From Confusion, Enlightenment

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By William Wiley, April 4, 2017

OK, so I messed up. Last month, some of you might have read an article we distributed that spoke highly of the value of Last Rites agreements, deals that supervisors can cut with employees so that the employee leaves voluntarily rather than getting fired. Unfortunately, when I drafted that piece, I was just coming off a high fever and a near-death medical experience, and my brain wasn’t working too good. Given that even when I’m healthy, my brain doesn’t work too good, I was in bad shape.

The Confusion

Although I intended for the entire article to be about a Last Rites agreement, I inadvertently used the term “Last Chance” agreement once or twice. Please reread the article, mentally substitute “Last Rites” for “Last Chance,” and you’ll get the meaning I was after.

The Enlightenment

A couple of readers who caught the gaffe noted that they could use an explanation of the two different agreements. Had I not made the mistake, I would not have gotten that feedback nor would I have realized a need for greater clarity. So here comes the enlightenment from my confusing article.

Usually, a Last Rites agreement is negotiated at that point that the supervisor has reached the conclusion that the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:

  1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation to be an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal.
  2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement (sample in the back of your copy of the FELTG textbook UnCivil Servant).
  3. The employee has the choice between being fired and exercising appeal rights, or quitting and forgoing appeal rights in exchange for a “clean record.” Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee.

A Last Chance agreement, as its name suggests, is negotiated between management and the employee at the time that a decision has been made to fire the employee. Usually, it happens like this:

  1. The supervisor proposes the employee’s removal based on some specific act of misconduct or unacceptable performance.
  2. The employee responds and defends herself or asks for mercy from the deciding official.
  3. Then, the deciding official or someone on his behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that the decision to remove her has been made, but that the deciding official is willing to hold the implementation of that decision in abeyance for some specific period of time: often one or two years. In exchange for not being fired immediately, the employee agrees to whatever the agency can get: promises to perform acceptably, to refrain from future misconduct, attend anger management training, apologize, etc. In addition, he agrees to waive rights to appeal/grieve/complain anything related to the removal action being held in abeyance.
  4. If during the abeyance period the employee violates the Last Chance agreement, the agency is free to remove him immediately based on the previous misconduct that was the basis for the agreement (not based on the misconduct that is the breach). The advantage to the agency if this happens is that:
    • The employee can appeal, but he has the burden of proving he did not breach the agreement. The agency does not have the burden of proving the charged misconduct nor does it have to prove that the agreement was breached.
    • The Douglas Factors are immaterial. The employee has effectively accepted the reasonableness of a removal penalty by entering into the agreement.
    • The Board loves these things. It hardly ever sets them aside based on fraud, mutual mistake, or bad faith. Although these are traditional bases for finding contracts to be void, we can count on one hand the number of times these agreements have been found by MSPB to be invalid.

In one of my favorite Last Chance Agreement removals, the Board upheld the termination of an employee who was on an LCA when the employee breached the no-misconduct part of the agreement by sending a single email referring to a coworker as a “kiss ass.” If you draft an LCA tight and broad, you can characterize almost any act of future misconduct as a breach, acts that would not have to independently warrant removal.

Don’t forget: If you’re dealing with a collective bargaining unit employee, you need to invite the union to any formal discussions you have when negotiating agreements like these. In my practice, I have found it useful to explain Last Rites and Last Chance agreements to union officials before I ever need to use them. A good union rep will do a little research and see the significant advantage for an employee to have these options to a removal. In fact, I’ve even had union officials do a little arm twisting on their own to try to get the CBU employee to understand the advantages of these sorts of deals.

If you need more details on tactics to use and language to employ in agreements like these, be sure to sign up for our next class in the art of the deal (civil service edition – otherwise known as Settlement Week) October 30-November 3 in Washington, DC. Wiley@FELTG.com

EEO Complaints and Last Rites Agreements

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By William Wiley, March 28, 2017

Oh, boy. Another great issue raised by a regular-reader who’s just trying to do the right thing:

Dear FELTG-

I am an L/ER specialist who provides advice and guidance to managers on disciplinary and adverse actions, including removals.  It seems like we put forth a lot of time and effort into removing federal employees who then file MSPB appeals. Then, management ends up settling for a few thousand dollars and a voluntary resignation with the employee.  There is also a misconception, in my opinion, that employees who are behaving badly cannot be touched if they file a claim of discrimination.  Managers seem to be gun shy once an employee claims discrimination.  There has got to be a better way!

And here’s our FELTG response to this excellent issue:

Dear Loyal Reader,

You have raised an issue that highlights a significant change in the business of federal employment law. In our early days under the Civil Service Reform Act of 1978, a successful practitioner was seen as someone who built a good case, then litigated the devil out of it by representing the agency (or union) in deposition, hearing, and appeal, never giving an inch and fighting to the bitter end to establish not only victory, but righteousness. Some went so far as to bully and threaten their opposite party, all while strictly following procedure, with the ultimate goal of eventually being declared the “winner.”

You would have thought we were trying to get a bill through Congress, or something. 🙂

Today, for the serious practitioner in federal employment law, whether Human Resources professional, union official, or attorney, we have come to figure out that we are all better off, and the country the stronger for it, when we resolve workplace disputes without going through litigation. When you consider the resource expenditure that is necessary to defend a management action through EEOC, MSPB, OSC, FLRA, or in arbitration (into six figures for a successful management defense before MSPB), you must admit that something that achieves the same result but costs you less is a better deal for America.

