What Do You Have to Do to Show that You are Incapacitated?

,

By Deryn Sumner, October 24, 2017

As we discussed in August’s edition of the FELTG newsletter, the EEOC’s Office of Federal Operations is cracking down on granting extensions on deadlines to file appeal briefs.  In one canned response my office received, the EEOC made reference to a need to show that the party was incapacitated during the regulatory timeframe to file the brief.  Incapacitation is used as the standard for other issues of timeliness, including in determining whether there is a basis to extend the timeframe for making contact with an EEO counselor or filing a formal complaint.  So what does one have to do to show incapacitation before the Commission?  As the case law tells us, merely being stuck on your couch binge-watching TV while you fight off the flu is not going to cut it.

Historically, the EEOC has required the party, typically the complainant, to provide medical documentation to demonstrate the inability to meet a deadline because of a medical condition and to show that the medical condition was so severe so as to prevent the complainant from meeting the deadline.  Being taken to the emergency room will typically be sufficient to show incapacitation, as was the case in Zandra N. v. United States Postal Service, EEOC Appeal No. 0120161756 (July 15, 2016).  Being in a residential treatment program is also typically sufficient to show incapacitation, as shown in Complainant v. Department of Agriculture, EEOC Appeal No. 0120133092 (January 17, 2014).

However, medical documentation alone will not always meet that burden of proof.  For example, in a 2015 case, Refugia v. Department of Homeland Security, EEOC Appeal No. 0120151970 (October 3, 2015), req. for recon. denied, EEOC Request No. 0520160076 (June 8, 2016), the complainant submitted a medical certificate in support of her claim that she was under severe stress during the timeframe she had to file a formal complaint of discrimination, which caused her not to be able to timely file the complaint.  The Commission found that although the complainant submitted medical documentation, she did not demonstrate that she was so incapacitated that she could not meet the deadline.

The Commission did recently credit submitted medical documentation in the case of Jutta A. v. Department of Veterans Affairs, EEOC Appeal No. 0120172048 (September 22, 2017) to excuse the untimely filing of a formal complaint.  There, the complainant received her notice of right to file a formal complaint on March 9, 2017, but did not file her formal complaint until March 28, 2017, 19 days after receiving it and 4 days after the deadline.  The Commission found persuasive that the complainant submitted medical documentation from two medical professionals noting that the complainant was experiencing “crippling anxiety associated with various physical symptoms” as well a respiratory tract infection developed during that time.  Given the short period of time that had elapsed between the deadline and the complainant’s submission, the Commission found fit to reinstate the formal complaint for processing.

So, if you plan on asserting that personal incapacitation kept you from meeting a deadline, be prepared to have the medical documentation to support your claim.

Sumner@FELTG.com

A Classic Reprisal Case

, ,

By Deborah Hopkins, October 18, 2017

EEO activity isn’t fun for anyone involved – not for the complainant, not for the agency reps, and not for the supervisor named as a responding management official. But EEO laws exist to protect people from illegal reprisal for engaging in protected EEO activity, and a recent reprisal case from USGS shows us exactly what not to do.

The employee, a hydrologist for the U.S. Geological Survey, filed an EEO complaint based on age (51), sex (male), hostile work environment, and reprisal. The employee’s claims were:

  1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position;
  2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position;
  3. On September 10, 2013, his first level supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri;
  4. On August 20, 2013, the selecting official told him that the supervisory position was the Selectee’s position;
  5. On August 20, 2013, his first level supervisor instructed him not to apply for the Supervisory Hydrologist position in Rolla, Missouri;
  6. On an unspecified date in October 2010, he did not receive his promotion after being told that he had the director’s approval for the promotion, pending a letter of reference;
  7. On an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do;
  8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and
  9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment.

As is common in EEO cases filed, the complainant’s claims on age, race and harassment were found to have no merit, but the EEOC did find evidence of reprisal for prior EEO activity:

  • The supervisor offered the employee an incentive to withdraw his complaint, and told him that if management changed and the employee had a good performance evaluation, he would talk with senior management about a new job for the complainant.
  • The supervisor told the complainant he thought he had “pulled the trigger too soon” by contacting the EEO counselor.
  • The supervisor also told the complainant that the EEO process is not “the most enjoyable path for anyone involved.”

