Think About This Before It Happens to You

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By William Wiley, May 22, 2018

MSPB just established a new policy. You need to know it and decide what to do before you are called on to act on short notice.

As most all Board practitioners are aware, MSPB HQ has effectively been shut down since January 6, 2017. On that date, one of the two remaining Board members unceremoniously resigned before her term was up, leaving the Board with only one member and thereby without a quorum. MSPB quorums are essential to the Board being able to act. The three-membered Board, comprised of Presidential appointees, gets involved when either the firing agency or the fired former-employee files a Petition for Review (PFR) challenging the initial decision of an MSPB administrative judge (AJ). A single member cannot issue a final Opinion and Order to resolve a pending PFR. It takes two to tango; it takes two to adjudicate PFRs.

Many actions related to case handling taken by the Board require agreement among the Board members. No single Board member, with rare exception, has the independent authority to do much when it comes to the resolution of PFRs. The challenge this approach has caused has been magnified by the day-by-day growth of the pending PFR decision backlog for the past 16+ months. If you are a wrongly fired employee, every day that your case is not resolved is potentially one more day you don’t pay your rent, or eat, or can’t hold your head up at dinner with the family.

Hypothetically, the judge ruled against you in the fall of 2016. You filed your PFR challenging the judge’s misplaced initial decision, and began to wait for a Board decision on your appeal. In normal times, that wait would have been around six months – sometimes a bit more, sometimes a little less. However, being the smart appellant you are, about last spring you begin to realize that you aren’t going to be getting a decision on your PFR anytime soon. You decide that enough is enough, and file a motion to withdraw your pending PFR, formally asking the Board to dismiss your appeal. Better to be out of that mess than stuck there indefinitely, you might be reasoning.

But, wait! Your PFR is pending with a quorum-less impotent Board. If MSPB lacks the legal authority to issue any decisions, arguably it lacks the legal authority to grant your motion to dismiss your PFR. That two-to-tango thing might well apply to cases pending at MSPB HQ whether they are to be dismissed as withdrawn or ruled on in a decision. Maybe the single remaining Board member just can’t do anything.

Well, perhaps relief is in sight. MSPB just announced a policy that even with just a single member seated, the Board’s Clerk can grant motions to dismiss pending PFRs if:

  • The motion to withdraw is not based on a settlement;
  • It is unopposed by the other party; and
  • It is timely filed.

It appears that there might be some light at the end of the tunnel for parties to PFRs who are tired of waiting on a decision. But, wait! (Again.) What does “timely filed” mean? There’s nothing in the Board’s regulations that sets a time limit for filing a Motion to Withdraw. Will the Clerk use the time limits for filing the initial appeal documents? That doesn’t help the poor schleps who have been sitting at the Board for over a year, waiting on their government to act. And what does a withdrawn PFR do for the withdrawing party? Can an appellant whose PFR is withdrawn now file with the US Federal Circuit Court of Appeals, thereby challenging the AJ’s decision? Aren’t the time limits for that based on the date of the judge’s initial decision or a Board final Opinion and Order?  The drop-dead date for appealing to the Federal Circuit based on the judge’s initial decision has long passed in most cases, and a Clerk’s dismissal based on a Motion to Withdraw doesn’t feel like a final Board Opinion and Order. Finally, is this new policy even legal? Lordy, I hope so, ’cause if it’s not, we’re looking at some pretty messed up cases should this thing be overturned a couple of years down the road.

It appears to us here at FELTG that there are some questions yet to be answered relative to this new policy. However, it is a policy in force right now, so be aware and be prepared. For example, if you are an agency representative in a pending PFR case, will you object if the appellant who filed the PFR asks that it be dismissed? How would a dismissal be to your advantage?

Alternatively, what if the judge set aside your removal in the initial decision and you filed the PFR? Why would you withdraw your appeal? You’ve already restored the employee to interim paid employment. Is it worth it to give up your chance to be heard by a Trump-appointed Board to roll the dice and see if OPM and DoJ will support your appealing to the Federal Circuit? Even if so, will the Federal Circuit find your appeal there to be timely filed?

The leadership of the Board is to be commended for trying to do something (anything) to reduce the pain being suffered by agencies and appellants who are stuck in the backed-up toilet of PFR adjudication. Our FELTG guesstimate is that as of today there are about 1050 cases sitting there at Board HQ on M Street NW, waiting on just one more signature by a new member to be resolved. Although the President in March nominated two new Board members who will resolve the no-quorum dilemma, the Senate has not scheduled the predicate hearing necessary to get a vote on the nominees. And as all you Hill Observers out there know, if it doesn’t happen by mid-July on Capitol Hill, it ain’t gonna happen until the frost is on the pumpkin in the fall.

Sometimes we have more questions than answers, and this is one of those times. But that doesn’t mean you can wait on the answers. Get those great minds at your agency (or in your union) on a teleconference, discuss the pros and cons of withdrawing pending appeals, and make a smart decision about to what to do now, before it’s necessary to act. Wiley@FELTG.com

How to Measure the Unmeasurable

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By William Wiley, May 1, 2018

Here’s a question that sometimes comes up in one of our performance management seminars:

How do I hold an employee accountable through the performance management process for performance expectations like respectfulness, professionalism, or team work? I know them when I see them, but I don’t know how to evaluate things like this.