And as every seasoned attorney and Human Resources professional knows, that magical cheap tool, the one that guarantees success every time without the inherent risk of litigation, is called a “Last Chance Agreement” (LCA). I cut my first one in 1979 and helped set another one last fall. In between, I’ve seen hundreds, either personally or in cases on appeal to MSPB where I was Chief Counsel to the Chairman during the ’90s. Here’s how they work:

Step 1.  The supervisor initiates the removal process. Perhaps it’s placing the employee on a Performance Improvement Plan (PIP). Or, maybe it’s a proposed removal for serious or repeated misconduct. MSPB recently reported that only about one in five removals that are initiated ever work their way to a decision by MSPB on appeal. Over at EEOC, maybe 1 in 50 formal complaints ever sees a judge. That’s because smart agency practitioners have learned the benefit of cutting a deal, with the ultimate deal being a Last Rites Agreement.

Step 2.  The practitioner, acting on behalf of the agency, offers the employee something in exchange for the employee’s promise to leave voluntarily. You see, the reason we initiate PIPs and propose removals is to get bad employees out of the workplace. If we can accomplish that goal without litigation, the citizens and their government are the beneficiaries.

Step 3.  If the employee accepts the offer, or through negotiation develops an offer that is acceptable although different from the original offer, the parties draft and sign an agreement. Those of you with the greatest and most amazing textbook in our field, UnCivil Servant, will find a sample format in the back entitled “Agency Supported Job Search Agreement.” The agency wants to be sure that it gives something to the employee in exchange for the employee agreeing to leave voluntarily without an appeal. That exchange of consideration is how a contract is made. Agencies that do not give anything have a void contract, according to both EEOC and MSPB. A common ironclad consideration in a Last Chance Agreement is for the agency to place the employee on administrative leave for some period of time in exchange for the employee quitting.

And that’s it. Effective immediately, reversible only if the employee was confused (or lied to) about some underlying fact…an enforceable contract with low cost and immediate results. Unfortunately, I’ve run into some attendees in our FELTG seminars who never heard of this wonderful accountability tool. I once had an attorney tell me that administrative leave was not adequate consideration to form a binding contract. Grrrr. Apparently that individual did not pay attention in his Contracts class in law school.

Another time, a Human Resources specialist asked why such an agreement was not a “constructive discharge.” I was forgiving of the questioner as she had been in the business only a few months and had not had the opportunity to read the case law or be trained before she came to our seminar. A similar question from someone who claimed to be experienced in our work would give me serious pause. We’ve had case law since the ’60s (originally from the old Claims Court) that finds that it is perfectly legal to give a federal employee a difficult choice to make among distasteful options. A constructive discharge occurs only when the employee is given incorrect information, or no option but to resign at the time the agreement is signed.

Finally, on occasion I have run into an uninformed inexperienced practitioner who for some reason thinks that the only way to deal with a problem employee is through the standard regulations found in 5 CFR 752 or 432. “We’ve always done it that way. Why break with tradition? The old processes have worked before.” When I hear that, I picture the person wearing hundred-year-old clothing, standing on the street corner, grumbling to anyone who will listen about “those newfangled horseless carriages. What’s wrong with a horse and buggy? I don’t really mind how slow they are, or how expensive they are to care for – and stepping around all that horse poop is not as much of a problem as people say it is.”

Bonus inside scoop: EEOC and MSPB LOVE these sorts of agreements. Legally speaking, they will say in public how these resolutions support mutual dealing with each side realizing the value in giving and taking without litigation. Practically speaking, and perhaps not-so-in-public, the good folks at the oversight agencies realize that a complaint or appeal settled without adjudication is one less hearing they have to hold and at least one less decision they have to produce; in other words, one additional chance for them to get home in time to have dinner with the kids or watch The World Series of Cage Fighting. You will not find a case decision in any oversight forum that holds that the offer of a bona fide last chance agreement – one based on fact and with consideration – has been held to be reprisal.

And, Lordy, I hope I never see an email from an agency attorney or Human Resources professional that recommends that a bona fide Last Rites Agreement NOT be offered out of fear that the EEO-complaining-employee will file a reprisal complaint. Legally, that would be what we agency lawyers like to call “per se retaliation.” Euphemistically, that would be what our colleagues who work the other side of the table, the folks who represent employees, like to call “the smoking gun.”

In my experience, after they call “the smoking gun,” they next call the Tesla dealer and say, “I’ll be ordering the upgrade model with ludicrous speed.”

If you are not utilizing Last Rites Agreements in your practice, you are failing to deploy one of the most versatile, valuable and efficient tools we have in the field of federal employment law. If you do not know enough to appreciate their value, read the case law. Attend our seminars. Talk with others who have used them successfully. Buy the UnCivil Servant textbook that walks you through the process. There is no excuse for not understanding how to avoid the death-march of EEO litigation with this alternative.

Besides, eventually you’re going to get awfully tired of stepping around all those smelly old horse droppings.

Best of luck. Wiley@FELTG.com

We Need a Theory of Discipline in the Civil Service

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By William Wiley, March 7, 2017

A “theory” is a contemplative and rationalized type of thinking, based on observations, deductions, and conclusions. In other words, it’s a reasoned explanation of the way that things happen and is predictive about how they will happen in the future.

That’s exactly what we need in the world of federal employee accountability, and I think we should be embarrassed that we don’t have one already. Probably every reader of this newsletter is involved in some way in holding civil servants accountable for their misconduct. Yet we as a professional group have no official formal theory to guide us on the best approaches to take when disciplining an employee, an analysis of why we bother to discipline at all, and an integration of that contemplative type of thinking into the laws and regulations that limit how discipline will be administered in federal agencies.