The EEOC found that the supervisor “engaged in conduct that was designed to intimidate and/or interfere with Complainant’s EEO activity. We further find that [the Supervisor’s] comments would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and that the actions and comments by [the Supervisor] were clearly in violation of the anti-retaliation provisions of our regulations.”

As part of the order, EEOC required the USGS to provide “at least eight hours of in-person EEO training to [the Supervisor] regarding his responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees.” Octavio C. v. USGS, EEOC Appeal No. 0120150460 (August 16, 2017).

We try to get the word out to your supervisors that while EEO is not fun for anyone involved, making these types of statements is going to be reprisal, every single time. If you need to know more on this topic, Bill and I are holding a webinar called 50 Shades of Reprisal: The Differences between Whistleblower, EEO, Union & Veteran Reprisal on October 26.  Hopkins@FELTG.com

An Open Letter to OPM

,

By William Wiley, October 12, 2017

If you regularly read the Washington Post or some other big city newspaper, you no doubt have noticed this: about once a month or so, some self-righteous, opinionated, backwater organization will spend a bucket of money to buy an entire page of advertisement to display an “open letter” imploring some powerful individual or organization to do whatever it is that the open-letter author thinks is important. As our little FELTG training group is nothing if not self-righteous, opinionated, and deep, deep backwater, here’s our full page ad for the month. In the spirit of Martin Luther, we plan to nail it to the door of OPM over on E Street NW, just as soon as we figure out how to nail to plate glass:

Dear OPM,

Late this past summer, you issued a proposed instruction that would place significant burdens on agency officials who need to implement Notice Leave to get an individual out of a government workplace during the 30-day pendency of a proposed removal. Although you promised a final regulation by late September, you decided to indefinitely delay issuing the final version of that instruction for reasons unexplained to the general public.

Hopefully, you made that decision because you got lots of thoughtful comments from readers of this here newsletter and other experienced souls that your proposed regulation was ill-conceived and most likely will get people killed. Well, just in case you’re still thinking about what to do, we offer a single name for your consideration:

Stephen Paddock

Mr. Paddock was the Las Vegas shooter. With no history of violence, no police record, and no documented mental disabilities, he took it upon himself to kill 58 of our fellow citizens, and wound nearly 500 more by shooting at them from an upper floor of a Las Vegas hotel. As of this writing, none of the smart guys has discovered a motive for the shootings. Until we get more information, the best guess is that he just snapped; methodically stock-piling enough guns and ammunition to arm a platoon of soldiers before taking aim and firing at a field of innocents.

We now know that Mr. Paddock had previously been a federal employee for about a decade. He worked at IRS, USPS, and the Defense Contracting Agency, according to media reports. Before you issue your final rule relative to Notice Leave, stop and think for a moment what might have happened if Mr. Paddock had gotten himself in trouble with one of those agencies, perhaps repeatedly coming to work late or failing a performance improvement plan. If nothing else worked to correct his behavior, his supervisor would eventually have proposed his termination, because that’s what we ask our supervisors to do regarding employee accountability.

If your stupid proposed regulation had been in place when that happened, Mr. Paddock’s supervisor most likely would have kept him at work, either in his original workplace in a government building, or perhaps at home on telework where he would still have access to the agency’s computerized data files, maybe even retaining his government credentials that allow him to enter government property. For 30 days. That’s because your proposed Notice Leave rule makes it so difficult for front line supervisors to place an employee in a paid non-duty status, most would not take the trouble to do it. Hey, why should they? Mr. Paddock hasn’t displayed any signs of potential violence. Yes, he’s a grumpy old man, but there are lots of grumpy old men around these days. When you’re putting together the paperwork to fire someone, the last thing you want to do is go through additional paperwork and obtain higher level approval in invoke Notice Leave, as your proposed rule would have required.

Mr. Paddock lived in Nevada, a state with some of the loosest gun laws in the country; e.g., no limit on the number of guns that can be owned and no requirement to have a gun permit to buy a gun. I wonder how many guns and how much ammunition a Nevada resident can amass in a 30-day Notice Period preceding a removal for a government position? And I wonder how much stress a government employee feels when issued a proposed removal notice?

