort of magical power by which they gave themselves 100% official time?

Nope. Those things didn’t happen. The way that some union officials got the entitlement to get paid their regular government salary for doing full-time union work was that agency management negotiators agreed to it through collective bargaining. Whether or not we agree with the President’s position that individual employees should be performing their regular government duties at least 75% of the time, we have to acknowledge that it’s not solely the unions’ fault that the current situation occurred. Agency management negotiators who signed off on collective bargaining agreements that allow employees to use large amounts of official time are as much to blame as anyone. The new EOs are an attempt to roll back the previous generous management grants of official time to something the President thinks is more reasonable.

There has been a lot in the press about how the EOs’ limiting of official time violates the law and is fundamentally unfair. Unions do important things: e.g., protect employee rights, such as the right to be free of civil rights discrimination and the right to obtain employee benefits like child care facilities. Unions represent the interests of employees in the many workplace decisions that would otherwise be solely left to management to decide, such as flextime rules. Unions need official time for their representatives to do these things.

Well, not according to Congress. When the Civil Service Reform Act of 1978 was drafted, the bill indeed did mandate official time for some union activities, specifically bargaining and interacting with FLRA. 5 USC 7131. However, it specifically DID NOT mandate official time for everything else that union officials need to do. And those “other” activities take up the bulk of official time used today by union officials. Instead, it left the amount of official time for these activities up to the collective bargaining process, to a mutual agreement between union and management negotiators as to what is “reasonable and necessary” official time. One could argue that if these other duties were so important and fundamental to a union’s right to exist, Congress would have mandated that a specific amount of official time be provided to perform those duties. It did not. Therefore, the President’s actions designed to limit official time cannot be said to completely abrogate a union’s ability to provide services to bargaining unit employees, whether we agree with those limits or not.

It’s all about the $$$. Union officials are free under the EOs to perform all the duties they now perform on official time; they just don’t all get paid for all of that time. If the President had issued orders to prohibit union representation of BU employees, we would then have an illegal action. Instead, under the EOs, union officials can still represent. They can be paid for part of that time by the agency; otherwise they must do so after hours or on annual leave or LWOP if they can cut a deal with the agency to use leave for that purpose. In addition, significant time for representing employees must now be spread out among more than one union official. For example, instead of one union official spending 100% of her workday performing union work, she must now spend no more than 25% of her work life on union activities, either on leave or official time. The remainder of union work to be performed during the workday must now be spread among other union officials, all of which must perform their regular government duties at least 75% of the time.

The President is spreading the salt among several individuals. You and I may disagree that this is how unions should be allowed to use official time, or you may think that it is unreasonable to require individuals to either cut short the services they provide as union representatives or provide services on their own time. But our disagreement does not make the EOs unlawful. There are a lot of legal ways to approach the process of collective bargaining. The President has told us how he thinks it should be done. Wiley@FELTG.com 

Let’s Embrace Change

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By Dan Gephart, July 9, 2018

Hello FELTG Nation!

Do you mind if we talk about change?

As I write this, I’m gazing at a For Sale sign that looks oddly out of place on my sun burnt front lawn. This concrete box I sit in has sheltered numerous Gephart humans and four-legged creatures since the new millennium. I’m not just leaving this house, though. I’ll be fleeing the Sunshine State, which has been home since my two adult sons were toddlers, or as we affectionately call them here “gator brunch.”

And that’s not even the biggest change. This week I started a new job for the first time in more than 23 years. Twenty-three years! That was so long ago, Al Gore was still reinventing government and smashing ashtrays.

But I don’t need to tell you about change.

You live with change every day.

I know. As the former long-time program chair of a certain federal training conference that I will not name (rhymes with FDR), I saw how change, along with fear of the unknown, drives people to training sessions.

Change leads to overcrowded classes about transgender employees. It packs rooms of HR professionals trying to figure out how to stop sexual harassment claims. It leaves people willfully standing for three-hour workshops to hear the latest guidance on how to handle reasonable accommodation requests for telework.

And I haven’t even mentioned the concern and confusion surrounding the president’s recent civil service-related Executive Orders or plans to reorganize the federal government.

Change can be stressful, unpredictable, and downright scary.

But change can also be, and often is, good.

Agencies should be more inclusive to all employees, and that means educating yourself about transgender workplace issues. We must hold accountable those managers and employees who practice harassment of any type. You’d better know what to do when an employee asks you for a reasonable accommodation.

These new executive orders, at least the ones dealing with performance, actually provide a great opportunity to more efficiently handle poor performers.

And if you think requests for telework are going to decrease anytime soon, I have some Florida swampland to sell you. No, really, I do. It’s a three-bedroom in a nice family neighborhood. Competitively priced. Give me a call.

Embrace that fear of the unknown. Lean into it. As someone much smarter than I said: Change is the only constant in life.

Change has landed me here at FELTG. This is a dream come true. I couldn’t be happier and more excited to work with Bill Wiley and Deb Hopkins, and the uber-talented group of FELTG instructors, including legends Barbara Haga and Ernie Hadley. These fine people work tirelessly to improve the quality and efficiency of the federal workplace. I don’t use the word tirelessly lightly. I’ve seen their schedules.

I also appreciate the chance to continue working with all of you – the faithful civil servants who loyally serve the taxpayers despite sometimes undesirable working conditions and constantly shifting political agendas, all the while ducking the uninformed insults regularly hurled your way.

Let’s step into this change together. It may be challenging, but nobody said we couldn’t have fun while navigating it. Gephart@FELTG.com

EOs: Effective Now or Effective Later?