And this is a big deal. For example, do we discipline someone to punish him for an act of misconduct, or do we discipline him to correct his behavior? Depending on your theory of discipline, your answers will be different:

  • Punitive: If the goal is to punish the employee, to take “an eye for an eye,” then we select a discipline option in rough value to the harm caused by the misconduct. Back from lunch 10 minutes late, thereby delaying a coworker’s lunch by 10 minutes? You get a reprimand. Do it again in six months, another reprimand (because the harm is the same each time). For each act of discipline, we weigh the harm, then try to find a punishment of about that value to be administered. Our criminal justice system in general selects punishments in this manner. Each act of criminal behavior stands relatively independent of the others that might have occurred previously in a particular criminal’s life.
  • Corrective: If the goal is to correct behavior, when selecting a penalty option, we would consider the harm caused by the current act of misconduct PLUS the history of prior instances of discipline and their success or failure in dissuading the employee from engaging in future misconduct. The workplace theory of progressive discipline is based on this approach. If two employees come back from lunch 30 minutes late, and one of them has previously been disciplined, then that employee might receive a stronger punishment than the employee who we’ve never had to correct before. In comparison, if the goal were to punish and seek retribution, then both would receive the same penalty regardless of previous attempts to correct behavior.

The reason this is so important is that MSPB seems to confuse these two approaches to a general theory of discipline when deciding appropriate penalties. In most cases, the Board appears to adhere to the corrective approach to discipline, and does so when analyzing the Douglas Factor penalty selection factors. If the employee has prior discipline, then the agency’s decision makers are empowered to administer more severe discipline than they would otherwise. But in other cases, the Board will mitigate a removal to a suspension even though the employee has previously been suspended; e.g., Suggs v. DVA, 2010 MSPB 99. The Board has even been known to mitigate a removal to a suspension of shorter duration than one administered previously. If the goal were to correct behavior, if a 10-day suspension did not do it, why on Earth would you think that a 5-day suspension would be a better subsequent action?

In a related manner, the Board recently has moved away from a theory of discipline founded firmly in progressive discipline. The old Civil Service Commission used to teach that the federal service has a three-strike discipline philosophy:

  • First offense: Reprimand
  • Second offense: Suspension
  • Third Offense: Removal

I remember my Commission instructor in 1977 explaining the three-strike approach by saying that a federal agency does not have to continue to employ an individual who does not respond to discipline; e.g., that responding to discipline by correcting one’s behavior is an important characteristic of being a civil servant.

In comparison, MSPB has moved over the past decade toward discounting prior discipline UNLESS the discipline was administered for misconduct similar to the current act of misconduct. Taken to the extreme, this approach would mean that an agency that has 50 charges in its table of penalties would be expected to try to correct the employee’s behavior RELATIVE TO EACH OF THE 50 CHARGES prior to removing him using progressive discipline. The absurdity of this outcome highlights the fallacy of this approach.

And finally, as we’ve whined about in this here newsletter before, some of the Board’s mitigations of removals to lesser punishments make no sense if our discipline theory is to correct behavior, and make perfect sense if our discipline theory is to punish behavior. We’ve seen cases in which MSPB mitigates a removal to a 30, 60, or 90-day suspension WITHOUT ANY CONSIDERATION ABOUT WHETHER A LONGER SUSPENSION IS MORE LIKELY TO CORRECT BEHAVIOR THAN A SHORTER SUSPENSION. In other cases, we’ve seen the Board mitigate removals to a demotion WITHOUT ANY CONSIDERATION ABOUT WHETHER THAT PENALTY WILL CORRECT BEHAVIOR OR EVEN IF THE AGENCY HAS LOWER-LEVEL WORK FOR THE DEMOTED EMPLOYEE TO DO. The mitigation of removals to demotions and long suspensions is based more on the Punitive theory of discipline than the Corrective theory of discipline.

With all due respect, MSPB should not be in the business of deciding the discipline theory for the federal service. Our leadership components should do that: OPM, senior agency managers, the President himself, perhaps. MSPB should apply the law and enforce that theory, but not make it up, certainly not on the fly and as inconsistently as it has been doing recently. A discipline theory should be borne of line management concerns, not legal concerns.

So what would be the components of a good theory of discipline? Well, aren’t you lucky. Here at FELTG, we have more opinions than the new administration has vacancies in senior positions. If you are at a policy level and are considering developing a theory of discipline for your agency or perhaps for the entire federal government (yes, I’m talking to you, new OPM Director, wherever you are), here are some essential elements of a good discipline policy:

  1. Discipline should be corrective, not punitive. If a discipline option does not have the potential to correct behavior, it should not be used.
  2. There are three (and only three) actions that should be used to correct bad behavior: Reprimands, Suspensions, and Removals. No more Letters of Caution, Admonishments, Counselings, Warnings, Expectations, or singing freaking Kumbaya to the employee to try to get her to do what you want her to do. She either does it or she gets disciplined for not doing it (or you choose to do nothing, if you’re that kind of supervisor).
  3. Suspensions should be avoided. There is no evidence that a suspension is an effective negative reinforcement that acts to dissuade future misconduct. In addition, the agency pays a price when it denies itself the services of the employee via a suspension. It either gets by without the contribution the employee would have made on the days of suspension, or it has to punish coworkers by requiring them to do the bad hombre’s work while he is home watching Fox & Friends. Remember, we’re trying to be corrective, not punitive.
  4. There should be three steps in progressive discipline: 1) Reprimand, 2) Final Reprimand, then 3) Removal if acts of misconduct continue to occur. And for the purposes of progressive discipline, it is immaterial that the prior discipline was for a different type of misconduct. We’re trying to get the employee to obey ALL of the agency’s rules, not just one at a time.
  5. If you have need for the employee’s services in a lower-graded position, you can offer that position to him as an alternative to being removed. If he declines the voluntary demotion, he gets removed. If he accepts the voluntary demotion, he waives any rights he might have to challenge the action.