Look, OPM, are you still with us? We implore you. Act like one of the smart guys. You cannot possibly be thinking that 30 days of salary is somehow more important than the lives of our civil servants and the public they serve. You really aren’t interested in denying an agency the ability to use 30 days of paid non-duty time if it saves a civil servant life; you’re interested in curtailing the abuse of this flexibility. So please, rewrite your rule so that, categorically, front line supervisors have the unrestrained authority to place an employee on Notice Leave for 30 days any time a removal is proposed. If you’re concerned about abuse, require all the levels of approval and additional documentation for Notice Leave beyond 30 days as you now have in your proposed rule. Not only might that save lives, as a bonus, it also gives the agency a strong incentive to make decisions on proposed removals promptly.

Come on, come on, come on. Help make America great. Do it for the children. Have a big heart. Get smart. Go green. Take guidance from how the White House fires people. Listen to those of us who have been around a while. Make it easy to invoke Notice Leave and FELTG will personally buy lunch for whoever it is over there that gives the final approval for the rewritten regulation. Heck, we’ll even buy lunch for the whole darned rewrite team, if the change goes through to make Notice Leave easily available.

We have skin in this game, as well, because our speakers work in Federal work spaces throughout government. We don’t want to have to explain to their grandkids that grandpa is not coming home from his last onsite training seminar because of some short-sighted OPM regulation.

And for what it’s worth, you have skin in this game, as well. The next Stephen Paddock could be working right down the hall from you, right now on E Street NW. See him? That guy with the funny mustache and smirk on his face? The one with the Bullets and Bombs magazine in his desk drawer? How’d you feel handing that moron a proposed removal letter?

Yeah, us too.

With All Love and Affection,

FELTG

Wiley@FELTG.com

Painting Your House

,

By William Wiley, October 4, 2017

I think that just about everyone at one time or another has painted a room, or perhaps hired someone to paint a room for them. Not as easy as it looks, if you’ve had this experience. And a mess to clean up if you make mistakes.

So let’s say you have a 10-bedroom house, a typical size home for you highly-paid civil servants. You’re busy running the government every day, so you jump on Task Rabbit or some other handyman service, and hire yourself a by-the-hour painter. The guy shows up, has the credentials and experience to do the job, so you turn him loose. You tell him how you want things done: No paint on anything, but the walls. The painter has brought the flat white paint you asked for, so you leave him to do the first room while you go to your highly important desk in that highly important federal agency.

When you return that evening, the painter has finished the work on the first room. He’s left a bill for eight hours of work, which is about what you expected. But the quality of the paint job is not. The face-plates are plastered to the wall with paint. The window glass has ragged edges. The floor has white speckles where it is not supposed to have any speckles. The guy did a bad job.

Pop Quiz No. 1: What will you do when the guy shows up tomorrow morning to start on the second room?

A. Fire him.

B. Give him a second chance.

Yeah, I’d fire the guy, too. Life’s short. Paint’s expensive. There are lots of potential painters on Task Rabbit. Find yourself a painter who can follow instructions.

But wait! Your roommate (husband, wife, whatever) is more forgiving than are you. She implores that you give the dude a second chance; an opportunity to demonstrate acceptable performance. As your roommate is paying for half of the paint job, and as it is her week to do the cooking, you decide to go along with her suggestion in the interest of peace and harmony, and edible dinners.

So when the guy shows up on Day Two for room number two, you reinforce your very specific instructions: face-plates removed from the electrical outlets, masking tape on the glass, and the entire floor covered in tarps. You tell him if he continues to mess up, to fail to demonstrate acceptable performance, you will fire him. Then, you take off for your spare bedroom as you are working flexiplace today.

At noon on your lunch break, you wander down the hall to see how he’s doing on room number two. Sadly, the outcome is no better than yesterday. One of the windows is completely obliterated with paint. The light switch as well as the face-plate is covered in paint. The speckles on the floor today are pink because he brought the wrong color paint. Pop Quiz Question No. 2: What will you do?

A. Fire him. End the misery. Save yourself four hours of pay. He has failed to demonstrate acceptable performance.

B. Let him finish painting room number two, then fire him.

C. Reconsider your original decision to have only one room in which to demonstrate acceptable performance, advise him he can have not one, but a three-room opportunity period, then wait to see how he does after three more rooms.