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By William Wiley, June 26, 2018

So much has been left to interpretation in the three Executive Orders issued by The White House on May 25. That’s just the way it is when something is issued that is as significant and specific as are the changes mandated by the President. Here at FELTG, we’ve been doing a lot of thinking and responding to questions and comments from the FELTG-Nation regarding the meaning of these things. We’ve even resorted to Deep Thoughts to try to figure them out, and deep thinking is not necessarily our strongest suit. With that said, here’s where our evolving EO-interpretation is today:

Effective Date:  There’s a bedrock principle in our civil society that bills become laws the moment they are signed by the President (or a Presidential veto is overridden on Capitol Hill). That protects our citizens from the retroactive application of a law to conduct that was legal prior to the law, and binds us all to the requirements of the law from the date of signing forward. The only main exception to this rule is if the law itself sets an effective date somewhere in the future. The Civil Service Reform Act of 1978 is a relevant example. Although it was signed by President Carter in October 1978, it was written so that it was not effective until 90 days later.

There’s no reason that this timing principle would not apply to an Executive Order. These three EOs were signed by the President on May 25, 2018. They have been effective since that date as there was nothing in the EOs that set a later overall date. Therefore, if you have been giving unacceptably performing employees generally more than 30 days to demonstrate whether they can perform in an acceptable manner since that date (i.e., you issued a 90-day PIP), you have violated the accountability EO.

“But, Bill. Doesn’t the EO say something about 45 days? Don’t we have until July 9 to put all of this into place?” Well, not exactly. The EO says that agencies have until July 9 to adapt their discipline and performance instructions to the requirements of the accountability EO. To my read, that doesn’t mean that agencies are not bound before then. It just gives you six weeks to put the requirements into writing.

Mandates or Objectives:  I’ve heard a number of representatives on both the management and the union side say that the EOs simply lay out bargaining objectives, that there really are no guarantees that the requirements of the EOs will survive the negotiation process and become part of a collective bargaining agreement (CBA). I’ve even had a couple of interesting discussions with practitioners who take the position that the EOs mandate that nothing in the Orders abrogates current CBA provisions that are contra to the EOs; therefore, they cannot be effective immediately.

If this objectives-only approach is taken by an agency, many of the requirements of the EO may not be implemented for years, maybe never if the current CBA is not renegotiated, but is simply extended into the future. Considering the EOs’ requirements to be opening positions for an agency to take in negotiations, rather than policies to be implemented now, prevents the swift implementation of the President’s instructions.

As we’ve spoken about in our webinars analyzing the EOs (there’s still space in tomorrow’s session), in our opinion there is a defensible argument that the mandates of the EOs are effective now and need not be subjected to negotiations. It is black letter law in our business that a CBA can not contain provisions inconsistent with a law or a government-wide regulation. Almost 30 years ago, FLRA held that an EO carries the same weight as a law for the purpose of collective bargaining. See NTEU & Army, 30 FLRA 1046 (1988) (Holding that shalls were “legal” mandates).

If an agency were to take this approach, the Big Brains over in the labor relations office should be combing through the EOs looking for mandates (e.g., the shalls) and separating them from the simply desirables (e.g., the endeavors). For every mandate found, the agency should notify the union that you are immediately changing your policy to conform to a new law-like EO, and are accepting any impact and implementation proposals the union might choose to make. As the EOs say, “Nothing in this EO impairs the authority granted by law to an agency head.” By law, an agency head has the authority to implement a law without negotiating the substance of the law with the union.

Enforceability:  Many of you wonderful readers have some Big Decisions to make over the next few days. What do the EOs really say? Is that comma important, or not? Do we really want to upset the union by unilaterally implementing the mandates in the three EOs? What if we resist the EOs and choose not to implement them, for whatever reasons? Who’s going to care?

Oh, I don’t know. Maybe the PRESIDENT OF THE UNITED STATES? Maybe whoever it is who heads up your agency, who works for the President? Please, oh please, invite us to the meeting in which you tell your political overlords that you advise keeping the union officials on full official time out of fear that the union might file an unfair labor practice charge if you unilaterally act to implement the EO and reduce official time use. That meeting, in comparison, will make cage fighting look like an elementary school game of dodgeball.

You probably have noticed that a number of unions have filed lawsuits to prevent the implementation of these EOs. At least one union has asked a court to issue an injunction to stop EO implementation, something courts usually do only then there is the danger of immediate irreparable harm. Well, if these EOs simply laid out bargaining objectives, issues that ultimately would be resolved through the collective bargaining process, there wouldn’t be any immediate harm, would there? Maybe our friends on the union side are onto something.

EOs aren’t like laws that once they are issued become static and open to varying interpretations. These EOs express the wishes of a single President and have his signature at the bottom of each one. If you’re confused as to what they mean, just ask the President. He has a White House Counsel who speaks for him on things legal. He has a Justice Department that implements his legal wishes. He has a Director of OPM who is supposed to understand what the President wants and then implement regulations to carry out those wishes. If you have a telephone, you don’t have to guess at the answers. Call the guy who issued the darned things and ask, “Hey, what’d you mean in that Union Time EO? Are we supposed to implement that puppy immediately or just try to bargain for those restrictions?” Just be sure to phrase your question so that he can respond in 280 characters, or fewer. That will ensure you a speedy response.

So, get busy. And cancel those plans for a big July 4th holiday vacation. If you’re an agency’s employment lawyer or Human Resources specialist, you have precious little time left to do what the President has told you to do.

Or, to tell him you’re not going to do it. Whooo, doggies; I’m going to bring my first aid kit for that meeting. Wiley@FELTG.com

James Comey was not Insubordinate

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By William Wiley, June 19, 2018

More precisely, the 500+ page OIG report issued last week regarding possible misconduct at DoJ does not establish Comey’s “insubordination.” As everyone who has attended the FELTG MSPB Law Week seminar (next offered September 10-14 in Washington, DC) knows, charges of workplace misconduct have specific legal definitions. The various aspects of a charge definition are known as “elements” of the charge. To prove a charge like insubordination, an agency would have to prove all the following elements:

  • The willful and intentional refusal,
  • To obey an authorized order of a superior,
  • Which the superior is entitled to have obeyed.