Ah, life. If there was just some machine we could press against an employee’s forehead and get readings on things like this: “Wiley, you’re reading out at a 3.2 this morning on respectful attitude. Better work on that. And drop back by the office on the way home so I can take a close out reading for the day. Performance management is very important in our office.” Hey, Mark Zuckerberg. If you’re looking for something new to invent now that they’re closing down Facebook, maybe work on an Attitude-o-Meter.

Until we get some high-tech equipment involved, we’ll have to rely on another approach. And here it is.

When trying to hold an employee accountable for something difficult to measure – like “professionalism” – ask yourself, “How do I know when the employee is acting professionally?” In other words, what behaviors do you see (hear, smell, taste, or feel) that say to you that the employee is acting professionally? Does he participate in controversial meetings respectfully and cooperatively? Does he dress at a level commensurate with his job assignments? Is he on time for appointments and prepared for discussions? If these say “professional” to you, then you now have something you can observe. And if you can observe, you can count. And if you can count, you can hold the employee accountable (that’s why the word “count” is right in the middle of the word “accountable”).

Once you have the concept down, here’s how to use it. Let’s say you have a team supervisor who you want to hold accountable for demonstrating leadership skills. And then let’s say that you think an important demonstration of effective leadership is that each member of a team knows what the top three priorities are of the organization at any moment because priorities change so frequently. If you have an employee who you conclude is performing at the Unacceptable level of the Leadership critical element, you initiate a 30-day PIP with the following expectation:

Unacceptable Level: On two or more occasions during the PIP, a team member is unable to identify the top three priorities of the organization due to your failure to inform the team member of the most recent priorities.

Or, perhaps you believe that meeting participation is an indicator of “Professionalism.” You set the 30-day PIP firm benchmark of performance expectation like this:

Acceptable Level:  No more than one incident of failing to attend a meeting in any 30-day period.

Then, you count. When it comes to defending an unacceptable performance removal, numbers are not essential, but they are very helpful. So, take all those subjective (but important) concepts, convert them to behaviors, and then count them. Rather than saying “occasionally,” “usually,” or “sometimes,” set the expectations for the PIP at one-sies, two-sies, or three-sies. A judge might want to argue with you as to what constitutes “pro-active,” but it’s much harder for the judge to argue numbers.

Wiley@FELTG.com

Firing a Leaker

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By William Wiley, April 24, 2018

Civil service law issues seem to be all over the media these days: negotiating a tough union contract at Education, easing the firing rules at DVA, Hatch Act violations on the White House lawn. Things that used to be known only to those of us inside the business are now being discussed round-table on CNN. For once, we Federal employment law practitioners actually have a seat at the table.

But we don’t always get invited to dinner. Although our business is more frequently reported in the media, it’s not always accurately reported. Sometimes an article will be published that describes part of a situation, but fails to give a complete picture because someone didn’t understand civil service law. And that hurts us all. Such limited coverage by the media can leave the wrong impression in the mind of the reader.

Take, for example, an A-2 article published in the Washington Post on April 5: “Education chief Betsy DeVos asked whether leakers could be prosecuted,” subtitled “Internal report says lack of clear rules makes criminal charges difficult.”

Look, I never claim to be a criminal lawyer. Heck, I hardly claim to be a lawyer at all on most occasions. But I do seem to remember that criminal prosecutions are based on violations of law, not violations of agency rules. Violations of agency rules can result in administrative sanctions (e.g., firing). If an agency has a rule that an employee is supposed to be at his desk by 8:00, the employee receives an administrative sanction (e.g., Reprimand) when he reports to work late. He does not go to jail.

Of course, some agency rules are based directly on federal law. When that happens, the employee can be both criminally prosecuted and administratively sanctioned for a single incident. But those are two different procedures, based on two separate theories and two different burdens of proof (beyond a reasonable doubt vs. a preponderance of the evidence). So before I even start reading the article, the subtitle gives me pause.

Once into the body of the article, I see that it’s about a referral that senior leadership of the agency made to its OIG. The question presented by the referral appears to be whether there could be criminal sanctions for an employee who leaks information to the press about internal budget matters. The OIG response was reported as being that there would be challenges to criminal prosecution or taking significant administrative action against an employee-leaker because the agency has little written policy on how such information is handled.

Well, that’s not completely accurate.

First, we have to divide that answer into two separate sub-responses: criminal prosecution and administrative sanction. Indeed, there may be a significant challenge to a criminal prosecution. We need to find a law that is somehow dependent on the existence of an effectuating agency policy. As I claim no mastery of criminal law, I can’t say whether such a statute exists. However, I do know enough criminal law to acknowledge that the burden of proof in a criminal prosecution is the highest we have: beyond a reasonable doubt. So, indeed, perhaps there is a significant challenge related to leakers regarding criminal prosecution.

Not so for the other half of the response, that it would be challenging to take a significant administrative sanction against a leaker if there are no written policies. I may not know criminal law, but my middle name is “Significant-Administrative-Sanction.” And it is this part of the response that stops short of where it should have gone.

