And Now a Word With … OPM Director Kiran Ahuja

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By Dan Gephart, April 25, 2022

A key milestone in the Biden Administration’s Diversity, Equity, Inclusion, and Accessibility efforts passed by quietly last month, as the deadline passed for agencies to submit their DEIA strategy plans to the Office of Personnel Management.

With the passing of the deadline, we reached out to OPM Director Kiran Ahuja to ask: Now what?

“OPM will be leading efforts to provide recommendations and technical assistance support to agencies as they implement those plans,” Ahuja said. “We are hoping to see agencies demonstrate a well-coordinated and implemented vision and strategy of DEIA priorities, policies, and practices. The agency should show how it is working in a collaborative effort with leadership and accountability at the highest levels of agencies, cross-agency partnerships, data-driven approaches, transparency, and resource investments to ensure success. Ideally, agencies should be able to show progress in executing their DEIA strategic plans, as well as monitor progress and make appropriate adjustments.”

Director Ahuja took time recently to answer our questions about DEIA efforts, recruitment efforts, and telework.

DG: How does the creation of the Chief Diversity Officer position impact the roles of each agency’s EEO office?

KA: Earlier this year, OPM released guidance encouraging federal agencies to appoint Chief Diversity Officers – or CDOs – who will work with senior leaders and others to elevate DEIA work across their respective agencies, including identifying new sources of talent through engagement with underrepresented communities. This includes, but is not limited to, veterans, people of color, persons with disabilities, older workers, individuals who live in rural communities, LGBTQ+ individuals, first generation professionals, and others who have been denied opportunities. To leverage expertise and maximize impact, we’re also looking at convening a CDO council for engagement across the federal government.

While the Chief Diversity Officer (CDO) and EEO Director each have distinct responsibilities, they are also intended to be complementary. They are each responsible for advising the agency head on matters related to different aspects of DEIA. EEO and CDO communities work together to analyze data to assess progress, evaluate root causes and build evidence on key questions regarding DEIA initiatives.

Federal agencies are being asked to establish Chief Diversity Officers in addition to EEO Directors. The EEO Officer is part of the existing DEIA infrastructure within federal agencies. The DEIA infrastructure generally includes the offices of equal employment opportunity, human resources, budget, human capital, chief data, and information management.

DG: Other than the actual virus, what is the biggest obstacle for agencies implementing re-entry plans?

KA: Throughout the pandemic, more than two million civilian (non-postal) Federal employees have been hard at work, protecting our country, providing critical services, and combatting COVID-19 and its impacts.

We now have the tools in place to allow us to safely increase the work we do in person together. As we come back together in our workplaces, we must build on the innovation and technology that we put to work over the last two years to make us even more efficient, resilient, and effective.

Recently, you’ve likely noticed that public-facing federal government offices have been open for longer hours. There are more in-person appointments available for those who need them, more walk-up services, and more in-person interactions. The federal workforce has made it clear that they are extremely resilient and hardworking, even in the toughest of unprecedented times. The federal government will continue to embrace workplace flexibilities as we enter this new hybrid work transition.

DG: 45 percent of all Federal employees teleworked in 2020 and I imagine it was a similar number in 2021. Is that a reasonable figure in non-pandemic times?

KA: I think it’s important to remember here that a lot of our colleagues continued to work in-person during the pandemic. Many showed up in person for the American people because their specific job is tied to a physical location.

Others adapted quickly to working from home, and what we found is that workplace flexibilities like remote work and telework were key to ensuring mission-critical services continued for the American people. We are also learning that greater telework and remote work makes the federal government a more competitive employer as most sectors embrace workplace flexibilities in post-pandemic work environment.

We are currently in a phased transition into a hybrid work environment that combines some in-office work with some telework. This is all dependent on if the employee’s role is conducive to telework, of course.

Our goal is to couple the efficiency and work-life benefits that telework offers with the important benefits of in-person interaction that have been on hold for so many because of this pandemic, like direct person-to-person interaction and collaboration.