Get organized. Take control. Develop a theory of discipline, put it into your official discipline policy statement, and go out there and hold employees accountable. Leave the singing of Kumbaya to the lovely and talented Joan Baez. Wiley@FELTG.com

Legal Writing Advice from My Spirit Animal

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By William Wiley, March 1, 2017

When we teach our FELTG legal writing seminars, we sometimes we get a little pushback from attendees who disagree with our “philosophy.” I can understand that. Many of our seminar attendees are very smart people, some educated in the finest law schools in our country. They learned how to write many years ago. They’ve been writing with a comfortable degree of success since then. Why should they change their approach just because some FELTG instructor says that there’s a better way?

Well, maybe it would help to know that our “philosophy” is shared by some gosh-darned important people, people who are typical consumers of legal writing.  I was cleaning out some old files over the weekend and ran across an old legal writing article from a law journal. One of the contributors to the article was a US Court of Appeals judge who just happens to make exactly the same points we do at FELTG when we teach legal writing. Great minds, same paths … it always refreshing to know that really smart people reach the same conclusion that you do.

Here are some pointers from the 30-year old article, pointers that will serve as refreshers for those readers who have attended any of the FELTG Legal Writing seminars:

  • A judge’s eye fatigue and irritability set in well before page 30 of a brief. Keep your writing short and focused and avoid unnecessary language.
  • The law is dynamic and can even be exciting. There is no reason that a legal brief should be dull. Strive for good literature as well as attention-grabbing focus. Make the judge sit up and say, “Hey, this is well-written. Maybe this lawyer actually has something worth my time to read.”
  • Do not use footnotes. Thank goodness these things have in large part moved out of our business. The only exception is the footnoting to case law precedence and other legal authority that FLRA uses for the style of its opinions (a practice MSPB would do well to adopt). If it’s worth saying at all, it’s worth saying in the body of the document.
  • State issues clearly and simply. As noted in the article, “A judge simply does not have the time to ferret out one bright idea buried in too long a sentence.” As we teach in our seminars, if you have written a sentence longer than 30 substantive words, you probably have written too much.
  • A bad brief will make every conceivable argument and even some that are not conceivable. Focus. Focus. Focus. If you have more than three issues in an appellate brief, you probably have too many issues. Arguments gain no increased credibility simply because they are repeated using different words.
  • Write for the 12th grade reader. It makes you be focused, knowledgeable about the issues, and the judge will send you a Valentine’s Day card in gratitude. Seriously. 12th If a judge has to consult a dictionary to understand your writings, you have failed.
  • Your case should be stated simply in the opening paragraph. Do not start out with a list of facts and details until you have provided a framework on which to hang them. A good opening sentence to a first paragraph will start with something like, “We are bringing this appeal because …”
  • Our judge-author also cringes whenever she hears or reads words such as “clearly,” “plainly,” or “obviously.” Every time a judge sees these words, she suspects that the issue is not really clear, plain, or obvious.
  • Citations that are weak or do not support the proposition being put forward are deadly. A judge will doubt everything else you have to say if your citation mischaracterizes a precedent or a factual finding.
  • Don’t be afraid to make a concession if the facts call for it. Judges find such honesty refreshing and will give greater weight to the rest of your argument.
  • Although emotional arguments to a jury might carry the day, you should avoid emotional arguments to a judge, e.g., “This poor innocent supervisor did not reprise against the self-centered, selfish, egotistical whistleblower. He was just doing his job; a job he was hired to do by the American people, to make our country great again.” Judges are swayed by logic, not emotion.

If you’re interested in the full article, you can find it in the September 1988 edition of the ABA Journal. I’m sure you have it lying around your office somewhere. And if you’re interested in the circuit court judge who contributed her suggestions to the article, she’s moved on to another job, a job in which some say she is receiving the best medical care available in America today: Justice Ruth Bader Ginsburg. Wiley@FELTG.com.

Taking a Leak

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By William Wiley, February 21, 2017

Here’s a recent hypothetical phone call between one of our top notch FELTG reporters and a senior career employee at a big federal agency.

FELTG:  So, how’s it going, Buddy?

Civil Servant: It stinks. My new political employee boss is a stupid, incompetent, smelly jerk. He’s improperly funneling a lot of huge federal contracts to his family members. And, he just told me that his brother has been hired as a spy at CIA. How you doing?

It’s getting to where every federal employee probably needs an employment lawyer on speed dial, and to use that phone number before he says anything to anybody. Here’s how this somewhat innocuous statement looks in consideration of federal employment law.

  1. “My new political employee boss is a stupid, incompetent, smelly jerk.” This statement constitutes actionable misconduct. Yes, our civil servant may have a Constitutional right to freedom of speech in general, but a senior agency official saying something like this to a reporter constitutes the charge of Disrespectful Conduct and warrants at a minimum a Reprimand. Federal employees are free to have these thoughts, but not free to express them to a reporter while sitting in a high-level federal position.
  2. “He’s improperly funneling a lot of federal contracts to his family members.” This statement is protected and may not be the basis for discipline. By definition, it constitutes “whistleblowing,” 5 USC 2302(b)(8). An agency may not discipline (e.g., reprise against) a federal employee who discloses violations of law, as this would.
  3. “And, he just told me that his brother has been hired as a spy at CIA.” This disclosure violates a law that prohibits the release of secret information. Therefore, it is not whistleblowing and warrants not just discipline, but also criminal prosecution.