It is fundamental to disciplining a federal employee that there be a rule in place. That’s because we define misconduct as violation of a rule. Rules can come from written agency policy, guidance, and instructions. However, it is not a REQUIREMENT that the rule be memorialized in writing. An enforceable rule can be as simple as a supervisor saying to the employee, “Lock the office door when you leave.” We don’t need a door-locking written policy to sanction (e.g. discipline) an employee who subsequently leaves the door unlocked. Therefore, that part of the OIG response as it was reported in the Post that suggests that the defense of an administrative sanction is weakened because there is no written policy regarding leaking, is off the mark. Yes, we might like to have a written policy, but we certainly don’t need a written policy to sanction a leaker. If he has been told orally or informally in writing to keep the budget information private, and he discloses it to the press anyway, he can be disciplined just as severely as if the agency’s no-leak policy was posted on every official bulletin board.

Separately, it is well-established that an agency can enforce rules that it may never have told the employee about, but the employee should have known them anyway. These are sometimes known as “common sense” rules. As Deb often speaks about in our seminars, an employee who strips down naked at work can be disciplined even if the agency does not have a “Mandatory Clothing” policy on the books. It’s just common sense that you can’t do that.

As for what constitutes a common-sense rule in the situation in the Post’s article, we are fortunate to have a court decision squarely on point. About a dozen years ago, the Department of Interior fired an SES manager because that manager disclosed internal budget information to a Post reporter. In appeal of her removal, she argued that she could not be fired for doing something that no one ever told her not to do; i.e., there was no written agency policy nor oral instruction to her not to disclose that sort of information. In rejecting that argument, the court said, “Oh, give me a break. You were a senior manager of the agency. You should have known that disclosing internal budget deliberations was a no-no and that you should keep your sweet mouth shut.” Of course, the court said it more delicately than that, but you get the point. Chambers v. Interior, 515 F.3d 1362 (Fed. Cir. 2008).

So, we have two approaches to a Significant Administrative Action that do not depend on whether there is a written agency policy regarding the handling of budget information. A more fulsome response should have covered these options and noted that a Significant Administrative Sanction need be supported by only a preponderance of the evidence, thereby easier to support than a criminal prosecution.

And, I’m not finished criticizing.

The unauthorized release of internal budget information could quite possibly be related to a critical element in an employee’s performance plan. Find out who leaked the budget information to the press, conclude that such action warranted an Unacceptable rating on a single critical element, and the agency can initiate a PIP, an opportunity for the employee to demonstrate whether the leaker can go a whole year without again performing Unacceptably. If he fails, he can be fired for that future unacceptable performance event; e.g., the next leak. And that removal doesn’t even need to be supported by a preponderance of the evidence. Substantial evidence will do, a mere grain more than a scintilla, the lowest proof burden of all:

To sustain an action based on substantial evidence, there must be “more than a mere scintilla of evidence,” but a quantum “less than the weight of evidence” is all that is required. See Jones v. Department of Health & Human Services, 834 F.3d 1361, 1366 (Fed. Cir. 2016).

I have the greatest respect for OIG offices throughout government. The work they do is hard and sometimes underappreciated. And we never really know what has happened in this situation by reading a single article published in the media. At the same time, the principles above are well-established in civil service law, and learned by every attorney and HR specialist tested and certified through participation in the FELTG MSPB Law Week seminar.

Learn the law. Work hard to tell managers how to do something rather than why not to do something. We’re going to lose our civil service if we don’t do the best job possible when it comes to employee accountability.

Do this, and I promise not to try to practice criminal law. Wiley@FELTG.com

We Bet You Never Thought of Doing This Simple Thing

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By William Wiley, April 10, 2018

Last week, we encouraged you to think outside the box a bit when it comes to a non-disciplinary removal. We described how HHS has come up with an option called a Terminal Detail. Instead of initiating a removal action, in the right situation the supervisor will offer to fund the employee’s salary for the employee to work in a different organization for several months. That way, the new organization can try out the employee without having to pay his salary, and offer the employee a permanent position at the end of the detail if it has an opening in which he can perform. The benefit to the “losing” supervisor is that he a) doesn’t have to go through the resource-intense processing of firing the guy, b) relief is immediate, and c) the employee has to agree not to return at the end of the detail as part of the contract.

Several readers commented that this was a TERRIFIC idea and could work in their organizations to avoid removals. On the other hand, a few determined just-say-no readers thought this option to be either unwise or illegal, or both.

Wanting to provide more fodder for outside-the-box thought, here’s another “crazy” option that came to me in the dark of the night while I was lying in bed sleepless, worrying about the potential loss of our civil service due to nay-sayers. If you think that a Terminal Detail is a whack-a-doodle idea, wait until you catch a load of this one.

But, first, a couple of facts to work with:

  1. A common mistake that agencies make when firing an employee is having the Deciding Official (DO) say something in her decision memo that is different from what the proposing Official (PO, usually a subordinate to the DO) has said in his Proposal Notice. Allowing the DO to consider a fact of which the employee was not notified in the Proposal Notice is almost always a violation of due process. As a due process violation is per se harmful, the agency automatically loses, and the employee and his lawyer get a whole big bucket of money, with the employee entitled to reinstatement to the position from which he was unfairly fired. If you don’t already know that this is a HUGE problem for agencies, you need to read more MSPB reversals of removals. It may be THE most common reason we lose appeals.
  2. The Civil Service Reform Act of 1978 set up the removal procedures 40 years ago this year. Although most agencies use two officials to fire an employee – a PO and a separate, superior DO – the law has never required that two individuals be involved in deciding a misconduct removal (two are required by law, in comparison, in a performance removal). For whatever reasons, most all agencies have a policy that says that two management officials will be involved in a misconduct removal, but this has never been a legal requirement.