DG: What specifically needs to change for agencies to be able to compete more effectively for top talent – and retain them?

KA: The federal government wins on mission – if you want to see the positive impact of your work on the world around you, there’s no better place to build a career. Where else can you find people curing disease, combatting climate change, and landing rovers on the surface of Mars, all in the same workforce? And when you’re in the business of achieving the unachievable, you need cutting-edge skills, fresh perspectives, and people who are hungry to have an impact.

OPM is doing a number of things to meet that need and help recruit early-career professionals to the federal workforce:

  • We created new hiring rules that allow agencies across the government to hire post-secondary students and recent college graduates for positions that pay up to $75,000. This opens the door to so many people who may not have long resumes to point to, and to people who would face financial hardship if their only option was an unpaid internship.
  • We’re looking into ways to reform long-standing opportunities like the Pathways Program, which offers internships and fellowships, including the prominent Presidential Management Fellowship.
  • And we’re renewing partnerships – and in some cases, forging new ones – with four-year colleges, community colleges, trade schools, and Minority Serving Institutions (MSIs), including Historically Black Colleges and Universities (HBCUs), Hispanic-Serving Institutions (HSIs), Asian American Native American and Pacific Islander-Serving Institutions (AANAPISIs) and schools with large Tribal student populations.

Targeted recruitment — whether early or mid-career talent — and a focus on workplace flexibilities will help us recruit and retain a strong workforce. We see the federal government as the model employer. The federal government is the largest employer in the nation, with well over two million civilian employees working in every state across the country. The policies we set for our workforce and the way we treat our employees matters, and it matters to countless more who are impacted by the example we set. We want every worker in every sector across our economy to see how we treat our employees in the federal government and understand that they deserve nothing less at their workplace, too.

Gephart@FELTG.com

And Now a Word With … FLRA Chair Ernest DuBester

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By Dan Gephart, April 18, 2022

Ernest DuBester holds the Federal Labor-Management Relations statute close to his heart.

Literally.

During our recent conversation, the FLRA chairman pulled a mini printed version of the statute from the left breast pocket of his shirt several times to emphasize the points he was making. Those close to the chairman know he likes to carry that Pocket Statute with him everywhere he goes.

As Chairman DuBester’s nomination for another FLRA term remained stuck in committee, he took time to discuss the FLRA’s plans for returning to the workplace, the status of the Authority union, the legal issues that he’s most looking forward to addressing, and more.

[Editor’s note: Join FELTG for FLRA Law Week May 9-13 to get up to date on all things federal labor relations. Sessions will run from 12-4 pm each day. Early bird pricing ends this Friday, so register now.]

DG: What has been the biggest challenge the agency has faced during the pandemic? And what did you learn from it?

ED: The pandemic has had a huge effect on our society. And it has certainly had a big effect on the FLRA. From Day One, and it continues today, my focus has been on employee well-being, employee health and safety, but also combined with what I call the appropriate and requisite ability to run an agency that fulfills its mission. That has been the hard thing.

There were a lot of things that were not only my preference to do in person, but that I think are actually done better in person. (When the pandemic hit), they had to be done virtually or remotely. Converting to mostly an all-virtual workplace is huge.

For example: One of our responsibilities, which stopped for over three years during the Trump Administration, is that we handle unfair labor practice cases, and we have hearings. Those are run by our Regional Offices and Office of General Counsel personnel. We haven’t been able to do those in person.

Similarly, and related to that, our administrative law judges have the responsibility then with respect to unfair labor practices. They hold ULP hearings at a later stage. Those decisions may come up to me and my colleagues, the other members, on what I’ll call appeal.

The administrative law judges have had to move to virtual hearings. And that’s a big thing, not only practically and logistically. It really has a huge bearing on the way you relate, interact, and share information.