One of the problems we have as a society is that a number of people who talk about federal employees who disclose information have not had the advantage of the legal training provided by the Federal Employment Law Training Group. They give speeches, interviews on television, and hold press conferences in which they lambaste employees who leak information about the internal goings-on in a federal agency. A number of those senior officials have initiated investigations into the leaks with the intent of firing the leak-ees.

Well, here’s the deal, Lucille. There are two kinds of leaks: those that align with the second statement above and those that align with the third. If a federal manager finds out that one of her underlings leaked information to a reporter that discloses a violation of law, gross mismanagement, gross waste of funds, a danger to public safety or health, or an abuse of authority, that employee is ABSOLUTELY PROTECTED by law from discipline, reassignment, a significant change in duties, or any other personnel action that would constitute whistleblower reprisal. However, if the disclosure itself as in the third statement above violates a law against making such disclosures (e.g. the disclosing of secret information), then the employee ABSOLUTELY can be disciplined, fired, and even charged with criminal misconduct.

So when you hear that someone is going after “leakers,” keep in mind that there are good leakers and there are bad leakers, according to the law. Good leakers are whistleblowers who cannot be disciplined, and bad leakers are civil servants who disclose information prohibited from disclosure by law and who can be fired.

Unfortunately, as we wrote about earlier this month, if you leak, you may not know which of the two categories you fall into until after you’ve mortgaged the house to defend yourself in a removal action. Please be careful out there. Wiley@FELTG.com

Too Much Adjudication

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By William Wiley, February 7, 2017

As many of you readers know, here at FELTG in addition to providing open-enrollment, webinar and onsite training, we also have a number of agency legal clients to whom we provide advice and representation regarding employee conduct and performance problems. Recently, we were reviewing the judge’s decision in an unacceptable performance removal case which we had helped the agency construct. Claims of discrimination, unreasonably short PIP, hostile work environment based on age … the usual sorts of appellant claims. And of course, the claims all failed and the removal was upheld. Unacceptable performance actions are soooo easy IF you know what you’re doing.

But enough horn tooting.

The judge in this case did something that we see all too often. It seems innocuous, but it is bad for the overall jurisprudence in federal employment law. Part of the appellant’s argument that the removal was wrong was that his supervisor never counseled him prior to the PIP that his performance was unacceptable. As every graduate of our FELTG MSPB Law Week and UnCivil Servant seminars knows, there are four (and only four) requirements for firing a poor performer:

  1. The agency’s appraisal system has been approved by OPM.
  2. The supervisor has informed the employee of the critical elements of acceptable performance.
  3. The employee was PIPed after demonstrating unacceptable performance.
  4. At its conclusion, the supervisor determined that the employee’s performance was Unacceptable in at least one critical element during the PIP.

5 CFR 432.104, Belcher v. Air Force, 82 MSPR 230 (1999), and a million other cases.

Unfortunately, the judge in our case misread the regulation and the case law and added a fifth requirement: that the employee be warned PRIOR TO THE PIP that his performance was unacceptable.  We’ve learned here at FELTG, when we go through the steps to removing a poor performer that some supervisors cannot believe that a supervisor can PIP an employee without prior warning of poor performance. It just doesn’t seem right to them. Some will argue that a “good” supervisor gives constant feedback to an employee so that a PIP implementation will come as no surprise.

Well, isn’t that just delightful. Maybe indeed a “good” supervisor should give constant feedback. Maybe there should be a requirement that employees be warned about bad performance before the initiation of a PIP. But that’s not the law. Congress in 1978 did not say that a warning was necessary; therefore, it is not. Oh, if you want to warn, if you think it’s good supervision to do so, have at it. Or, get yourself elected to Congress and amend the law. Just remember: all a PIP does is say to the employee, “Do your darned job.” Should you really have to warn an employee that he will no longer have a job if he doesn’t do his job? We leave that up to your good management sense to answer that question for yourself.

The problem in this case is that by

  1. Creating a requirement not found in law, and then
  2. Adjudicating whether this “alternative” requirement indeed is present in the case,
  3. An unsophisticated reader might conclude that in the next case, the agency had better satisfy this “alternative” requirement.

Folks. Our adjudicators should adjudicate the law. In this decision, instead of adjudicating the facts of the case, the judge should have said:

The appellant raises the claim that he was not warned of his poor performance prior to initiation of the PIP. As there is no requirement for a pre-PIP warning, I will not consider this claim further.

As Supreme-Court-Nominee Neil Gorsuch recently said, “A judge who likes every outcome he reaches is very likely a bad judge…” Perhaps a pre-PIP warning is a good idea. However, until Congress says it is, it’s not a requirement.  Decisions that mislead by adjudicating issues that are not really issues are bad for our business. Wiley@FELTG.com

What is This Ominous Picture All About?

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By William Wiley, January 31, 2017

No, this is not one of the inaugural crowd photos that was deleted from the National Park Service website. It is a photo of the big celebration on the Mall a couple weeks ago to celebrate the 38th anniversary of the effective date of the Civil Service Reform Act of 1978. Were you there? Well, although no one else was either, we here at FELTG certainly were (hey, somebody’s taking that picture) because we believe in the importance of federal workers and an efficient accountable government workforce. Plus, we never pass up an opportunity to celebrate anything if food and drink are involved. Be sure to mark your calendars for next year so that you, too, can participate in the big celebration.

Of course, next year the celebration may be even smaller than this picture shows we had this year. Why, you ask? Well, if you have been anywhere other than locked in the bowels of the Mount Weather underground emergency operations center, you will have heard by now that the new administration has declared a hiring freeze for large swaths of the federal government – covering some organizations, excluding others – with Congress considering bills to include/exclude their own favorite agencies.