Redfearn v. Labor, 58 MSPR 307 (1993)

The report concludes that Comey acted in an insubordinate manner when he took it upon himself to release certain information without telling his supervisor about an investigation into Hillary Clinton’s use of a non-government computer for government work. That, indeed, may have been a bad thing to do. Perhaps (and here at FELTG, we have no dog in this fight) what he did demonstrates poor judgment. However, I can find nothing that says his superior, Attorney General Lynch, had ordered him not to do that. In fact, the executive summary of the report states just the opposite:

While Lynch asked Comey what the subject matter of the statement was going to be (Comey told her in response it would be about the Midyear investigation), she did not ask him to tell her what he intended to say about the Midyear investigation. We found that Lynch, having decided not to recuse herself, retained authority over both the final prosecution decision and the Department’s management of the Midyear investigation. As such, we believe she should have instructed Comey to tell her what he intended to say beforehand and should have discussed it with Comey.

The report concludes that Comey’s supervisor made a mistake by not giving him an authorized order to tell her what he was about to do. She most likely would have been entitled to have that order obeyed had she given the order. However, she did not. Based on these facts alone, Comey cannot be held to be insubordinate for failing to obey an order that his superior did not give.

You, our beloved reader, might be sitting there thinking, “Oh, Bill. You’ve gone off the deep end again. This is being very picky about a trivial hair splitting.” Well, Smarty Pants, just try running this series of events past judges at MSPB and see how quickly they set aside your charge of Insubordination. You don’t got no stinkin’ order? Then, you don’t got no stinkin’ insubordination. Black letter law. Case closed; e.g., Redfearn, supra.

Had the DoJ OIG office called us for advice on how to frame Comey’s misconduct (888-at-FELTG; operators are standing by), we would have recommended charging “Lack of Candor.” The elements of that charge are:

  • A failure to disclose something that should have been disclosed
  • To make a given statement accurate and complete.

Hoofman v. Army, 2012 MSPB 107

And according to a recent decision out of the Federal circuit, Lack of Candor must be “knowing” so there’s your third element. Parkinson v. DoJ, 815 F.3d 757 (Fed. Cir. 2016)

That charge squarely places the responsibility on Comey to tell the Attorney General what he was about to say to the press. This way, he is being charged with something he had the obligation to do, not being charged with something based on what his supervisor should have done.

There are references in the DoJ OIG report to “well-established Department policies” that Comey failed to follow. Well, that’s fine. Charge him with not following agency policies. However, failing to abide by agency policies is NOT insubordination.

Which leads us to a final point we have made before in our FELTG articles. Agency OIG offices do hugely important work. They are filled with smart, hard-working investigators and lawyers who are trying to do the right thing. However, with rare exception, they are not filled with civil service law experts. That’s not a problem when they are called upon to investigate suspected criminal misbehavior, as is often the case in OIG investigations. But, when it comes to investigations of workplace misconduct in a federal agency, the world would be a better place, and their work would be more legally precise, if OIGs involved a specialist in civil service law in their report development.

James Comey may have done things he should not have done. We leave those decisions to individuals at higher paygrades than we hold here at FELTG (GS-zeros). However, any GS-5 trainee in human resources who has attended our FELTG seminars will recognize that Comey’s actions cannot be framed as a charge of Insubordination.  Wiley@FELTG.com

The New Executive Orders and Labor Relations

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By William Wiley, June 5, 2018

As most of our wonderful readers know by now, on May 25 President Trump issued three executive orders to shake up the civil service. One of them primarily was focused on employee accountability for performance and misconduct. As we wrote in another article, those changes were significant, but well within the range of flexibilities already in the system, and already employed by the more progressive agencies for many years.

The other two executive orders were designed to change the world of labor relations in federal agencies. Although the EOs have been characterized in the media as taking away the “rights” of unionized employees, they actually don’t do that. Instead, they primarily lay out a framework for organizing management proposals once collective bargaining commences. Unions still retain their basic rights under law; the executive orders direct where management is supposed to take a contrary position consistent with an “effective and efficient Government.”

Here are the primary changes:

  • “Official time” is now called “taxpayer-funded union time.”
  • Agencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using it.
  • Agencies should strive for a negotiated union time rate of 1 hour or less (here are FELTG, we don’t know what this means).
  • Employees may not engage in lobbying activities during official time.
  • Union reps must work 75% of the year in their regular jobs.
  • No free use of agency facilities or property by the union.
  • No reimbursement for expenses incurred performing union activities.
  • No official time to pursue union grievances.
  • OK to use official time to prepare grievances brought by an employee or to appear as a witness.
  • Agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.
  • The parties should adhere to negotiating period of 6 weeks or less to achieve ground rules, and a negotiating period of between 4 and 6 months for a term CBA under those ground rules.
  • The agency head shall notify the President of any negotiations that last longer than 9 months.
  • A Labor Relations Group shall consist of the OPM Director and staff and representatives of participating agencies determined by their agency head in consultation with OPM.
  • The OPM Director shall chair the Labor Relations Group and provide administrative support for the Labor Relations Group.
  • Agencies with at least 1,000 employees represented by a collective bargaining representative shall participate in the Labor Relations Group. Responsibilities:
    • Gathering information to support agency negotiating efforts and creating an inventory of language on significant subjects of bargaining that have relevance to more than one agency and that have been proposed for inclusion in at least one term CBA.
    • Developing model ground rules for negotiations that, if implemented, would minimize delay and set reasonable limits for good-faith negotiations.
    • Analyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights.
  • The analysis should include an assessment of CBA provisions that cover comparable subjects, without infringing on reserved management rights.
  • The analysis should also assess the consequences of such CBA provisions on information sharing and analysis, including significant proposals and counter-proposals offered in bargaining.
    • Establishing ongoing communications among agencies engaging with the same labor organizations, and
    • Assisting the OPM Director in developing Government-wide approaches to bargaining issues that advance the policies set forth in the order.
  • This one is HUGE: Management should endeavor to bargain with the union so that employees cannot grieve removals to an arbitrator.

There are a lot of words and terms put forth as mandatory, but in reality, have squishy meaning in application:

  • Interpreted in a manner consistent with the requirement of an effective and efficient Government
  • Reasonable time
  • Promptly
  • Minimize delay
  • Timely manner
  • Expeditiously
  • Reasonable, necessary, and in the public interest

Also, there are time limits for implementation, reports to be made, and authorities assigned. You’ll have to read the full EOs to get the details and the flavor of what the White House is directing to be done. Be that as it may, if you are a management official the above are your goals and requirements for your collective bargaining relationship with your union, so you’d better get hopping if you want this to be done in a “timely manner.”