I’m all about effective communication. To me, it’s the secret of everything. It’s certainly the secret to effective management-labor relations, which are based on relationships and human behavior, in particular. There’s no doubt, and I’ll say this emphatically: The ability to communicate and solve problems and hopefully to address and resolve disputes more effectively requires effective communication. And you can’t do it as well on a computer, or telephone or email.

Our employees are dedicated employees. They have gotten, in some respects, accustomed to working remotely, and to some extent enjoy the benefits. We’re all human. We don’t like to commute to work. So, we’re going to have to practically work through how best to harmonize those kind of work/life issues for individuals, and that’s not just employees, but it’s managers and supervisors, too. And it’s leaders, too. What I call the practical dimensions of the job is about labor-management relations, and it requires human interaction to be most effective.

DG: What is the status of the union of Authority employees?

ED: When I was made Chair over a year ago, the first thing I did on Day One was to restore recognition of our in-house union. As you may know, the FLRA had recognized that union since the first year of its existence in 1979, through Republican and Democratic administrations alike, until the end of 2018.

We went through nearly 40 years having recognized the union, and then that was ended in 2018.

Just for context. That recognition initially back in 1979 had been done after seeking an opinion from the Department of Justice whether we could do that. Under our own statute, we’re one of the agencies exempt from coverage. We’re not covered by our own law, for practical reasons. But then the question is: Could we voluntarily recognize a union in-house? The answer came back in a very thoughtful and thorough memo from Justice that said, yes you could, with a couple caveats. For example, our employees couldn’t be represented by a union that had business before us.

Last year, I restored recognition. It was very important to our employees. Morale had already plummeted. From Day One, we’ve been in negotiation with our union, and discussing with them several aspects that involve the pandemic, wrapping up three different agreements:

1.    Telework.

2.    Remote work.

3.    And then have begun to consider the future and a re-entry plan as directed by OMB and OPM. We’ve been negotiating a re-entry plan which we’re about to finalize.

[Editor’s note: The FLRA’s telework Memorandum of Understanding allows employees in appropriate circumstances to work from somewhere other than their assigned FLRA office for up to 8 days per pay period. The remote work MOU allows employees, in appropriate circumstances, to work from somewhere other than their assigned FLRA office more than 8 days per pay period, and generally does not require them to come into their assigned FLRA office on a regular basis. This agreement is moving forward as a 24-month pilot program. The parties will evaluate the pilot and decide whether to continue it past 24 months.]

So that restoration of the union has led to the negotiation of these three agreements that are offshoots of the pandemic, giving our employees a voice. I anticipate that we’ll be returning to the office in a different way than existed the last two years, and in different ways than existed before the pandemic hit.

DG: When do you expect to return employees to the physical office?

ED: We agreed we wanted to see 14 straight days with a reduction in transmission rates recorded. We still have a couple regional offices located in areas where we haven’t nailed that down yet. Then we have a 30-day notice provision before we transition back. I guess somewhere around mid-May, we’ll be getting ready to transition.

DG: What are the most important legal areas you will look to reexamine if given the opportunity?

ED: If you followed us closely, we got into areas over my objections that were based on what are characterized as requests for policy guidance. It wasn’t a specific case or controversy between parties, it was just some entity requesting policy guidance in certain areas. Those entitles were varied, some were parties before us, but eventually some of them weren’t.

In my view, it’s somewhat analogous to rulemaking. It’s my view that those kinds of serious matters should be addressed and resolved by cases. But many were over my dissent, and I dissented substantively as well.

I think it’s important to say this to set the table. And I think it’s historically factual.

Three Federal agencies oversee three collective bargaining laws – the NLRB, the National Mediation Board, and we have the FLRA, which, as you know, has jurisdiction over approximately 2 million Federal employees. I’ve worked at all three agencies. Throughout its history, at the NLRB, you’ve seen a lot more political swings in their case law and decisions. It does change. Sometimes, it changes by administration. Certainly, long-standing precedents are overturned at certain points in time.