I have to believe that most rational people would have fired this guy after the first day. If convinced to give him another chance by a soft-hearted roommate, I have to believe that most people would have fired him at noon the second day. Why waste unnecessary money on somebody who cannot do his job? Why put yourself in a position of a) not getting work done that needs to be done, and b) giving yourself a bigger and bigger mess to clean up once it’s all over? Some may come to different conclusions, but I think that most readers would pick A. and A. for our two pop quizzes.

So why in the world do too many practitioners not take this same approach to PIPing a poorly performing federal employee? Here’s what the law has said for nearly 40 years about how a federal supervisor should deal with unacceptable performance:

5 USC 4302(b)(6): Reassign, reduce in grade, or remove employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.

The law is like your soft-hearted roommate. It won’t let you fire the employee the first time you find poor performance. Beyond that, though, it gives the supervisor significant flexibility to do what needs to be done during the demonstration period. Unfortunately, here at FELTG we run into practitioners all the time who advise supervisors to paint several rooms before firing the bad handyman (e.g., 60, 90, and 120-day PIPs) or insist that the supervisor allow the employee to complete the PIP even if they fail it early (e.g., finish painting everything in the room pink).

Folks, it is rare to find a federal law that doesn’t make sense. It is a nonsensical interpretation of this particular federal law if you believe it means that employees have to be given several months to demonstrate acceptable performance or given the opportunity to finish a PIP if they fail the PIP early. Interpret legal requirements rationally, as you would act in the real world outside the civil service workplace. Even you softies out there would not give a bad painter excessive opportunities to demonstrate acceptable painting ability. There is no excuse for not acting as rationally when you advise a supervisor who supervises a non-performer.

Be brave. Be rational. Advise supervisors to use 30 day PIPs and fire the guy if he demonstrates failure early. If you don’t, we’ll send one of our poorly-trained but highly-motivated FELTG handymen to your office and paint the place pink. That should remind you to be strong.

Of course, if your office already is painted pink, we are jealous. Because we think that pink is a just dandy color for some federal agencies. Wiley@FELTG.com

The Simplest Rule of All

,

By William Wiley, September 19, 2017

We routinely invite participants in our FELTG webinars to email us with follow-up questions if we can be of further help. The fundamental question below came from a recent participant who had a head-hanging problem. Unfortunately, it is too late for us to help this time, but next time, she’ll be prepared:

Dear FELTG Sensei-

I struggled for four years with a deeply troublesome employee and I eventually left the job because of him. He was an older male and very crafty. My successors and I had no end of trouble with his behaviors, one of which was to hang his head and stare into his lap at meetings (and generally require us to work very hard to extract more verbal input), keeping his door shut, etc. Nonetheless I’m amazed to know that, as you have taught, I could have implemented a rule that he could no longer hang his head and stare at his lap in meetings, or that his door must remain open unless he’s in a meeting. I have no doubt that if I had issued a written reprimand for one thing, he would then comply, and implement some other troublesome/disruptive behavior. 

So how does one deal with an employee who constantly plays a game of complying with each successive rule and has a dozen other ways to be difficult? I would appreciate your thoughts on this. Many thanks!

And our always-enlightening FELTG counsel:

Dear Participant-

Yep, you really can tell them what to do. I once worked with a supervisor who required an employee to smile at everyone he spoke to at least once a day, and reprimanded him when he did not. The law is a powerful thing if you understand it. Employees really do have to obey their supervisors.

The trick to multi-jerkiness is progressive discipline. First head hanging after being told not to do it = Reprimand. Closing the door later after being told to keep it open = Suspension. A third offense of anything demonstrates that he does not respond to discipline, and a removal is usually warranted. Or, if you really want to be extra conservative, you could give a second, longer suspension. A fourth offense of anything has always been a removable offense. Always. He’s not going to get to a dozen other ways to be difficult because he’s going to be fired way before then.

Hope this helps. Take care out there-

Sometimes it’s the simplest things that drive us nuts. Grasping the concept that if an individual wants to be paid, he must do what his boss tells him is fundamental to being a federal supervisor. As we often say in our seminars, when a new employee raises her hand and takes the oath to be a civil servant, what she is really saying – by law – that “In exchange for getting paid every two weeks, I will:

  • Do what my government tells me to do,
  • Where my government tells me to do it,
  • When I am told it is to be done.”