Here at FELTG, we’ve now given you two summaries relative to the three new EOs. In our third piece regarding these significant changes directed by the White House, we’ll discuss the legality of the requirements of the EOs (we’ve already spotted one illegal provision) and the enforceability of the requirements. We’ll try to get around to that just as soon as our respective heads stop spinning from trying to digest everything that’s going on here. It’s one thing to put out orders; it’s another to be able to enforce those orders (those of you with children know exactly of what I speak).

Some years, our business of civil service law is relatively boring. This is not one of them. Hang in there. We’re with you every step of the way. Wiley@FELTG.com

Executive Order: DEVELOPING EFFICIENT, EFFECTIVE, AND COST-REDUCING APPROACHES TO FEDERAL SECTOR COLLECTIVE BARGAINING

THE WHITE HOUSE

Office of the Press Secretary

FOR IMMEDIATE RELEASE

May 25, 2018

EXECUTIVE ORDER

– – – – – – –

DEVELOPING EFFICIENT, EFFECTIVE, AND COST-REDUCING

APPROACHES TO FEDERAL SECTOR COLLECTIVE BARGAINING

 

      By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to assist executive departments and agencies (agencies) in developing efficient, effective, and cost-reducing collective bargaining agreements (CBAs), as described in chapter 71 of title 5, United States Code, it is hereby ordered as follows:

      Section 1.  Policy.  (a)  Section 7101(b) of title 5, United States Code, requires the Federal Service Labor‑Management Relations Statute (the Statute) to be interpreted in a manner consistent with the requirement of an effective and efficient Government.  Unfortunately, implementation of the Statute has fallen short of these goals.  CBAs, and other agency agreements with collective bargaining representatives, often make it harder for agencies to reward high performers, hold low-performers accountable, or flexibly respond to operational needs.  Many agencies and collective bargaining representatives spend years renegotiating CBAs, with taxpayers paying for both sides’ negotiators.  Agencies must also engage in prolonged negotiations before making even minor operational changes, like relocating office space.

      (b)  The Federal Government must do more to apply the Statute in a manner consistent with effective and efficient Government.  To fulfill this obligation, agencies should secure CBAs that:  promote an effective and efficient means of accomplishing agency missions; encourage the highest levels of employee performance and ethical conduct; ensure employees are accountable for their conduct and performance on the job; expand agency flexibility to address operational needs; reduce the cost of agency operations, including with respect to the use of taxpayer-funded union time; are consistent with applicable laws, rules, and regulations; do not cover matters that are not, by law, subject to bargaining; and preserve management rights under section 7106(a) of title 5, United States Code (management rights).  Further, agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.

      Sec. 2.  Definitions.  For purposes of this order:

      (a)  The phrase “term CBA” means a CBA of a fixed or indefinite duration reached through substantive bargaining, as opposed to (i) agreements reached through impact and implementation bargaining pursuant to sections 7106(b)(2) and 7106(b)(3) of title 5, United States Code, or (ii) mid-term agreements, negotiated while the basic comprehensive labor contract is in effect, about subjects not included in such contract.

      (b)  The phrase “taxpayer-funded union time” means time granted to a Federal employee to perform non-agency business during duty hours pursuant to section 7131 of title 5, United States Code.

      Sec. 3.  Interagency Labor Relations Working Group.  (a) There is hereby established an Interagency Labor Relations Working Group (Labor Relations Group).

      (b)  Organization.  The Labor Relations Group shall consist of the Director of the Office of Personnel Management (OPM Director), representatives of participating agencies determined by their agency head in consultation with the OPM Director, and OPM staff assigned by the OPM Director.  The OPM Director shall chair the Labor Relations Group and, subject to the availability of appropriations and to the extent permitted by law, provide administrative support for the Labor Relations Group.

      (c)  Agencies.  Agencies with at least 1,000 employees represented by a collective bargaining representative pursuant to chapter 71 of title 5, United States Code, shall participate in the Labor Relations Group.  Agencies with a smaller number of employees represented by a collective bargaining representative may, at the election of their agency head and with the concurrence of the OPM Director, participate in the Labor Relations Group.  Agencies participating in the Labor Relations Group shall provide assistance helpful in carrying out the responsibilities outlined in subsection (d) of this section.  Such assistance shall include designating an agency employee to serve as a point of contact with OPM responsible for providing the Labor Relations Group with sample language for proposals and counter-proposals on significant matters proposed for inclusion in term CBAs, as well as for analyzing and discussing with OPM and the Labor Relations Group the effects of significant CBA provisions on agency effectiveness and efficiency.  Participating agencies should provide other assistance as necessary to support the Labor Relations Group in its mission.

      (d)  Responsibilities and Functions.  The Labor Relations Group shall assist the OPM Director on matters involving labor‑management relations in the executive branch.  To the extent permitted by law, its responsibilities shall include the following:

           (i)    Gathering information to support agency negotiating efforts, including the submissions required under section 8 of this order, and creating an inventory of language on significant subjects of bargaining that have relevance to more than one agency and that have been proposed for inclusion in at least one term CBA;

           (ii)   Developing model ground rules for negotiations that, if implemented, would minimize delay, set reasonable limits for good-faith negotiations, call for Federal Mediation and Conciliation Service (FMCS) to mediate disputed issues not resolved within a reasonable time, and, as appropriate, promptly bring remaining unresolved issues to the Federal Service Impasses Panel (the Panel) for resolution;

           (iii)  Analyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights.  Such analysis should include an assessment of term CBA provisions that cover comparable subjects, without infringing, or otherwise affecting, reserved management rights.  The analysis should also assess the consequences of such CBA provisions on Federal effectiveness, efficiency, cost of operations, and employee accountability and performance.  The analysis should take particular note of how certain provisions may impede the policies set forth in section 1 of this order or the orderly implementation of laws, rules, or regulations.  The Labor Relations Group may examine general trends and commonalities across term CBAs, and their effects on bargaining-unit operations, but need not separately analyze every provision of each CBA in every Federal bargaining unit;

           (iv)   Sharing information and analysis, as appropriate and permitted by law, including significant proposals and counter-proposals offered in bargaining, in order to reduce duplication of efforts and encourage common approaches across agencies, as appropriate;

           (v)    Establishing ongoing communications among agencies engaging with the same labor organizations in order to facilitate common solutions to common bargaining initiatives; and

           (vi)   Assisting the OPM Director in developing, where appropriate, Government-wide approaches to bargaining issues that advance the policies set forth in section 1 of this order.