That hadn’t been true of the FLRA in the same way. With a couple of exceptions – and only a couple — we’d had a lot of long-standing precedents that have been in existence for decades. Then, in the last 5 years, while I’ve been in the minority, there has been a unique noteworthy change in our history. I don’t think you can deny, there’s been a very purposeful objective of overturning long-standing precedents that had continued through Republican and Democratic Administrations. To me, with all due respect because people are entitled to their opinion here, they also reflect an undermining of what I consider to be some of the key policy underpinnings that are reflected in this statute.

When this statute was enacted, it was discussed in the context of what is unique to the Federal sector, not just the public sector. Everybody says (the statute) was modeled on the National Labor Relations Act. It was, in some respects, but that is really misleading. It’s a much different statute in many ways, based on policy considerations in the Federal sector, and those have been violated in my opinion.

Here’s one good example: It’s important to every workplace in every sector, but there’s a unique importance of grievance arbitration in federal labor management relations. Why is that so? Because of a lot of other decisions that were made.

Number one is (Federal unions) don’t have the right to economic weapons. They don’t have the right to strike under our law. So, you need mechanisms to resolve disputes.

Grievance arbitration was made paramount. Every agreement must have a grievance arbitration provision. The definition of grievance is very broad in here. What I would say: The language of our statute makes clear and other decisions also made clear that arbitrators doing Federal sector work should be accorded the same deference we accord them when doing private sector work.

One of the FLRA’s most important responsibilities is we sit as the surrogate for the Federal courts in handling appeals or exceptions for grievance arbitration awards in the federal sector.

Arbitrators should be given that deference. Now I will say that that’s my very strong view, but like on everything, don’t take my word for it. I will tell you that the DC Circuit has come up, in a number of decisions, and overturned my colleagues, tracking my dissent.

In 2020, the DC Circuit overturned my colleagues and said, as I said to you today and throughout my professional life, the FLRA is required to apply the deferential standard of review used by the Federal courts in the private sector. That principle needs to be enshrined and re-established. It’s so central to the day-to-day workings of labor management relations at any agency over which we have jurisdiction.

If you look at the decisions that have discarded longstanding precedent. and they fall into different areas, the common theme there is that they’re restricting access to the rights provided here, or they’re limiting the scope of collective bargaining, one of the purposes of this law.

To me, it doesn’t just reflect what I would call a different view on policy, it reflects a disagreement with the law. One of the unique attributes of this statute and a striking contrast to the law in the private sector under NLRB is the narrow scope of bargaining. It’s already very narrow. You don’t bargain over anything under which there is a Federal law, like wages, salaries, fringe benefits. They are essential to most bargaining anywhere else.

And (the statute) is pro-management. To try to whittle it away, little by little, to me, is basically saying we don’t believe in the statute, so that’s my concern.

Beyond what I mentioned, it’s important to focus and highlight the underlying policy around grievance arbitration. So many areas need to be addressed. Just look where precedent has been overturned … Just speaking generally, and without prejudging how I would rule in any particular case, I think the precedent was probably for the most part well-founded and needs to be restored.

Gephart@FELTG.com

MSPB’s FY 2021 Report – the Last of its Kind for a Long Time

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By Deborah Hopkins, March 28, 2022

Last month, the MSPB issued its annual report from FY 2021, and just like the reports from the several years preceding, there were ZERO decisions on Petitions for Review, because there were ZERO members on the MSPB.

Well, that’s all changed because as of March 4, 2022, we now have a quorum. That’s right, after 1,882 days without a quorum, the Senate confirmed Vice Chair and Acting Chair Raymond Limon, and Member Tristan Leavitt. As a result, the backlog of 3,600-plus cases is starting to move. That means the FY 2022 report will contain something other than zeroes at the Board level for the first time since FY 2017.