When teaching the basics in our famous FELTG MSPB Law Week seminar (next offered in Denver June 4-8) , we strongly suggest that a way around this problem is to a) have the PO do an extensive evaluation of the Douglas Factors as an attachment to the Proposal Notice, then b) have the DO simply adopt that analysis, assuming of course that complete adoption is actually what the DO is doing. This avoids the mistake that agencies sometimes make of having the DO complete a separate fulsome Douglas Factor analysis as part of the decision memo. Having the DO do a separate analysis is a great way to include additional facts into the case, thereby violating the employee’s due process rights, and causing reversal of the removal on appeal.

“But, Bill. What if the DO disagrees with the PO? What if the DO views the Douglas Factors differently from the PO or knows things about the employee that he wants to rely on in making the removal decision, but are not in the PO’s Douglas factor worksheet? What then?”

For years, our response has been to take the safety route. Have the DO send the employee a memo that says how he views things differently, and then give the employee at least seven days (or whatever your local CBA or policy says) to provide a response to the new information. Legally, this is nice and tidy, but practically, it may delay the removal beyond 30 days. And nobody wants to delay a removal decision more than necessary.

And then it dawned on me (literally “dawned” as the sun was starting to rise over my San Francisco home as the idea came to me a couple of mornings ago):

Why not have the PO and the DO collaborate on the Douglas Factor assessment attached to the Proposal Notice prior to it being given to the employee?

We’ve known for 40 years that it is not a violation of due process to have the same individual be both the PO and the DO. We know that the heart of due process is that the agency makes known to the employee everything that’s being thought about regarding the proposal to remove him. And we know that MSPB does not have a problem with the DO being involved in the proceedings leading up to the proposed removal. Lange v. DoJ, 119 MSPR 625 (2013). Why not simply have this pre-Notice joint-drafting of the Douglas Factor analysis done by the DO and PO, and of course with notice to the employee of its joint authorship? We satisfy due process while simultaneously reducing the likelihood that the DO will want to consider something not in the Proposal Notice. Yes, it takes more time up front to get a document created by two authors rather than one, but the pay-off is significant: a reduction in post-Notice time and a better chance that we will not inadvertently violate the employee’s due process rights.

Congress, OPM, and the White House are looking at ways to change the civil service laws. Smart usage of the laws we already have will reduce the need for drastic change. Wiley@FELTG.com

Another Way to Avoid Nasty Litigation

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By William Wiley, April 3, 2018

Experienced practitioners know that it’s almost always better to avoid litigating a termination case than going to a hearing and defending a removal action. That’s because a) litigation is time- consuming and expensive, and b) even if you have a good case, there’s always a chance you will lose. Last year, agencies lost about one-in-four to one-in-five removals that were appealed to MSPB. Discovery before the Board can involve thousands of pages of documents and several tedious depositions of senior managers. Why incur that risk and expense if you can get rid of the guy otherwise?

The term “discipline alternatives” was derived a few years ago to describe this class of options for supervisors who have a problem employee. The most common one of these is a “Last Rites” meeting in which we try to talk the employee into voluntarily quitting in exchange for some benefit. “Hey, Bill, if you’ll quit, I’ll let you work at home without any real duties other than finding yourself another job. Let’s say two months, and your dress code is your pajamas.” Write it up, get the employee to sign a contract promising to be gone, and you’ve done yourself and the country a great favor.

Another option is the similarly-named “Last Chance” agreement. In this case, you agree not to implement a decision to fire someone if he’ll promise to be good for the next couple of years. If he survives the agreement period, the removal goes away. If he screws up before the period is over, it’s an immediate removal with no appeal rights and no Douglas factors. If either of these “Lasts” is new to you, sign up for our training. Agencies that know what they’re doing have been using these for decades to avoid litigation and still remove bad employees from the federal workplace.

These two options are well-established in the case law. Easy to research, easy to see how effective they can be. However, not long ago, we ran across an option being used at HHS that we think can be very useful, in the right situation, and that doesn’t lend itself to case law research. As everybody knows, the sub-agencies within HHS – FDA, NIH, and CDC, among others – do a lot of research. That means that there are a lot of employees who work in labs and on projects doing specialized technical work for extended periods of time. When it develops that an employee is no longer meeting performance standards for a critical element, HHS management uses PIPs (now known as ODAPs for “Opportunity to Demonstrate Acceptable Performance” to emphasize that it is not an “improvement” period”), last rites and last chance agreements, just like everybody else.

However, they’ve also come up with another option that in the right situation is well worth consideration. It’s called a “Terminal Detail.” Employees in a research environment sometimes just don’t keep up with the science in a particular lab and are therefore not performing acceptably. Otherwise, they have decent work habits and might fit in somewhere else. As an alternative to implementing formal procedures, the supervisor explains the situation to the employee and invites the employee to find another workplace in the organization that could use some help and is willing to try out the employee. If the employee finds an alternative position, the current supervisor offers to continue to pay the employee’s salary from his organizational funding for six months or so while the individual works in the other component. The receiving organization gets free labor for the period and also gets to evaluate whether it has a permanent place for the employee long-term.