If she doesn’t want to do any of these three things, that’s fine. They are always hiring at McDonald’s. Wiley@FELTG.com

The Dreaded Yellow Donut

,

By William Wiley, September 5, 2017

Here at FELTG from the very beginning of our existence, we’ve taught that the best approach to discipline is to focus on the minimum steps that have to be done and to avoid doing things that have no legal value. The obvious reason we make this recommendation is that the more unnecessary things you do with a bad employee, the longer it will take you to be able to use the ultimate accountability tool: removal from federal service.

The other reason we make this recommendation is a bit more insidious, and a product of our protective civil service system. In reality, just about any personnel action you take with an employee can be challenged through one or more of the redress systems available to federal employees who feel that they have been mistreated. If you do something to an employee and he thinks it is because of his race/sex/age/etc., he can initiate an EEOC complaint against you, involving a big investigation and perhaps even an administrative hearing at which you’ll have to defend your action before a judge. If you do something to an employee and she thinks it is because she’s a whistleblower, gird your loins for an investigation by those tough investigators over at the US Office of Special Counsel. If you do something to an employee and he thinks it’s because he’s a union official, here comes the crew over at the Federal Labor Relations Authority, prosecuting you for committing an unfair labor practice.

If you decide to take formal steps to hold an employee accountable for misconduct or performance, you probably are going to have to defend yourself before one or more oversight agencies, no matter what. For your own sanity and the well-being of your children, you should avoid doing any more to an employee than necessary, because the minimum steps will keep you busy enough, and you don’t want to have to defend yourself any more than you have to.

When we make this point in our seminars, the graphic we use is a three-part bulls-eye target containing all the options a supervisor has when confronted with a bad employee. The outer blue ring symbolizes options we have to admit are options, but they are illegal: DON’T DO THEM. For example, you could spank the employee who doesn’t obey your orders. DON’T SPANK YOUR EMPLOYEES (but it is an option).

The middle of the target is the red bulls-eye. This is where you want to put your efforts: Reprimands, Suspension, and Removals. Those are the primary tools of discipline. We teach that they should be the exclusive tools that a supervisor uses.

That leaves us with options in the middle band, the circle of options around the red bulls-eye middle and inside of the purple illegal options area. These options are legal, but they have no legal value. You do not need to do them to hold employees accountable, and they help you in no way as far as defending yourself should you ever decide to fire the employee. In our seminars, this collection of options has come to be known as the dreaded “Yellow Donut.”

So what are some actions out there in the Yellow Donut that are to be avoided? Well, they are actions we see all the time, often memorialized in agency disciplinary policies: e.g., Admonishments, Letters of Caution, Letters of Warning, Letters of Counseling, and Letters of Expectation. When a supervisor gives one of these documents to a problem employee, it feels as if the supervisor is doing something worthwhile, but she really isn’t. These items do not meet the case law definition of “discipline” in most cases, and therefore cannot be used for the purpose of progressive discipline. Sometimes supervisors tell us that they have been advised by Human Resources or legal staff that these actions are a necessary precursor to issuing something actually worthwhile, like a Reprimand or Suspension. Well, unless your union contract says otherwise, they are not.

Not only are they a waste of time, they also give the employee something to challenge. Last month, I was involved in an OSC investigation in which one of the two personnel actions being challenged as whistleblower reprisal was a Letter of Admonishment. The settlement figure in that case – the amount the agency agreed to pay the employee to have it all go away –  approached a half-million dollars.

In part, for a freaking Yellow Donut.

Look. If you want to stop by Dunkin’ every couple of hours for a delicious glazed yummy, that’s between you and your waistline. But if you want to do this business like a pro, holding employees accountable expediently and fairly, then drop those Yellow Donuts from your disciplinary diet. As Deb always says, they aren’t anything but empty calories. Wiley@FELTG.com

I’ll Never Understand the Hatch Act

,

By William Wiley, August 29, 2017

Oh, boy. It hit the fan a couple of weeks ago, didn’t it. “Postal Workers Campaign for Clinton on Government Time!” screamed one headline I saw. Several Congressman have expressed outrage and a couple of oversight chairmen have asked various agencies to produce information related to federal employees participating in “union-official political activity.” Other postal employees had to be paid overtime to cover for the employees out campaigning. The US Office of Special Counsel reportedly issue a finding that postal officials violated the Hatch Act by granting leave requests for employees to campaign for union-endorsed candidates. If you didn’t read closely, you might have concluded that the postal service actually hired individuals just so they could campaign for Democrats.