In the years without a quorum, the Board was still operating on the lower levels, and I’ve highlighted some statistics in the 2021 report you might also find interesting:

  • 4,649: The number of appeals received (of those, 1,881 were adverse actions; 173 were performance-based actions; and 453 were Individual Right of Action).
  • 3,082: The number of appeals dismissed
  • 1,567: The number of appeals not dismissed
  • 724: The number of appeals settled (a 46% settlement rate)
  • 843: The number of appeals adjudicated on the merits

Of those appeals that were adjudicated on the merits:

  • AJs upheld agency actions 80 percent of the time
  • AJs overturned agency actions, or ordered corrective action, 16 percent of the time
  • AJs mitigated agency actions 2 percent of the time

Allow us to do the important math for you: Out of 4,649 appeals filed, only 157 of those actions were overturned or mitigated, which equals 3.38 percent. So, agency actions stood as taken in 96.62 percent of cases last year.

The agencies that had the top 5 highest number of appeals, unsurprising given the size of these agencies:

  • Department of Veterans Affairs
  • Department of the Army
  • United States Postal Service
  • Department of the Navy
  • Department of Homeland Security

Because of the continued lack of quorum, MSPB was unable to issue any formal reports to the President and Congress in FY 2021. But according to the report, “MSPB published three editions of its [Issues of Merit] newsletter, which included articles on various topics such as pay equity, recruitment and hiring, telework, online training, disability retirement, performance management, and supportive work environments.” MSPB also published five research briefs which are linked in the report.

With all that’s happening, and more about to happen, it’s a perfect time to register for the webinar Getting Back on Board: An MSPB Case Law Update, planned for April 20, where we’ll be covering the first cases coming out of the brand new MSPB. Finally! Hopkins@FELTG.com

And Now a Word With … New MSPB Vice Chair Raymond Limon

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By Dan Gephart, March 21, 2022

It’s just four words, but we are so thankful that we won’t have to include them in any more presentations or articles about the Merit Systems Protection Board. I’m talking about, of course, “lack of a quorum.”

On March 1, the Senate confirmed Raymond Limon and Tristan Leavitt as members of the MSPB. And then on March 4, they were sworn in, officially ending the five-year-and-two-month stretch in which the Board did not have enough members to vote on any Petitions for Review (PFRs), among other stalled functions.

Member Leavitt had been serving as MSPB’s General Counsel since late 2018. In the absence of any Senate-confirmed Board members, he served as the agency’s acting chief executive and administrative officer starting in March 2019.

Vice Chair (and current Acting Chair) Limon is new to the Board, but he comes with a resume that seems particularly fitting for this position. He had an extensive career as a human resources professional, including stints as Deputy Assistant Secretary for Human Capital and Diversity and Chief Human Capital Officer at the Department of the Interior, as well as similar roles for the State Department and Corporation for National and Community Service. He also served as an attorney in the Office of Personnel Management’s Office of General Counsel.

Vice Chair Limon very graciously took some time to answer our questions last week and offered a glimpse into the Board’s approach to that huge backlog of PFRs.

DG: Tell us how you think your experience, particularly in HR at DOI, will help you as you transition to this new position?

RL: Thank you for this opportunity to share my excitement and acknowledge the deep appreciation I have in helping to lead this amazing agency. I am honored for this privilege and plan to contribute the best way I can to the Board’s mission. With that said, I do feel the numerous HR experiences gained over those years have prepared me for this position.

I have over 25 years as a federal career civil servant and 22 years as an executive promoting and defending the merit system principles through my management, policy and legal experiences at various title 5 and non-title 5 Executive branch agencies, while serving in small and large agencies. After practicing law in the private sector, I joined OPM’s Office of General Counsel where I litigated before the MSPB, EEOC, and FLRA and coordinated with OSC and DOJ, along with dozens of federal agency partners.