If the employee works out in the new location, and is picked up as a permanent employee, the personnel action is a reassignment, and everybody wins. However, the deal that’s struck requires the employee to understand that if he does not have other employment by the end of the Terminal Detail, he must leave voluntarily. He cannot return to his original job, and either quits or retires, whichever option is available to him. The implementing agreement waives the individual’s rights to file an appeal, grievance, or complaint regarding anything that leads up to the detail, so there’s no adjudication related to the action.

The price to the supervisor is six months (or so) salary, so this is not a freebie approach. However, many supervisors who have been through a removal action and appeal to MSPB would say that it is a reasonable price to pay to have the employee out of the workplace immediately, with no chance of being reversed on appeal. As for the employee, he is faced with either an involuntary removal effective within 30 days or so, or the alternative of trying to prove himself to another supervisor doing different work. The choice is not right for everyone, but when it’s a good fit, it can be life-changing for the better.

Keep your options open. Stay flexible and creative. Yes, our business is firing people. However, if you can use other options to get you to the same place without all the lawyer-stuff, you almost always come out ahead in the end. Wiley@FELTG.com

The Backwards Approach to Civil Service Law

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By William Wiley, March 27, 2018

In one week, I heard some variation of this unfortunate concept three times:

What gives you the authority to do that?

An alternative of this is, “Where does it say we can do that?” I hear this phrase from attorneys, HR specialists, and supervisors, each of whom is trying to decide what to do in a particular employment law situation. For example, in one case an agency used one of its airplanes to observe the backyard of an employee who was suspected of growing marijuana there. “What gives the agency the authority to do that?” In another, the supervisor had contacted the local police and asked them to do a “welfare check” to see if a missing employee was injured or otherwise in trouble. “How do we have the right to call the police?” In another, a supervisor thought he saw a subordinate looking at porn on a personal laptop. When confronted, the employee said he was working on agency business. “Where is the agency policy that allows the supervisor to tell the employee to show him the computer screen?”

Folks, that’s exactly the kind of backwards, bureaucratic mindset that freezes supervisors and makes the agency appear to be impotent relative to holding employees accountable. The question should not be, “Where does it say we can do that?”, but rather, “Where does it say we cannot do that?”

Here’s how we know that this is the better approach:

  • 5 USC 301-302 gives the President the authority to make personnel decisions relative to the Executive Branch and to delegate that authority to subordinate management officials. Therefore, agency supervisors have the authority to run their workplace on behalf of the President.
  • Supervisors can take lawful actions with employees as long as there is a nexus (e.g., a business-related reason) for the action. The reverse, of course, is that if there is no nexus, the supervisor cannot take the action. The Lloyd-Lafollette Act of 1912 called this basing the action on the “efficiency of the service.”
  • Therefore, unless there is a law that says a supervisor cannot do something, as long as the motivation for the action is related to a bona fide business reason, the supervisor can do it.

Does an agency have a business reason for determining whether its employees are violating its marijuana policy? Sure, that’s why they have a policy, to ensure that employees are not violating federal law. How about a missing employee? Does a supervisor have a business reason for being concerned about the safety of an employee who does not show up for work? Of course. As members of society we all have that concern. As an employer, that concern is enhanced by the need to have someone at work doing the job. How about porn in a federal workplace on government time? Can a supervisor take steps to make sure that doesn’t occur? Lordy, I would hope so. If not, we have a drastically different federal workplace than the one our citizens expect (and that I used to be part of).

Of course, there are legal limits to what we can do. If that welfare check was motivated by a desire to harass an employee who had filed a bunch of EEO complaints, that’s illegal. The marijuana fly-over and the laptop viewing cannot run afoul of the Constitutional 4th amendment protections against the government conducting an “unreasonable search.” (They do not, by the way, as the fly-over is a plain-view observation and the personal laptop is fair game for the supervisor because the employee claimed to be doing government work on it.)

The civil service is routinely beat up by politicians and the media for letting bad things happen without our doing anything about it; e.g., workplace sexual harassment, employees on months of paid leave, and inefficient/rude service providers. We even had an OPM director years ago who complained about poorly dressed federal employees, saying that the government does not have a dress code; therefore, she could do nothing about workplace slovenliness. OF COURSE, we have a dress code. It’s what the supervisor says is appropriate for the work being assigned.

The attitude that something specific has to give us authority to act before we can act contributes mightily to the viewpoint that our civil service is not working. Instead of looking for the specific authority to do something, look to see if there’s something that says you cannot. In my experience, you will hardly ever find anything. Wiley@FELTG.com

Never Send to Know for Whom the Bell Tolls, Poopsie …

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By William Wiley, March 20, 2018

Oh, there’s just so much in the mainstream media these days about our business of civil service law. Sometimes we can go months without an article being published for general consumption about federal employees and their rights. These days, we’re everywhere. And if you care about your own personal future, maybe you’d better read some of those articles verrrry closely. For example:

Andrew McCabe. As most of the world must know by now, McCabe was the deputy director of the FBI until he was fired last week, just over 24 hours before his birthday that would have made him old enough to receive a law enforcement officer enhanced retirement from the federal government. If you’re like most federal employees, you probably have the date marked somewhere that is the earliest date you will have both age and years of service to claim a life-long pension for your work, including till-death-guaranteed access to reasonable health insurance, a significant rarity in the United States these days. Well, go dig up that calendar. Look at the date you have calculated. Now think what the rest of your life would be like after that, if the day before that date, you were fired. Based just on your boss’s opinion, without an appeal right to a neutral institution like the US Merit Systems Protection Board.