If you’ve been around for previous hiring freezes, you know that they are a lot like other mistakes in judgment that one might exercise. When something especially good happens to you, for many of us it sounds like a good time to celebrate by having an extra glass or three of a favorite adult libation. Of course, the next morning we wake up and realize that tying one on in retrospect probably wasn’t the smartest thing we could have done the night before. Same result with a hiring freeze. It’s easy to declare one and it sounds like a good way to improve government by reducing the payroll, but in reality, the morning-after hangover tells us that there was probably a better way to get to the same result.

We all know how a hiring freeze works. When a person quits his government job, the frozen agency is not allowed to replace the employee one-for-one. Sometimes there’s a ratio of allowed replacements; sometimes none are allowed at all. According to a recent article in the Washington Post, about 10% of the federal workforce leaves government each year, almost all doing so voluntarily. We don’t have statistics regarding where they go next, but it would seem logical that those who do not retire move on to other jobs in the private sector.

Stay with me as we climb this logic tree. For the sake of having easy numbers, let’s say that 10 out of 100 federal employees (10% of the federal workforce) are toxic; e.g., are bad employees who are not earning their pay check. In a non-freeze year, 10 employees would quit, 10 new employees would be hired, and the percentage of bad employees would stay at 10%.

Now, let’s look at a freeze year. I think it’s fair to say that comparing great employees to toxic workers, the good employees are more likely to leave government than are the weak employees. Good employees get better offers; bad employees often know they are lucky to have a well-paying government job. The good leave. The bad stay put. Again, using easy numbers for illustration, if 10 employees leave the fed during a hiring freeze and are not replaced, we go from 10 bad employees out of 100 to 10 out of 90. That means that now 11% of the civil service is composed of bad employees. If we lose another 10 good employees the following freeze year, we now have 10 toxic employees for every 80 good employees, a bad-to-good ratio of 12.5%. And so on, and so on. Use your own numbers, time frames, and ratios if you prefer, but one thing is clear. If you accept the premise that good employees are more likely to leave government than are bad employees, eventually you will have a federal workforce with a higher percentage of non-performing employees than you would without a hiring freeze.

That’s what I call an unwise hangover.

Another aspect of a hiring freeze that will resonate with readers who have attended any of Deb’s dynamite EEO law seminars regarding the accommodation of employees with disabilities. As all FELTG-trained practitioners know, when working with a disabled employee, an agency is first required to try to modify the employee’s current position so that she can perform its essential duties. If that is not possible, the disabled employee has two other entitlements. In priority order, they are:

  1. Placement into a vacant position for which the employee is qualified, at the same grade anywhere one is available within the agency.
  2. Placement into a vacant position for which the employee is qualified and for which the agency is recruiting at a lower grade.

With a hiring freeze, there are no vacant positions available at any grade. Therefore, the only option for the agency when confronted with a disabled employee who cannot perform an essential job function is removal. The two employee entitlements above become meaningless.

There may well be good reasons for a hiring freeze. Even so, there are also bad outcomes that result from a hiring freeze. One would hope that the decision to impose a freeze is reached only after serious consideration of the morning-after. Wiley@FELTG.com

A Message for DHS and Other Suspenseful Agencies

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By William Wiley, January 24, 2017

While reviewing Board decisions that closed out 2016, I ran across a couple of Opinions and Orders over at DHS that were issued on the same day:

  • 45-day suspension: Figueroa v. DHS, NY-0752-14-0203-I-1 (December 22, 2016)(NP)
  • 30-day suspension: Flournoy v. DHS, SF-0752-16-0411-I-1 (December 22, 2016)(NP)

DHS won both appeals with the Board affirming each suspension. Nothing to learn from MSPB’s analysis of the penalty and the evidence supporting charges. So why pay attention to these two actions? Well, for one simple reason:

Why, oh why, did DHS implement these two long suspensions rather than shorter suspensions that would not be within MSPB’s jurisdiction (i.e., 14-day suspensions)?

No agency in its right mind wants to have to defend a disciplinary action before the Board if it does not have to. GAO estimates that an agency defense at MSPB costs the government about $100,000 even if successful; more if the appeal is lost. The agency retains the unilateral right to set the length of a suspension. Why would it ever suspend an employee for more than 14 days and have to defend itself before MSPB when it could just as easily suspend for fewer than 14 days and at worst have to defend itself before an arbitrator, half of whose fee is paid by the union and where the grievant doesn’t have rights to discovery? In addition, if an agency suspends an employee for, say, 45 days, that’s 45 days that it is deprived of the employee’s services, causing coworkers to have to carry an extra load for the duration of the suspension. Given the loss of productivity in a long suspension, the significant resources required to defend in a Board appeal, and the rights that Board appellants have to subpoena documents, conduct depositions of agency managers, and utilize all the other tools of discovery not available in arbitration, why ever do a long suspension?

One could argue that a longer suspension is more likely to correct behavior than a shorter one. Well, one who argues that is doing so without any support in research (facts may not restrain some politicians, but they critical to those among us with a reasoned approach to life). There have never been any studies published in the history of the civil service that support the conclusion that longer suspensions are stronger motivators of correct workplace behavior. So this is not a good reason.

Or, one could argue that the employee “deserves” a longer suspension because of what he did. If he deserves a longer suspension, he probably deserves to be fired. Besides, we don’t discipline to punish for the sake of punishment. We discipline to correct behavior. Ours is not a system based on retribution.