After enjoying success as a litigator, I accepted an executive position to lead OPM’s Office of Administrative Law Judges (OALJ). While managing OALJ, I oversaw the ALJ personnel system that involved the application, examination, selection, compensation, classification, movement, and oversight for all ALJ positions serving in over 30 agencies. After OPM went through a significant realignment in 2003 and the functions of OALJ were divided among three new OPM divisions, I became OPM’s Director of Compliance and led its merit system compliance reviews for all federal agencies across the nation.

In 2005 and based in part on my earlier experiences as a U.S. Peace Corps Volunteer serving in Honduras, I joined the Corporation for National and Community Service (CNCS). CNCS manages domestic national service portfolio that included AmeriCorps, VISTA, Senior Corps, and the National Civilian Community Corps (NCCC).

In this position, I became the first-ever Chief Human Capital Officer (CHCO) for CNCS and developed and implemented an HR system outside of Title V. While in that position, I was selected by the 100-plus small agency council members to lead the Small Agency HR Council, and in 2006, I represented all small agencies on the CHCO Council. In 2012, I left CNCS to join the State Department and continued serving on the CHCO Council as the Director, Office of the Civil Service HR Management. I had the privilege to work among dedicated civil and foreign service professionals and I was the executive sponsor that rolled out a first-ever developmental program that allowed civil and foreign service employees to go on short-term rotations between their respective personnel systems to close skills gaps, enhance mission knowledge and meet work surge demands. In 2015, I was offered the Deputy, CHCO position at the U.S. Department of the Interior and by 2017, I became the Deputy Assistant Secretary for Human Capital and Diversity and CHCO. Interior has an amazing workforce and operates in over 2,400 locations and almost every occupation covered under the federal inventory of positions (approximately 350) are also found within Interior.

In all these roles, I maintained a constant and valuable connection to the CHCO Council and have had the privilege to work on many issues facing the federal workforce over these years. Over these many years, I participated in a wide variety of partnership functions with the Board, whether attending training or conference panels with its representatives, participating in its surveys, or providing feedback on future studies and evaluations. I bring a wide variety of strategic, tactical, legal, and policy-setting experiences and executive leadership perspectives that will support me well as the Board’s Vice Chair and have developed a deep appreciation for its mission and the professionals that serve there.

DG: You are walking into an an unprecedented situation with more than 3,600 Petitions for Review waiting for you. Do you have a process to address those PFRs? What kind of cases are you prioritizing? Are you considering short-form opinions?

RL: The good news is that of those approximately 3,600 cases, career staff have drafted recommended decisions for about 3,400 of them. This includes updating recommended decisions, when appropriate, in cases in which statutes, regulations, and court precedent may have changed during the lack of quorum.

That said, there are various ways we as a Board could choose to approach the backlog. For example, we could implement a “first-in, first-out” approach, or we could prioritize certain categories of cases, such as precedential decisions, cases involving back pay, whistleblower appeals, or more straightforward cases such as settlements and withdrawals. We’re very cognizant that there’s no right answer here given what we’re facing with the backlog and the fact that the parties have been waiting a long time for a decision from the Board on their PFRs. However, during the lack of quorum, our legal offices collaborated to try and determine which cases were priorities from all perspectives, and so we’re initially taking a hybrid approach to incorporate various types of cases, and we’re prepared to adjust our approach as we move forward.

Similar to the most recent Board quorum, we are planning to issue both precedential and nonprecedential decisions, but the latter will be more tailored to a length that’s appropriate for the issues presented in each PFR, meaning that some nonprecedential decisions will be a few paragraphs while others could be several pages. Additionally, during the lack of quorum period, MSPB staff deployed enhancements to our current case processing systems to provide more flexible and efficient options for the Board as it tackles the backlog.

DG: Have you had an opportunity to address MSPB employees? What is your message to them?

RL: Yes, Member Tristan Leavitt and I had the opportunity to virtually address the entire agency during our swearing in. We both conveyed appreciation to the workforce and acknowledged the challenges and opportunities facing the Board today. I came to this position with high regard and respect for what the Board is tasked with and how it serves our nation by protecting our federal workforce. After my first week of briefings and personally meeting so many of the Board’s professionals, that respect has deepened immensely.