Well, I just don’t get it. According to OSC’s website, the Hatch Act says that federal employees, like these union folks at the postal service, cannot “engage in political activity while on duty or in the workplace. Federal employees are ‘on duty’ when they are in a pay status, other than paid leave, or are representing the government in an official capacity.” As for off-duty conduct, away from a federal worksite, “federal employees may express their opinions about a partisan group or candidate in a partisan race.”

As for the status of the postal service employees who were campaigning politically, every report I can find that gives any detail says that they were on leave without pay. As I read the Hatch Act and OSC’s guidance, if the individual is not “on duty,” then he is free to “express opinions about a partisan candidate” (e.g., campaign). I’ve been around a long time, and that’s always been the rule. Be careful and refrain from political activity:

  • When on the clock,
  • On government property, or
  • Using your governmental position in some way (sorry we didn’t get this article out sooner, Secretary Carson).

If these guys were in an LWOP status, where’s the Hatch Act prohibition on campaigning? And why in the world would it be the postal service’s management officials who approved the LWOP who have been found by OSC to have engaged in a “systematic violation” of the Hatch Act? If you have had experience with collective bargaining, you know that unions often bargain for time off for things; sometimes paid official time (e.g., to represent in Weingarten meetings) and sometimes unpaid time (e.g., to attend union conventions).

Is the violation of the act found in the fact that the agency knew that the LWOP was being used to campaign? Even if the agency knew of the purpose when it agreed to the excused time off, how does that make it a Hatch Act violation? Individuals are free to campaign as long as they are not on duty time. These individuals were not on duty time. They have a Constitutional right to express their political views (freedom of speech and association, as I remember my Constitutional law hornbook). Just because they earned the right to be on non-duty time through collective bargaining doesn’t seem to me to make this into a Hatch Act violation on the part of agency management. What if an employee had individually asked for LWOP (or annual leave) to campaign. Would it have been proper for agency management to deny that request? I don’t think so. Denying a leave request for political reasons seems a lot more like a Hatch Act violation than does what happened here.

I’ve never worked at OSC and been responsible for giving out Hatch Act advice. However, I have helped adjudicate a couple of charges of Hatch Act violations brought by OSC. Even so, I am the last person in the room to claim to be a Hatch Act expert. And with all those disclaimers, I have to admit ignorance. How this is a Hatch Act violation on the part of postal service management (or the individuals in the postal service union) has got me befuddled. I think I’ll take some leave without pay to consider it more deeply. Wiley@FELTG.com

“Just Quit”

,

By William Wiley, August 8, 2017

If you’ve been around this business of civil service law very long, you’ve probably heard of the US Office of Special Counsel (not to be confused with Robert Mueller’s Office of Special Counsel over at DoJ). That tiny little agency (150+) has the awesome responsibility of investigating allegations of “prohibited personnel practices,” perhaps most importantly, allegations of the mistreatment of federal employees because they have blown the whistle. Congress loves this agency because whistleblowers make public Executive Branch malfeasance, waste, and law-breaking. Whistleblowers disclosed the possibility of significant harm to our veterans at certain DVA facilities because of employee misconduct. Whistleblowers also told us that some of the headstones at Arlington National Cemetery were misplaced, that TSA was allegedly reducing staffing levels to an unsafe level, and that the Department of Interior was dangerously reducing the amount of money devoted to protecting drivers on the Baltimore-Washington Parkway.

Here at FELTG, we often work with agencies who are undergoing an OSC investigation into possible whistleblower reprisal. If you are a repeat reader of this here newsletter, you know that we have previously expressed concern at some of the tactics we’ve seen investigators from that office use. Without rehashing those specifics, a couple of quotes from others might make the point from a different source. In our fantastic and fabulous seminar MSPB Law Week (next offered in DC September 11-15), we work with about 50 agency practitioners on many topics relevant to MSPB law, whistleblower reprisal investigations among them. Recently, we asked a group of attendees if any had ever been through an OSC investigation. Several attendees raised their hands. When we asked for take-aways from those investigations, a number of agency representatives volunteered their succinct perception and advice regarding the experience:

“Overreaching, intimidating, and scary.”

“One-sided and aggressive.”

“Just quit.”