For our purposes, it doesn’t really matter what McCabe did that resulted in his removal. Good guy or bad guy, until last week, he was a career federal employee, just like most of you readers. He wasn’t some political flake, appointed from the private sector for some political reason, with no real commitment to the civil service and no real expectation of continued employment. No, he was an individual just like you, who filled out an SF-171 to get his first job, competed for promotions, and underwent the annual embarrassment of a stupid performance appraisal that meant essentially nothing, but which empowered him to continue to do his job of providing service to the American people. He may have made mistakes toward the end of his career, but nobody died because of them. From what I read in the media, he arguably might simply have been mistaken about some of the things he allegedly did. Love him or hate him (and we take no FELTG position on your emotions), he was just like you in the sense of trying to do a decent job for a quarter of a century with the expectation of a government retirement annuity at the end of things, and now he doesn’t have that. By a day. With no appeal. Like it or not, this is how the FBI’s system works.

Department of Education and AFGE.  Unless you’re an inside-the-Beltway, labor-law-weenie (as we are proud to be at FELTG), this one might have slipped below your radar. Education and AFGE had been slogging along trying to negotiate a new labor-management agreement for about a year, making little if any progress. Nothing too unusual there. Some federal agencies and unions spend YEARS negotiating a new contract. So, the agency negotiators notified the union that they had a contract that they planned to implement if negotiations did not progress further, gave the union a time frame to respond, and when (according to the agency) there was no response, management implemented its version of a collective bargaining agreement.

Talk about hitting the fan. I’m still cleaning off the inside of my labor law news feed. All that cool stuff in the old labor agreement was gone: employee “rights,” including those addressing workplace health and safety, telework, and alternative work schedules, provisions on workplace discrimination, performance appraisals, compensation, child care and training were all deleted and replaced with nothing. If union representatives now want official time to represent employees in grievances and Weingarten meetings, they can do it on LWOP, not paid time as in the past. Need a union office space to discuss things or send an email? Better find a quiet corner in a hallway from which you can access a Wi-Fi hotspot on your personal smart phone.

Every union official I read about complained that the agency had somehow shoved the new contract down their throats, taking away employee and union rights Congress had intended. However, every practitioner who has attended FETG’s fabulous FLRA Law Week seminar who read about this scenario knew that they were seeing the Civil Service Reform Act playing out just the way it was written back in 1978:

  1. Management notifies the Union of an intended change to employee working conditions.
  2. Upon demand by the Union, Management enters into bargaining regarding those parts of the change that are negotiable.
  3. If Management and the Union cannot reach agreement (i.e., reach an impasse), Management notifies the Union of its final offer.
  4. If the Union does not respond by initiating the impasse resolution procedures provided for by law, Management has the right to implement the change without further bargaining.

We may think it’s terrible that the employees at Education lost the flexibility of alternative work schedules or that the AFGE reps now lose pay whenever they perform most representational duties. But those things are not Congressionally-mandated rights; they are the fruits of collective bargaining, sometimes won and sometimes lost. There may be good arguments that the union did not waive its right to the impasses procedures. If so, those arguments will be resolved through the unfair labor practice charge that AFGE has filed against Education. Like it or not, this is how the labor negotiations system works.

DVA.  Last summer, Congress created a law that allows DVA to fire employees with no more proof than a grain more than a scintilla (i.e., substantial evidence). In addition, unlike most all other agencies, DVA no longer has to defend deciding to fire someone rather than just suspending or reprimanding them. If the supervisor can prove that the employee engaged in a single act of misconduct (e.g., arrived tardy one day), he can be fired, even if he has worked for the government 30 years with no prior discipline and is an otherwise outstanding employee. In the language of civil service law, that means that there’s no penalty mitigation authority at MSPB or in arbitration and thereby no Douglas Factor analysis required.

So, what was in the papers last week? Congressmen on both sides exclaiming that they didn’t know that DVA would use these new authorities to remove housekeepers, veterans, and poor performers without necessarily giving them a chance to get better. Well, Congress. If you didn’t want DVA to do this stuff, why did you pass a law that specifically allows for them to do it? Why did the President say in his State of the Union address that this new DVA firing procedure should be applied to the entire federal government? Like it or not, this is how the DVA system that you created works.

Depending on your view of the federal workplace, you may be thinking that these are wonderful aspects of the civil service; that career individuals can be fired easily and that unions have to bargain rather than be provided benefits by legal right. Here at FELTG, we’re not trying to push your civil service protections in one direction or the other. That’s an effort worthy of a much higher pay grade. What we are suggesting is that before you break out the champagne, go look in the mirror. Mentally age yourself to what you think you will look like when that retirement date on your calendar finally arrives. Now picture that person standing in line to apply to work at Home Depot or CVS, two companies who have special programs to hire old coots individuals approaching their “Golden Years.” Some people might think that a cushy civil service job is for life, but now you know better. Wiley@FELTG.com

An Act of Smiling Insubordination

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By William Wiley, March 6, 2018

We get such good questions here at FELTG (because our readers are so smart, hardworking, and good looking). This one brought a big old smile to our faces:

Dear FELTG-Funny-People,

I’ve mentioned some of the topics covered in your newsletter to my boss, specifically the one about ordering an employee to smile and participate in meetings.  His perspective is that this would never work “in the real world.”  My perspective on his comment is that our agency solicitors wouldn’t support such an order or recommendation for removal.