DG: Everyone focuses on the PFR backlog. What other functions are particularly challenging now due to the fact the Board lacked a quorum for so long?

RL: During the lack of a quorum, MSPB could not issue our traditional, fulsome studies with policy recommendations for the President and Congress. [Editor’s note: We discussed those reports with Jim Read, then-director of the agency’s Policy and Evaluation Office back in 2019.] We are looking to move out on that. Similarly, the quorum must also approve a new research agenda that has been prepared.

Notwithstanding the lack of a quorum, administrative judges and support staff continued the mission of the agency and acted with distinction during the pandemic to adjudicate thousands of cases. Similarly, the Offices of the Clerk, Appeals Counsel, and General Counsel made significant contributions to address the increasing backlog and expertly prepared the incoming Board members to take on this challenge. Over the months to come, we are looking to leverage technology to improve the user experience and improve our case management functions and continue to receive input from our stakeholders.

Our legal offices have also been working on updates to our regulations to account for changes in statute and case law, as well as our shift toward more electronic case processing. Updates to the regulations could not be issued while the Board lacked a quorum, but they will be among the new Board’s priorities. The appropriate notices will be posted to the Federal Register in the coming months.

[Editor’s note: With a new quorum now in place, it’s an important time to sharpen your MSPB skills and knowledge. Join us for MSPB Law Week Virtual Training March 28- April 1 or the Getting Back on Board: An MSPB Case Law Update webinar on April 20.]

Gephart@FELTG.com

 

MSPB Quorum Returns After 1,880 Days

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By Deborah J. Hopkins, March 2, 2022

Late yesterday, while the world was focused on the Ukraine crisis and the country discussed the State of the Union address, the Senate confirmed two individuals to the U.S. Merit Systems Protection Board (the Board) by voice vote: Raymond L. Limon, and Tristan L. Leavitt.

While there was not a vote on the third and final nominee, Cathy Harris, two out of three members still makes a quorum, which means we’ll soon see decisions on the 3,600+ Petitions for Review awaiting action. The Board will have its work cut out for it, as decisions will need to be issued on topics including:

  • Whistleblower reprisal allegations
  • New performance requirements in the wake of Santos v. NASA
  • Challenges to Administrative Judge authority
  • Interpretation of the VA Accountability And Whistleblower Protection Act
  • Pendulum shifts in Executive Orders and OPM regulations

We’ve long said that justice delayed is justice denied, and this Senate action, while long overdue, is an important step in the right direction for all the people impacted by the 5+ year lack of quorum at the MSPB. Stay tuned to FELTG for all the latest information, and join us at the end of the month for MSPB Law Week, where we’ll unpack all the latest information from the new Board. Hopkins@FELTG.com

And Now a Word With … Mxolisi Siwatu About EEOC’s Report on Older Workers

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By Dan Gephart, February 22, 2022

What do you want first — the good news or the bad news? The Equal Employment Opportunity Commission’s recent report on older Federal workers offered a little bit of both. Let’s start with the good news. General job satisfaction, perceptions of workplace inclusion and fairness, as well as having your agency EEO Director report directly to the agency head, all lead to a decreased likelihood of having an age discrimination complaint, according to the report conducted by the EEOC’s Office of Federal Operations. Basically, the data is providing a clear path to limiting discrimination complaints at your agency. And following this path will improve your FEVS scores and make your workplace more desirable to current and future employees. Kind of a win-win-win-win.

And there’s more good news. Employees 40 years or older make up 72 percent of the Federal workforce. That’s a whopping 18 percent higher representation than 40-and-up employees in the overall civilian labor force (CLF). Also, the Federal cohort is more diverse than its private sector counterpart.