      (e)  Within 18 months of the first meeting of the Labor Relations Group, the OPM Director, as the Chair of the group, shall submit to the President, through the Office of Management and Budget (OMB), a report proposing recommendations for meeting the goals set forth in section 1 of this order and for improving the organization, structure, and functioning of labor relations programs across agencies.

      Sec. 4.  Collective Bargaining Objectives.  (a)  The head of each agency that engages in collective bargaining under chapter 71 of title 5, United States Code, shall direct appropriate officials within each agency to prepare a report on all operative term CBAs at least 1 year before their expiration or renewal date.  The report shall recommend new or revised CBA language the agency could seek to include in a renegotiated agreement that would better support the objectives of section 1 of this order.  The officials preparing the report shall consider the analysis and advice of the Labor Relations Group in making recommendations for revisions.  To the extent permitted by law, these reports shall be deemed guidance and advice for agency management related to collective bargaining under section 7114(b)(4)(C) of title 5, United States Code, and thus not subject to disclosure to the exclusive representative or its authorized representative.

      (b)  Consistent with the requirements and provisions of chapter 71 of title 5, United States Code, and other applicable laws and regulations, an agency, when negotiating with a collective bargaining representative, shall:

           (i)    establish collective bargaining objectives that advance the policies of section 1 of this order, with such objectives informed, as appropriate, by the reports required by subsection (a) of this section;

           (ii)   consider the analysis and advice of the Labor Relations Group in establishing these collective bargaining objectives and when evaluating collective bargaining representative proposals;

           (iii)  make every effort to secure a CBA that meets these objectives; and

           (iv)   ensure management and supervisor participation in the negotiating team representing the agency.

      Sec. 5.  Collective Bargaining Procedures.  (a)  To achieve the purposes of this order, agencies shall begin collective bargaining negotiations by making their best effort to negotiate ground rules that minimize delay, set reasonable time limits for good-faith negotiations, call for FMCS mediation of disputed issues not resolved within those time limits, and, as appropriate, promptly bring remaining unresolved issues to the Panel for resolution.  For collective bargaining negotiations, a negotiating period of 6 weeks or less to achieve ground rules, and a negotiating period of between 4 and 6 months for a term CBA under those ground rules, should ordinarily be considered reasonable and to satisfy the “effective and efficient” goal set forth in section 1 of this order.  Agencies shall commit the time and resources necessary to satisfy these temporal objectives and to fulfill their obligation to bargain in good faith.  Any negotiations to establish ground rules that do not conclude after a reasonable period should, to the extent permitted by law, be expeditiously advanced to mediation and, as necessary, to the Panel.

      (b)  During any collective bargaining negotiations under chapter 71 of title 5, United States Code, and consistent with section 7114(b) of that chapter, the agency shall negotiate in good faith to reach agreement on a term CBA, memorandum of understanding (MOU), or any other type of binding agreement that promotes the policies outlined in section 1 of this order.  If such negotiations last longer than the period established by the CBA ground rules — or, absent a pre-set deadline, a reasonable time — the agency shall consider whether requesting assistance from the FMCS and, as appropriate, the Panel, would better promote effective and efficient Government than would continuing negotiations.  Such consideration should evaluate the likelihood that continuing negotiations without FMCS assistance or referral to the Panel would produce an agreement consistent with the goals of section 1 of this order, as well as the cost to the public of continuing to pay for both agency and collective bargaining representative negotiating teams.  Upon the conclusion of the sixth month of any negotiation, the agency head shall receive notice from appropriate agency staff and shall receive monthly notifications thereafter regarding the status of negotiations until they are complete.  The agency head shall notify the President through OPM of any negotiations that have lasted longer than 9 months, in which the assistance of the FMCS either has not been requested or, if requested, has not resulted in agreement or advancement to the Panel.

      (c)  If the commencement or any other stage of bargaining is delayed or impeded because of a collective bargaining representative’s failure to comply with the duty to negotiate in good faith pursuant to section 7114(b) of title 5, United States Code, the agency shall, consistent with applicable law consider whether to:

           (i)   file an unfair labor practice (ULP) complaint under section 7118 of title 5, United States Code, after considering evidence of bad-faith negotiating, including refusal to meet to bargain, refusal to meet as frequently as necessary, refusal to submit proposals or counterproposals, undue delays in bargaining, undue delays in submission of proposals or counterproposals, inadequate preparation for bargaining, and other conduct that constitutes bad‑faith negotiating; or

           (ii)  propose a new contract, memorandum, or other change in agency policy and implement that proposal if the collective bargaining representative does not offer counter-proposals in a timely manner.

      (d)  An agency’s filing of a ULP complaint against a collective bargaining representative shall not further delay negotiations.  Agencies shall negotiate in good faith or request assistance from the FMCS and, as appropriate, the Panel, while a ULP complaint is pending.

      (e)  In developing proposed ground rules, and during any negotiations, agency negotiators shall request the exchange of written proposals, so as to facilitate resolution of negotiability issues and assess the likely effect of specific proposals on agency operations and management rights.  To the extent that an agency’s CBAs, ground rules, or other agreements contain requirements for a bargaining approach other than the exchange of written proposals addressing specific issues, the agency should, at the soonest opportunity, take steps to eliminate them.  If such requirements are based on now-revoked Executive Orders, including Executive Order 12871 of October 1, 1993 (Labor-Management Partnerships) and Executive Order 13522 of December 9, 2009 (Creating Labor-Management Forums to Improve Delivery of Government Services), agencies shall take action, consistent with applicable law, to rescind these requirements.