For the un-initiated, OSC responds to claims of whistleblower reprisal from employees – if it believes that they may have merit – by contacting the responsible agency and asking for documents, phone records, emails, hard drives, privilege logs, contact information for former employees, schedules for witness depositions, and just about anything else it expects might be relevant to the reprisal claim. In our FELTG experience, the last response we helped an agency with required that we conduct document-by-document review of over 3,000 emails covering the past two years. (There went another of our Saturdays spent trying to help the civil service function with greater accountability.)

In the past as a practical matter, agency responses to OSC document requests were something of a dance; e.g., OSC would ask for five years of emails, we would offer two. OSC would demand emails that in any way mentioned the complainant, and we would offer only those relevant to the personnel action at issue. OSC would ask for emails between agency counsel and agency management, and we would refuse based on attorney-client privilege. Offer and counter-offer, threatening and responding to threats, sometimes cursing and spitting (among ourselves, of course … NEVER curse nor spit at an OSC investigator). Eventually OSC would get enough information on which to make a prosecution decision and the agency would retain some degree of confidentially in its records.

Well, my friends, that’s all about to be history. The Senate recently passed a bill, which the House will no doubt agree with, that will provide the following:

  • The Special Counsel will be authorized to have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry.
  • The Special Counsel will be authorized to request from any agency the information or assistance that may be necessary for the Special Counsel to carry out its duties, and require the agency to provide to the Special Counsel any record or other information that relates to an investigation.
  • A claim of attorney client or attorney work product privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described above.

“Office of Special Counsel Reauthorization Act of 2017” S. 582

Hard to give OSC much broader authority than this. No requirement that an OSC investigator establish relevance for the information, so fishing is allowed. You can pack away that little JD behind your name if you thought it would allow you to engage in confidential communications with your employer. In fact, there’s no requirement that OSC tell the agency anything other than, “Here’s a list of the materials we need, and we would like them by COB today. Thank you very much.”

Woof.

There’s no clear enforcement authority within the legislation, so we don’t know exactly how OSC can go after any agency officials who refuse to comply with its materials demand. Historically, OSC has taken the position informally that a management official who does not obey its orders is committing a prohibited personnel practice, violating the merit systems principles. 5 USC 2302(b)(12). Unfortunately, we have no case law to direct you to for clarification as to exactly how all this works out and just where OSC’s ability to prosecute an offending management official starts and stops.

Hey, maybe this is the way that the civil service should be. If this bill becomes law, it will certainly free up my Saturdays for other things when I don’t have to be concerned about reviewing thousands of documents for privileged communications. If you are an agency lawyer and your blood begins to run cold when you read this legislation, chill. We have members of Congress today who believe that the civil service should be at-will employment. Turning over the keys and the codes to the agency’s files and communications is just another drip in the drip-drip-drip of civil service change.

So, if you don’t like it, close your eyes, think of England, and get used to it. Or, as the participant in our class suggested a couple of months ago, when you get that call from the friendly OSC investigator notifying you that a whistleblower reprisal investigation has begun, just quit.

Unemployment may well be the better option. Wiley@FELTG.com

Anthony Scaramucci and OPM’s Proposed Notice Leave Rule

,

By William Wiley, August 2, 2017

You frequent readers of our newsletter know that here at FELTG we’ve been railing against OPM’s proposed rule regarding Notice Leave. That rule if implemented as drafted would require that federal supervisors retain federal employees in a work status after a decision has been made to fire them, except in the most unusual of situations, and only then after documenting the extensive consideration of other options and obtaining a variety of high level approvals. We argue that the rule should be rewritten to make it drop dead easy for managers to protect the federal workplace by removing fired employees from the worksite immediately, not several weeks after the decision to fire has been made.

Case in point: Anthony “The Mooch” Scaramucci. If you have been in a cave without wifi for the past several days, you’ll need to Google his name to find out what happened to this former federal employee. The bottom line is that, according to news reports, his supervisor decided that Mr. Scaramucci had engaged in conduct inconsistent with an efficient government, and relieved him of his duties. Hey, when there are 2.2 million workers, they can’t all be great like you and me.