Sad in Seattle

And our ever-thoughtful FELTG response:

Dear Sad-

Thank you for your nice note. It’s very kind of you to take the time to comment on one of our silly articles.

As for whether MSPB would uphold a removal for a failure to participate in meetings or smile, our job is to say what MSPB has done in the past so that we can predict what we can do in the future. And they have never said that this sort of misconduct (insubordination) would not support a removal. Our job is not to have an opinion on what should be done, but instead what can be done. That is my real world, and with all due respect, that is the real world of your supervisor as well as that of your solicitor.

We don’t need to guess at what MSPB would do. We just have to look and see what they’ve done in the past. When we do that, we find ZERO cases in which the Board has said that an employee is free to disregard a job-related order from a supervisor. In 40 years. Remember, I was the Chief Counsel to the Chairman at MSPB through most of the ’90s. I know this stuff. It is easy to imagine a job in which attending meetings would be job-related. Even smiling can be a job requirement; e.g., a supervisor might want employees who contact the public to smile for the benefit of presenting a better image of the agency. Your boss and your solicitor may not know this, but that doesn’t make them correct. Instead, it makes them uninformed.

Best of luck.

This is an important matter, not so much because we all want more smiling civil servants, but because it highlights a bedrock principle of the federal workplace. Supervisors get to decide what work is going to get done. Not some judge or political appointee on some board; the decision goes to front line supervisors. There are three and only three requirements for a supervisor’s order to be enforceable through discipline:

  1. There must be a nexus (relationship) between the order and the work of the agency,
  2. The order itself must not violate a law or require the employee to violate a law, and
  3. The order must be do-able (attainable).

Let’s say that you supervise a public contact Federal employee, perhaps a hypothetical screener for TSA. Your Customer Service surveys show that many members of the public who are screened by your employees find them to be gruff, uncaring, and rude (this is all hypothetical, of course). You decide that ordering your employees to smile might reduce the public’s negative perception of your crew. If you decide to order your employees to smile:

  1. There is a nexus between you order and the work of the agency,
  2. There is no law against smiling, and
  3. It is possible for employees to smile.

That’s all it takes. If Mr. Grumpy intentionally refuses your order for whatever reasons, you can reprimand him for insubordination. If he commits a second offense, you can suspend him, and if he commits another offense after he serves the suspension, you have the authority to consider firing him. You need not tolerate an insubordinate employee indefinitely.

“But, Bill. Won’t a judge overturn the removal on appeal?” Nope. The Board has long found fault with judges who insert themselves into the decision process regarding what work should be done. Supervisors decide what work should be done, enforceable through removal, if necessary. Even if a judge would never order her employees to smile and thinks it silly that any federal supervisor would give a smile-order, the judge has no authority to set aside the order. All she can do is review the order against the above three criteria, evaluate the penalty where she must give heavy weight to the repetitive intentional nature of the insubordination, and uphold the removal. If she did not, she would be affirming the power of federal employees to refuse to obey a supervisor’s order, and that’s just not going to happen. She cannot substitute her judgment relative to the wisdom of the order for that of the supervisor.

Tell employees what you want them to do, even if it’s something seemingly as minor as smiling. Apply progressive discipline to them when they don’t. Remove them if they become a three-striker. People can’t be forced to do what their supervisor tells them to do, but if they don’t, the supervisor has the authority to remove them from the civil service.

Remember that the next time your boss tells you to, “Have a nice day.” Better smile when he says that. Wiley@FELTG.com

It Can Be Bad; It Can Be Good

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By William Wiley, February 27, 2018

We love our questioners. Recently, we got an inquiry regarding an article written by one of our favorite authors. Here’s our response:

Dear Employment Law Gurus,

I read this article from Government Executive this morning. I would love to know your opinion of the premise of the article, basically it is too hard to fire federal employees, and the scenario the author provides.

http://www.govexec.com/excellence/management-matters/2018/02/low-rate-firing-government-employees-not-positive-sign/145763/?oref=govexec_today_nl

Thank you.

And here’s our guru-like response:

Thanks for your query. These are exactly the sorts of misunderstandings we love to address.

The author has expanded the scenario to make a valid point. As we have taught in our classes for years and provide as part of our consulting services, he is implementing, as is typical in many agencies, more actions than required by law. An FELTG-Certified practitioner would never do these things.

His list and our alternative:

Employee’s supervisor looks the other way First mistake. We teach supervisors to act immediately upon seeing misconduct.

 
Oral counseling Not required. Lehnerd v. OPM, 55 MSPR 170 (1992)

 
Written counseling   Not required and generally a bad idea because the employee will claim reprisal.

 
Written admonishment        Not required; potential reprisal claim same as above.

 
Reprimand Yes! Finally, the supervisor does what we teach should be done on day one.

 
Short suspension Can do. However, we teach to bargain with the employee to accept a Reprimand in Lieu of Suspension. No grievance that way.

 
15-day suspension Never! Why do something the employee can appeal to MSPB? Besides, unnecessary and of unproven value.

 
Proposed removal Yes! Should have been done after the Reprimand in Lieu of Suspension.

 
Injury after removal proposed Not in the FELTG world. We put the employee on Notice Leave so he is not in the workplace. No workers’ comp 45 days there.

 
Demands to be retrained     No entitlement to be retrained.