      (f)  Pursuant to section 7114(c)(2) of title 5, United States Code, the agency head shall review all binding agreements with collective bargaining representatives to ensure that all their provisions are consistent with all applicable laws, rules, and regulations.  When conducting this review, the agency head shall ascertain whether the agreement contains any provisions concerning subjects that are non-negotiable, including provisions that violate Government-wide requirements set forth in any applicable Executive Order or any other applicable Presidential directive.  If an agreement contains any such provisions, the agency head shall disapprove such provisions, consistent with applicable law.  The agency head shall take all practicable steps to render the determinations required by this subsection within 30 days of the date the agreement is executed, in accordance with section 7114(c) of title 5, United States Code, so as not to permit any part of an agreement to become effective that is contrary to applicable law, rule, or regulation.

      Sec. 6.  Permissive Bargaining.  The heads of agencies subject to the provisions of chapter 71 of title 5, United States Code, may not negotiate over the substance of the subjects set forth in section 7106(b)(1) of title 5, United States Code, and shall instruct subordinate officials that they may not negotiate over those same subjects.

      Sec. 7.  Efficient Bargaining over Procedures and Appropriate Arrangements.  (a)  Before beginning negotiations during a term CBA over matters addressed by sections 7106(b)(2) or 7106(b)(3) of title 5, United States Code, agencies shall evaluate whether or not such matters are already covered by the term CBA and therefore are not subject to the duty to bargain.  If such matters are already covered by a term CBA, the agency shall not bargain over such matters.

      (b)  Consistent with section 1 of this order, agencies that engage in bargaining over procedures pursuant to section 7106(b)(2) of title 5, United States Code, shall, consistent with their obligation to negotiate in good faith, bargain over only those items that constitute procedures associated with the exercise of management rights, which do not include measures that excessively interfere with the exercise of such rights.  Likewise, consistent with section 1 of this order, agencies that engage in bargaining over appropriate arrangements pursuant to section 7106(b)(3) of title 5, United States Code, shall, consistent with their obligation to negotiate in good faith, bargain over only those items that constitute appropriate arrangements for employees adversely affected by the exercise of management rights.  In such negotiations, agencies shall ensure that a resulting appropriate arrangement does not excessively interfere with the exercise of management rights.

      Sec. 8.  Public Accessibility.  (a)  Each agency subject to chapter 71 of title 5, United States Code, that engages in any negotiation with a collective bargaining representative, as defined therein, shall submit to the OPM Director each term CBA currently in effect and its expiration date.  Such agency shall also submit any new term CBA and its expiration date to the OPM Director within 30 days of its effective date, and submit new arbitral awards to the OPM Director within 10 business days of receipt.  The OPM Director shall make each term CBA publicly accessible on the Internet as soon as practicable.

      (b)  Within 90 days of the date of this order, the OPM Director shall prescribe a reporting format for submissions required by subsection (a) of this section.  Within 30 days of the OPM Director’s having prescribed the reporting format, agencies shall use this reporting format and make the submissions required under subsection (a) of this section.

      Sec. 9.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

           (i)   the authority granted by law to an executive department or agency, or the head thereof; or

           (ii)  the functions of the OMB Director relating to budgetary, administrative, or legislative proposals.

      (b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

      (c)  Nothing in this order shall abrogate any CBA in effect on the date of this order.

      (d)  The failure to produce a report for the agency head prior to the termination or renewal of a CBA under section 4(a) of this order shall not prevent an agency from opening a CBA for renegotiation.

      (e)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

    May 25, 2018.

What You Need to Know About the New EOs

,

By William Wiley, May 29, 2018

Wow, what a news dump Friday late. On Saturday, it was above the fold on page 1 of the Washington Post; it was above the fold, page 1 of the New York Times; and the PBS News Hour called it the most significant change to our civil service in over a generation. Who knew that President Trump’s three new Executive Orders issued last week would cause such a stir in the media? “Unprecedented changes by which the White House has made it easier to fire bad federal workers by curbing their protections.”

And they are all wrong.

Yes, the President issued three new Executive Orders related to the civil service last week. And, yes, they are significant. But they do not – repeat, do not – curb existing civil service protections or really create very much that is new at all.

However, what they do for you and to you is mandate the government-wide exercise of existing flexibilities in the civil service laws that have always been there and which some forward-looking agencies have been doing for decades. You have to read the Executive Orders themselves to get the full feel of what is being ordered for the Executive Branch by the President. However, until you get a chance to do that, here’s a summary of what you need to start doing now to be in compliance with the orders:

Unacceptable Performance

The White House has concluded that a number of agencies have not been acting fast enough to deal with non-performers. In our FELTG opinion, the White House is right. If you are a management official in human resources or legal in a federal agency, you are to immediately change your practice to conform with the following:

  • The Executive Order drops the concept of an “improvement” period and instead has begun to use the legally-correct term of “demonstration” period. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job. This movement in concept corrects the error that OPM made back in the early 80s when it created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance. Forward-looking agencies such as HHS have already moved in this direction by dropping the acronym “PIP” and describing the period as an “Opportunity to Demonstrate Acceptable Performance.”
  • In understanding that the period is to “demonstrate,” not necessarily “improve,” the EO requires agencies to limit these periods to 30 days. That change will be a great relief to federal supervisors who often are told that the performance period should be 60, 90, or even 120 days in length. One participant in a FELTG seminar earlier this year told us that his HR advisor advised him that the period had to be six months long. Woof. No wonder so many supervisors think it is hard to fire poor performers.

This mandate for a government-wide approach to poor performance is not a curbing of employee protections. The protections are the same as they have been since 1979. It is simply a recognition that some agencies have strayed from the concept of the efficient handling of a performance problem and directing that they focus on getting the job done more quickly while simultaneously honoring the statutory protections of most all federal employees.