Or, perhaps there’s a concern that the Board will find a removal to be an unreasonable penalty, but a long suspension to be within the bounds of reason. The agency might be trying to avoid a penalty mitigation on appeal by implementing a suspension rather than a removal. Although this rationale has more appeal than the first two, it still fails on analysis:

  1. There is an exceedingly fine line between an act of misconduct that warrants removal and an act of misconduct that warrants a 45-day suspension. Unfortunately, we don’t really know where that line is until at least two of the Board members agree where it should be. Maybe it’s time in the civil service to roll the dice a bit more. Hey, if Congress is going to beat us up for not firing enough people, at least if you have to take a mitigation of a removal to a suspension on appeal to the Board, you can blame MSPB instead of your agency. Who knows; if you do that maybe The Hill will pass some special laws to get your agency out from under those mean old Board members. Avoiding blame is an important part of political life, you might have noticed.
  1. Think strategically like a gambler:
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the employee staying fired, you have one less bad employee to worry about.
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the penalty being mitigated to a suspension, you’re out maybe 100 days of back pay and perhaps some attorney fees.

Is the chance of getting rid of a bad employee permanently worth the risk of having to pay out maybe $25,000 to $50,000 if the removal happens to be mitigated on appeal? Thank goodness that’s not a decision that those of who claim to be advisors have to make. In my career, I’ve certainly run into senior managers who would have happily risked that amount to get rid of an unproductive toxic individual.

Whether you work at DHS or some other agency, if you’re still looking for a New Year’s resolution, make it to avoid long suspensions. If the dude doesn’t deserve to be fired, suspend him for no more than 14 days. If he indeed deserves more than a 14-day suspension, fire him. In the long haul, you’ll be the happier for it.

Wiley@FELTG.com

So, What Do You Do?

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By William Wiley, January 11, 2016

It’s a common question. One that most of us have a title-like elevator-answer for:

I’m an attorney.

I’m a human resources specialist.

Maybe even: I do labor relations for the XYZ Agency.

Yes, but what do you actually do when you’re performing in these roles? If you are an employment law practitioner, did you think to say:

I help supervisors fire bad government employees.

For some of you readers, that should be Line Number One in your mental position description. But we don’t often articulate our roles that way. It sounds mean. It acknowledges that the government has some employees who do not do their jobs at a minimum level of performance or who violate workplace rules. However, in these times of clarity and transparency, perhaps we should acknowledge that this is a major responsibility that many of us have.

Although it’s our job, I don’t think any of us relish the idea of doing it. We wish that there were no bad civil servants who could not be rehabilitated. We would prefer if the darned process wasn’t so confrontational. We hope that supervisors figure out how to otherwise deal with problem employees, by motivating them to work better or encouraging them to leave government voluntarily through some bi-lateral agreement. But when push comes to shove, when the job is just not getting done and nothing else works, a supervisor is left with two options: either approve that a non-productive employee continues on the government payroll being paid tax payer dollars to which he is not entitled, or fire him. When the option is firing, we advisors are obligated to step up to the plate, put on our big-girl/big-boy pants, and do what needs to be done.

If we acknowledge that this is our job, we also acknowledge that we are not the action officials. It is the front-line supervisor at most every federal agency who is delegated the responsibility to make these decisions. We are but advisors, counselors, technicians of the law. When a supervisor comes to us with a bad employee, it is our job to say, “What do you want to do with this guy?” Instead, what we often hear in our FELTG supervisory training classes is that “HR won’t let me do that” or “That’ll never get past legal.” Well, those of us with JD and HRS after our names were not hired to make these decisions. It’s the line managers who decide the outcome and we technicians who help them get there. At least, that’s the way it’s supposed to work. Yet in too many agencies we advisors frustrate managers by telling them they can’t do something that they want to do that in their opinion, would allow them to manage the government better.

Play this mind game with me for a minute. What if you were a private company – law firm, HR consult, whatever – and you held yourself out as a service provider for dealing with problem employees. If a manager came to you for advice on how to fire someone, and your response was that they should not fire the person, then you wouldn’t be in business very long. Of course, if what they wanted to do was illegal, you could tell the potential client that it wasn’t legal, and that you wouldn’t be part of something that was illegal. That’s just fine. But if you gave your advice as to the pros and cons, and the client wanted to go through with the firing anyway, I would think that you would help them do that. It is their responsibility to make those decisions and they bear the blame or credit if their decision is a good one.

Here’s an example of what I see all too often. In a classroom of attorneys I was working with a few months ago, I gave some standard advice for how to handle an employee in a particular situation. One of the participants disagreed and said that if I did that, the employee might be able to claim that the agency had interfered with her rights in the future should criminal charges be brought. There was no question as to whether the approach I was suggesting be taken was best for the supervisor. It was. However, the agency attorney who disagreed felt it might not be best for the employee. And without any case law to back up that speculation: “It might happen.” Well, it MIGHT HAPPEN, and I MIGHT NOT CARE because the employee is not my client. The agency supervisor is.

We should think of ourselves as service providers. The services we provide are intended to help agency supervisors, managers, and executives run the government. Next time a supervisor asks you for assistance, say to yourself, “How can I help this supervisor do what she wants to do?”  If instead you find yourself saying, “No, you can’t do that,” then please go re-read your mental PD.

Wiley@FELTG.com

A Use-or-Lose Holiday Gift from MSPB

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By William Wiley, January 3, 2017

It’s that time of year: taking it easy, eating waaaay too much sugar, giving gifts. Even MSPB is not beneath recognizing the holiday spirit with a little gift of its own to all of us in the world of federal sector employment law.