 
Reassigned Should have issued the decision to remove that was proposed earlier.

 

I know and respect this author. His scenario does indeed happen way too often. However, trained individuals know how keep this from happening:

  1. Reprimand,
  2. Reprimand in Lieu of Suspension,
  3. Removal.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system as much as it is a lack of people who understand the system that’s the problem.

Come to our training. Learn the program. Be a Systems Superstar. We love this stuff. Wiley@FELTG.com

 

Another Congressional Tiny Little Foray into the World of Civil Service Law

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By William Wiley, February 20, 2018

Each year, the National Defense Authorization Act turns out to be a great piece of legislation into which members of Congress can stick things that have nothing to do with the nation’s defense. The Act for fiscal year 2018, HR 2810-335, is no exception. Dig through many pages in the bill of this and that, and you’ll find the following tidbit:

Sec. 1097(b)(5), INFORMATION ON APPEAL RIGHTS. —

(A) IN GENERAL. —Any notice provided to an employee under section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) of title 5, United States Code, shall include detailed information with respect to—

i. The right of the employee to appeal an action brought under the applicable section;

ii. The forums in which the employee may file an appeal described in clause (i); and

iii. Any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file an appeal.

(B) DEVELOPMENT OF INFORMATION. —The information described in subparagraph (A) shall be developed by the Director of the Office of Personnel Management, in consultation with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.

Context

To appreciate the relevance of this language, we need to know a couple of things:

Adverse Actions: To suspend, demote, or fire a Title V career federal employee, most agencies take what is known as an adverse action, 5 USC Chapter 75. Agencies must issue two separate documents to make an adverse action happen:

  • A proposal Notice that tells the employee why the action is being proposed, and explains the employee’s rights to defend himself, and
  • A Decision memo that takes into consideration the employee’s defense of himself, and notifies the employee of the outcome of the proposal; g., removal, demotion, suspension, or nothing.

Rights Notification:  Since the beginning of time (OK, maybe it was just since 1979), agencies have been required to include in the Decision memo an explanation of the employee’s rights to challenge the agency’s final action through appeal to MSPB. Historically, agencies have also included an explanation of the employee’s alternative rights to file a grievance under a collective bargaining agreement, a discrimination complaint to EEOC, and sometimes an explanation of the US Office of Special Counsel’s jurisdiction to consider claims of whistleblower reprisal.

About five years ago, MSPB decided that the various rights notifications used by different agencies were not uniformly informing to the employee of all the alternatives available to challenge the adverse action, and the implication of selecting one venue over the other. Therefore, by regulation, the Board mandated that agencies must provide a complete description of the various redress alternatives when issuing a decision in an adverse action appealable to MSPB.

However, for reasons unimaginable to the common mind, the Board did not say exactly what language should be used for the rights notification. That left agencies floundering around guessing what should be said in the rights notification to make the Board happy, and the Board reviewing those rights notifications judging some to be adequate and others not.

Here at good old FELTG, we did the best we could to sort all that out. As soon as the regulatory requirement was mandated, we offered draft language that we guessed the Board would accept. A few months later, we had to tweak that language because of an MSPB decision that pointed out the need for greater specificity of notice. Still, even with the second tweaked draft, we weren’t really sure that the MSPB was being appeased or whether it just had not gotten around to finding fault with what we had recommended. Lesser agencies who do not abide by our FELTG suggestions continued down whatever language rabbit hole they thought to be the better path. Quite frankly, we were all running backwards in the dark because of the lack of distinct and specific instruction.

Comes Now the NDFAA for Fiscal Year 2018:  Amazingly, somebody on Capitol Hill saw how foolish this was, and interjected the language you see above into a passing piece of legislation. No offense intended here, but I am awe-struck that someone up there appreciates the difficulty that this lack of guidance causes. Talk about civil service minutiae. Hats off to whoever saw the problem, and thanks for trying to fix a dilemma that should never have occurred.

Unfortunately, the law misses the point of a rights notification. An employee needs to know her rights to challenge an adverse action after the decision has been made to implement the action; e.g., in the Decision letter. The statutory language above requires that the rights notification be included in the Notice proposal. So now what will happen is that the poor employee likely will be confused and start filing appeals before the agency has made a decision as to whether an adverse action will be implemented at all, and if so, what it will be. If that happens, poor overworked MSPB will have to dismiss all those pre-decisional appeals as premature, and the confused employee will have to get good advice to know to refile once the final decision is issued. Groan.

MSPB, why in tarnation didn’t you just tell us what language to use as a rights notification in the first place? Why put it on us simpletons to guess at what you wanted? OPM, when you saw that MSPB wasn’t going to be helpful, why didn’t you have one of your senior people Uber over to M Street NW and talk with someone at the Board about a coordinated issuance of acceptable language? This is staff stuff. This is what staffs do. No big decision-making; that’s left to the politicals. Just normal people saying to normal people, “Hey, we got a procedural problem here. Can you help?” Geez, see what happens when you leave it up to Congress to fix something we should have fixed ourselves? Good try; just missed.

We’re all in this together: MSPB, OPM, EEOC, OSC, the other civil service movers and shakers; maybe even old FELTG, if you’ll allow us a guest pass. The goal is to make government work smoothly and fairly. Congress is going to continue to micromanage us until we learn to manage ourselves. This is not the best way to make government work well. Wiley@FELTG.com