Adverse Actions

We use the Unacceptable Performance procedures for holding employees accountable for meeting their performance standards. We use the Adverse Action procedures for holding employees accountable for adhering to workplace rules. The EOs require that agencies change their procedures for firing employees who engage in misconduct in the following manner:

  • Make it clear that while progressive discipline is a factor to be considered in whether an employee should be fired on the occasion of new misconduct, it is not a mandatory requirement to engage in progressive discipline prior to removing someone. Although this has always been the law, some in the media have misunderstood the concept and have claimed that civil servants cannot be fired without progressive discipline.
  • Clarified that past disciple is an aggravating factor in selecting a penalty for current misconduct even if it is for a different type of misconduct. For example, a prior Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL as would be a prior Reprimand for AWOL. Recent MSPB decisions issued by Board members appointed by the previous administration have discounted prior discipline if it was different from the current misconduct. The EO corrects that unwarranted drift in our case law.
  • As many of you readers know, the majority of Board members serving in the previous administration came up with a concept that drove us all crazy: The Terrible Trilogy. Those three cases issued in 2010 abandoned decades of case law that held otherwise and ordered that agencies discipline all employees at the same level for the same misconduct throughout the agency. Given that this is a physical impossibility and not helpful at all in holding employees accountable, we all suffered mightily. Goodness knows this newsletter whined long and loud about the damage being caused by the Trilogy. The EO makes it clear that this is not to be the rule in the future. Deciding officials will be able once again to discipline employees independently, not restricted by the discipline meted out to other employees by other deciding officials.
  • When a supervisor decides that an employee should be fired for misconduct or performance, she has to give the employee notice that she is proposing the removal. The employee then has at least seven days to defend himself by responding to the notice. The deciding official can issue a decision any time after the employee responds. Unfortunately, some agencies have been waiting weeks, months, and occasionally years to issue these decisions. Now these decisions must be issued within 15 business days.
  • The 7-day notice period, above, can be extended to no more than 30 days under the EO.

Labor Relations

Two of the three EOs deal specifically with employees in a collective bargaining unit. We’ll address those significant changes in a later article.

For those of you who have been regular readers of our FELTG newsletter and have attended our FELTG seminars over the years, these changes will look very familiar. We have routinely cajoled, begged, and lectured agency HR and legal officials to approach accountability in this manner. We have strongly criticized MSPB when it has varied from these core concepts. Have the President’s advisors been reading the FELTG newsletter? Have they consumed our textbook UnCivil Servant? Have they sat in our seminars, hiding their identities, and soaking up all this good stuff as we dished it out? Or, maybe they actually contacted us and asked for our opinion as to how things could be improved within the current system without the need for new laws?

Well, aren’t you the inquisitive one, My Pretty. Unfortunately, some things have to remain private, for national security reasons. However it happened, you’d better start coming to our seminars and tuning into our webinars if you want to be on the cutting edge of the evolution of federal employment law. Whether we are steering it or just guessing where its going, there’s nobody else out there who can get you this close to the future of our business. Wiley@FELTG.com.

Read the full text of the EO here.

Join FELTG for a webinar on the new EOs on June 13. Register here.

Executive Order: PROMOTING ACCOUNTABILITY AND STREAMLINING REMOVAL PROCEDURES CONSISTENT WITH MERIT SYSTEM PRINCIPLES

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 1104(a)(1), 3301, and 7301 of title 5, United States Code, and section 301 of title 3, United States Code, and to ensure the effective functioning of the executive branch, it is hereby ordered as follows:

      Section 1.  Purpose.  Merit system principles call for holding Federal employees accountable for performance and conduct.  They state that employees should maintain high standards of integrity, conduct, and concern for the public interest, and that the Federal workforce should be used efficiently and effectively.  They further state that employees should be retained based on the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.  Unfortunately, implementation of America’s civil service laws has fallen far short of these ideals.  The Federal Employee Viewpoint Survey has consistently found that less than one-third of Federal employees believe that the Government deals with poor performers effectively.  Failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) (agencies) to accomplish their missions.  This order advances the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.

      Sec. 2.  Principles for Accountability in the Federal Workforce.  (a)  Removing unacceptable performers should be a straightforward process that minimizes the burden on supervisors.  Agencies should limit opportunity periods to demonstrate acceptable performance under section 4302(c)(6) of title 5, United States Code, to the amount of time that provides sufficient opportunity to demonstrate acceptable performance.

      (b)  Supervisors and deciding officials should not be required to use progressive discipline.  The penalty for an instance of misconduct should be tailored to the facts and circumstances.

      (c)  Each employee’s work performance and disciplinary history is unique, and disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation.  Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time — particularly where the employees are in different work units or chains of supervision — and agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.  Nonetheless, employees should be treated equitably, so agencies should consider appropriate comparators as they evaluate potential disciplinary actions.

      (d)  Suspension should not be a substitute for removal in circumstances in which removal would be appropriate.  Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts.

      (e)  When taking disciplinary action, agencies should have discretion to take into account an employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.  Agencies should provide an employee with appropriate notice when taking a disciplinary action.

      (f)  To the extent practicable, agencies should issue decisions on proposed removals taken under chapter 75 of title 5, United States Code, within 15 business days of the end of the employee reply period following a notice of proposed removal. 

      (g)  To the extent practicable, agencies should limit the written notice of adverse action to the 30 days prescribed in section 7513(b)(1) of title 5, United States Code. 

      (h)  The removal procedures set forth in chapter 75 of title 5, United States Code (Chapter 75 procedures), should be used in appropriate cases to address instances of unacceptable performance.

      (i)  A probationary period should be used as the final step in the hiring process of a new employee.  Supervisors should use that period to assess how well an employee can perform the duties of a job.  A probationary period can be a highly effective tool to evaluate a candidate’s potential to be an asset to an agency before the candidate’s appointment becomes final.

      (j)  Following issuance of regulations under section 7 of this order, agencies should prioritize performance over length of service when determining which employees will be retained following a reduction in force.