Well, just think what the situation would be like if Mr. Scaramucci had been a career employee in whatever agency you work, instead of being employed at the White House. After making the decision to fire him, his supervisor would have had to find government work for Mr. Scaramucci to perform for a month because he does not fall into any of the categories of employees  that are covered by OPM’s proposed Notice Leave rule. He does not a) propose a threat, b) appear to need to destroy evidence, or c) seem inclined to destroy government property. According to OPM, employees like Mr. Scaramucci who’s removal has been decided should be retained in a work status so that the agency “can continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” (swear-to-god, they say that).

So what would be Mr. Scaramucci’ s skillset from which the government can benefit? Well, my goodness, that gentleman does know how to turn a colorful phrase, doesn’t he. Perhaps we could ask him during this post-firing employment phase to provide comment to OPM regarding its proposed Notice Leave Rule. If so, in a wonderful New York accent, he might say something like:

“Are you [freaking] kidding me? What [d-bag] bureaucrat over there thinks this is a good idea? They should go [anatomically impossible essential function] themselves.”

You have minutes left (by August 14) to tell OPM what you think about the proposed rule. Please, for the sake of our great country, tell them.  Email pay-leave-policy@opm.gov.  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.

And if you choose to use some of that delightful New York language in memory of The Mooch, who could blame you? Wiley@FELTG.com

It’s Not Too Late to Make a Difference

,

By William Wiley, July 25, 2017

In last week’s newsletter, we described OPM’s lack of concern for your life and the lives of those with whom you work. It has demonstrated this insensitivity by issuing a proposed rule that would effectively require that an agency keep a fired employee in the workplace for up to three weeks after the decision to fire him has been made. Stressed out people sometimes become violent. We cannot ignore the fact that individuals who are fired are under significant stress. Requiring fired civil servants to continue to work after their removals have been proposed and even decided is an unnecessarily dangerous policy.

You can do something about this. Whoever you are wherever you are, if you can access an email account, you can tell OPM what you think: pay-leave-policy@opm.gov.  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at  https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  You have until August 14 to act to save your life.

Here’s our latest FELTG comment, if you’re looking for a tone and format:

Dear OPM-

We have previously commented that this proposed rule should be modified so that agencies are encouraged to use Notice Leave in every case in which an employee’s removal is proposed, and that the regulations should be rewritten so that it is easy for this to be done. As drafted in the proposal, it would be exceedingly difficult for an agency to implement Notice Leave. The following rationale is in further support of my previous comment.

When drafting the Civil Service Reform Act of 1978, Congress expressed no intent that an employee whose removal is proposed be retained in a work status during the notice period. In fact, when considering the requirements of the law, it makes no sense. From the day that the supervisor notifies the employee that his removal is being proposed for misconduct, the employee need be given no more than seven days to respond. 5 USC 7513(b)(2).  That means that the deciding official can issue a decision on the proposed removal as early as day eight, after the close of the minimum response period.

It makes absolutely no sense that an agency be required to keep an employee in the workplace after a final decision has been made to fire him. These are individuals who have engaged in misconduct so bad that they deserve to be terminated. Or, they have such significant medical infirmities that they cannot perform the essential functions of their position. It defies any logic that individuals like this should be directed to report to work for 22 days after the decision has been made that they should not be employed. So why did Congress mandate a 30-day notice period if it makes no sense to keep someone in the workplace after the decision has been made to fire them?

I know the answer. And I know it because I am old. I was in the business of federal employment law when this legislation was being developed and debated in 1978. I heard Scotty Campbell, former Civil Service Commissioner and driving force behind the structure of the Reform Act, say that the extra 30 days of pay was to ease the transition of the employee out of government employment; i.e., to give him a chance to find another job. In other words, it was a way of providing something akin to severance pay to the employee as he was being removed. The purpose of the notice period is to provide money to the employee, not to try to get work from the employee.

The law says, “at least 30 days’ advance written notice.” Had Congress intended that the notice period be completed while the employee was in the workplace after the decision was made to fire him, it would have said, “at least 30 days’ advance written notice, during which the employee will remain in the workplace.” It is my opinion that Congress did not add this language because it could not conceive that anyone would think it a good idea to retain a fired employee in a federal worksite for three weeks after the decision had been made to fire him.

Apparently, Congress was mistaken.

The draft rule should be rewritten to empower front line managers to protect the federal workplace once an employee’s removal has been proposed. The rule should be amended in part as follows:

5 CFR 630.1505 Administration of Notice Leave

Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Respectfully submitted for your consideration. Wiley@FELTG.com