Sometimes MSPB presents are not particularly desirable, like the crazy disparate-penalty approach to comparative penalties and the dark-road of diminished respect for prior acts of discipline when it comes to selecting an eventual removal. Those are some gifts we’d return if we could, but even Nordstrom’s won’t take back that stuff.

This year as the holidays approached, the Board’s insightful and productive Office of Policy and Evaluation (OPE) bestowed on us all a gift that hopefully will provide some needed insight for the new administration as it develops it plans for draining the civil service swamp. As do many on Capitol Hill, the incoming President has spoken loudly about the need for more accountability in government, for federal agencies to be run more like businesses than as governmental agencies. Well, that all feels good in the gut and sounds powerful out there on the campaign trail. However, here at FELTG we prefer data and information rather than feelings and campaign speeches. Fortunately, our end-of-year present from MSPB’s OPE is just the sort of meat we all need to chew on as decisions are being made about a “new” civil service.

In mid-December, MSPB issued a report entitled “Addressing Misconduct in the Federal Civil Service: Management Perspectives; Supervisors Report the Greatest Barriers to Addressing Employee Misconduct Come from Within Agencies.” Given that there’s a wide-spread belief that agencies don’t fire enough bad employees, it would be helpful to have some data about why that might be. Well, happy New Year to us: OPE’s research provides all those policy-makers to-be in the White House and on the Hill just that sort of information:

  • Finding: About half of all proposed removals result in the employee leaving voluntarily. This is great news for agency officials. Although we must put cases together in preparation for an eventual challenge in an appeal, the reality is that it is unusual for us to actually have to defend a removal before MSPB. To this half of proposed removals that are never consummated because the employee quits, our FELTG experience would add to it a large group of employees who are indeed terminated, but who never file an appeal (old OPM numbers estimate that at about half of all removals), 60% who settle without a hearing after filing an appeal, and another group of employees who are poor performers who are PIPed. Our experience is that 50-60% of those employees leave voluntarily before removal is even proposed, sometimes within days of the PIP being initiated. Bottom Line: Although we always need to be prepared to defend a removal on appeal, maybe one in ten removal actions that get started actually make it to review by MSPB.
  • Finding: Fewer than half of first-line supervisors said they were confident they would be allowed to replace an employee fired for misconduct. Interestingly, 60-70% of managers and executives believe that replacement employees will be approved if an employee is removed for misconduct. It’s a bit unclear whether these managers and executives are referring to their ability to replace their own subordinates who are fired for misconduct, or to the ability of all supervisors to replace fired subordinates. Perhaps the new administration should give consideration to this back-fill dilemma when it starts trying to drain the civil service swamp. If you can accept that supervisors are hesitant to get rid of bad performers now because of this fear of not being able to replace them, just think how hesitant they will be to fire bad employees with a hiring freeze in place. A poor performer often is seen as better than no performer. Bottom Line: Check with upper management before you initiate a removal if you are concerned about the ability to back-fill once the employee is gone.
  • Finding: The greatest perceived barrier to a front-line supervisor initiating a removal is the agency’s perceived culture against firing bad employees. This is another official finding that parallels what we here at FELTG have run into when we teach accountability. “Upper management at this place doesn’t want us to remove employees. Human resources and legal are afraid of discrimination complaints, claims of whistleblower reprisal and the dreaded OSC, the union and it’s unfair labor practice charges and grievances, etc.” Supervisors feeling that they would not be supported by senior management and their discipline advisors was the Number One reported reason that bad employees are kept on the payroll when they should be terminated. Bottom Line: Hey, you managers and advisors out there. Do your damned jobs. Change the culture; not into one where everybody gets fired, but one in which everyone gets held accountable. With fairness and gusto.
  • Finding: The second greatest barrier to firing bad employees was the low quality of service provided by the human resources office. Woo, doggies. You regular readers know how we feel about that here at good old FELTG. We have howled against the moon for 15 years about the low quality of service provided by some human resources offices around the government. Too many employment law practitioners don’t know the basics of our system, and worst of all, don’t know what they don’t know. Not only do they not know what to do, they sit in their offices and hope that no one asks them for advice so that they can focus on other things, like lunch. If you are a human resources employment law professional, and you want to know if you are a good service provider, simply ask yourself three questions. During 2016, did you:
  1. Attend any FELTG training?
  2. Call any supervisors and ask, “Do you have any bad employees I can help you fire today?”
  3. Read every issue of the FELTG Newsletter?

Bottom Line: Two yes’s out of three questions, we will consider you part of our family and a decent service provider.  Three out of three, we are honored that you move among us. Free coffee at all of our seminars for you.

This OPE gift is a wonderful holiday present. We encourage you to read it in detail because it is just full of gems of wisdom beyond the ones we’ve highlighted here: http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1363799&version=1369157&application=ACROBAT. If you run into any newly-minted Trumpettes as the new administration unfolds, maybe be sure they get a copy of it, as well.

Easier still, here is language that if it were embodied in a single email from your agency’s new Presidential appointee could change the course of civil service history. FELTG copyright hereby released should you choose to use it:

To all front-line supervisors, managers, executives, human resources specialists, and legal advisors:

From today forward, ours will be an agency built on employee accountability. If there are employees at this agency who are non-performers or who do not obey our rules, they should be disciplined and removed from service, promptly and fairly, if they do not improve their behavior. If a supervisor removes an employee for misconduct or performance, I personally guarantee that suervisor will be able to replace that employee. All agency discipline and performance advisors will be trained and continually evaluated by the professionals at FELTG to ensure the adequacy of the service they provide and the possession of the knowledge necessary to hold civil servants accountable.

FELTG. Always thinking ahead of the civil service curve. Wiley@FELTG.com