      Sec. 3.  Standard for Negotiating Grievance Procedures.  Whenever reasonable in view of the particular circumstances, agency heads shall endeavor to exclude from the application of any grievance procedures negotiated under section 7121 of title 5, United States Code, any dispute concerning decisions to remove any employee from Federal service for misconduct or unacceptable performance.  Each agency shall commit the time and resources necessary to achieve this goal and to fulfill its obligation to bargain in good faith.  If an agreement cannot be reached, the agency shall, to the extent permitted by law, promptly request the assistance of the Federal Mediation and Conciliation Service and, as necessary, the Federal Service Impasses Panel in the resolution of the disagreement.  Within 30 days after the adoption of any collective bargaining agreement that fails to achieve this goal, the agency head shall provide an explanation to the President, through the Director of the Office of Personnel Management (OPM Director). 

      Sec. 4.  Managing the Federal Workforce.  To promote good morale in the Federal workforce, employee accountability, and high performance, and to ensure the effective and efficient accomplishment of agency missions and the efficiency of the Federal service, to the extent consistent with law, no agency shall:

      (a)  subject to grievance procedures or binding arbitration disputes concerning:

(i)   the assignment of ratings of record; or 

(ii)  the award of any form of incentive pay, including cash awards; quality step increases; or recruitment, retention, or relocation payments; 

      (b)  make any agreement, including a collective bargaining agreement:

(i)   that limits the agency’s discretion to employ Chapter 75 procedures to address unacceptable performance of an employee;

(ii)  that requires the use of procedures under chapter 43 of title 5, United States Code (including any performance assistance period or similar informal period to demonstrate improved performance prior to the initiation of an opportunity period under section 4302(c)(6) of title 5, United States Code), before removing an employee for unacceptable performance; or

(iii) that limits the agency’s discretion to remove an employee from Federal service without first engaging in progressive discipline; or

      (c)  generally afford an employee more than a 30-day period to demonstrate acceptable performance under section 4302(c)(6) of title 5, United States Code, except when the agency determines in its sole and exclusive discretion that a longer period is necessary to provide sufficient time to evaluate an employee’s performance. 

      Sec. 5.  Ensuring Integrity of Personnel Files.  Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.

      Sec. 6.  Data Collection of Adverse Actions.  (a)  For fiscal year 2018, and for each fiscal year thereafter, each agency shall provide a report to the OPM Director containing the following information:

(i)     the number of civilian employees in a probationary period or otherwise employed for a specific term who were removed by the agency;

(ii)    the number of civilian employees reprimanded in writing by the agency;

(iii)   the number of civilian employees afforded an opportunity period by the agency under section 4302(c)(6) of title 5, United States Code, breaking out the number of such employees receiving an opportunity period longer than 30 days;

(iv)    the number of adverse personnel actions taken against civilian employees by the agency, broken down by type of adverse personnel action, including reduction in grade or pay (or equivalent), suspension, and removal;

(v)     the number of decisions on proposed removals by the agency taken under chapter 75 of title 5, United States Code, not issued within 15 business days of the end of the employee reply period; 

(vi)    the number of adverse personnel actions by the agency for which employees received written notice in excess of the 30 days prescribed in section 7513(b)(1) of title 5, United States Code;

(vii)   the number and key terms of settlements reached by the agency with civilian employees in cases arising out of adverse personnel actions; and

(viii)  the resolutions of litigation about adverse personnel actions involving civilian employees reached by the agency.

      (b)  Compilation and submission of the data required by subsection (a) of this section shall be conducted in accordance with all applicable laws, including those governing privacy and data security.

      (c)  To enhance public accountability of agencies for their management of the Federal workforce, the OPM Director shall, consistent with applicable law, publish the information received under subsection (a) of this section, at the minimum level of aggregation necessary to protect personal privacy.  The OPM Director may withhold particular information if publication would unduly risk disclosing information protected by law, including personally identifiable information.

      (d)  Within 60 days of the date of this order, the OPM Director shall issue guidance regarding the implementation of this section, including with respect to any exemptions necessary for compliance with applicable law and the reporting format for submissions required by subsection (a) of this section.

      Sec. 7.  Implementation.  (a)  Within 45 days of the date of this order, the OPM Director shall examine whether existing regulations effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.  To the extent necessary or appropriate, the OPM Director shall, as soon as practicable, propose for notice and public comment appropriate regulations to effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.

      (b)  The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order.  To the extent consistent with law, each agency head shall:

(i)   within 45 days of this order, revise its discipline and unacceptable performance policies to conform to the principles and requirements of this order, in areas where new final Office of Personnel Management (OPM) regulations are not required, and shall further revise such policies as necessary to conform to any new final OPM regulations, within 45 days of the issuance of such regulations; and

(ii)  renegotiate, as applicable, any collective bargaining agreement provisions that are inconsistent with any part of this order or any final OPM regulations promulgated pursuant to this order.  Each agency shall give any contractually required notice of its intent to alter the terms of such agreement and reopen negotiations.  Each agency shall, to the extent consistent with law, subsequently conform such terms to the requirements of this order, and to any final OPM regulations issued pursuant to this order, on the earliest practicable date permitted by law.

      (c)  Within 15 months of the adoption of any final rules issued pursuant to subsection (a) of this section, the OPM Director shall submit to the President a report, through the Director of the Office of Management and Budget, evaluating the effect of those rules, including their effect on the ability of Federal supervisors to hold employees accountable for their performance. 

      (d)  Within a reasonable amount of time following the adoption of any final rules issued pursuant to subsection (a) of this section, the OPM Director and the Chief Human Capital Officers Council shall undertake a Government-wide initiative to educate Federal supervisors about holding employees accountable for unacceptable performance or misconduct under those rules.

      Sec. 8.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

      (b)  Agencies shall consult with employee labor representatives about the implementation of this order.  Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order. 

      (c)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

      (d)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(e)  If any provision of this order, including any of its applications, is held to be invalid, the remainder of this order and all of its other applications shall not be affected thereby. 

 

DONALD J. TRUMP

 

THE WHITE HOUSE,

    May 25, 2018.