Now the bad news. The report found a a significant pay disparity between older men and older women in the Federal workforce. The EEOC also found a persistent pay gap between white and Asian Federal employees as compared to other groups of older Federal employees.

Mxolisi Siwatu, PhD, an EEOC Office of Federal Operations (OFO) social scientist research analyst, took time to answer our questions about the report.

DG: Why do you think the 40 and older cohort is better represented in the Federal workplace than the private sector? What do Federal employers do right?

MS: We argued that it is possible that the difference between the private sector and the public sector in EEO performance may be due to greater oversight. The Office of Federal Operations gained increased oversight responsibilities with the introduction of Management Directives 110 (2003), which provides guidance to federal agencies for how to process EEO complaints; and Management Directive 715 (2003), which provides guidance to agencies for how to maintain an EEO program. Also, OFO provides ongoing technical assistance to Federal agencies in support of these directives, which may also contribute. However, it must be noted that this is speculation on the part of the authors and no causal analyses were conducted in the current research.

DG: Men account for 57 percent of the Federal workforce 40 or older, while it is only 45 percent in the private sector. Is there an explanation for that wide gap, and what do you suggest that agencies do differently to narrow that gap?

MS: We did not speculate on why this gap was found. However, OFO conducts technical assistance visits regularly with each Federal agency. During these visits, their participation data are assessed in relation to the CLF. Recommendations are provided to Federal agencies to address any discrepancies observed and progress is monitored thereafter. So, if we note gender disparities, it is addressed with the specific agency.

DG: The report identifies the perception of fairness as a predictor of age discrimination complaints and shares six strategies to achieving that fairness based on research by Jennifer Lee and Ann Smith. What actions can EEO specialists and supervisors take to immediately improve the perception of fairness?

MS: Lee and Smith’s article was written primarily for private sector companies. Many of the strategies identified by Lee and Smith are already practiced in the Federal sector due to guidance derived from MD-110 and MD-715. To drill down to the office or supervisory level, agencies may engage in demonstrated commitment to EEO in a way that is visible and meaningful to their workforces as a way of improving perceptions of fairness.

[Editor’s note: The six strategies identified in the Lee and Smith research are: authorizing workers’ complaints by allowing third parties to advocate on the part of disadvantaged populations and employees; creating enhanced penalties for engaging in discrimination; mandating that employers disclose information to workers about their rights; having strong anti-retaliation laws; expanding liability by placing the burden of proof on the employer; making reporting of employer discrimination data to the public and governing bodies mandatory.]

OFO recommends activities that promote EEO awareness, anti-harassment education for staff and managers, timely complaint processing and resolutions, and having a reporting structure in which the EEO program director reports directly to the agency head. In addition, ongoing monitoring of diversity and inclusion at the agency with respect to hires, promotions, and separations is required. Ongoing commitment and proactive prevention efforts may help promote a climate of EEO among the workforce that encourages lawful treatment, but also confidence in reporting unlawful treatment when appropriate.

[Editor’s note: FELTG offers several upcoming virtual training events that can help improve your DEIA efforts including:

DG: One of the main findings of the report is the importance of having EEO high up in the reporting structure, most effectively having the EEO Director report directly to the agency head. For those agencies where that’s not the current situation nor likely to be, what advice can you provide for EEO professionals and supervisors?

MS: OFO has been working to encourage all agencies to reorganize their EEO office so that the EEO Director reports directly to the agency head, as required by MD-110. As of FY2019, currently 61 percent of agencies have an EEO Director that reports directly to the agency head. OFO continues the goal of achieving 100 percent compliance among all agencies with this requirement as it remains one of the key priorities during technical assistance visits and audits.

Siwatu did not specifically say whether agencies are making progress on the hiring of a Chief Diversity Officer, as suggested in Executive Order 14035. However, he did say that the EEOC has been an “active participant in the implementation” of the EO and the goal is to have the CDO and EEO Director positions “complement one another to meet the Administration’s broad equity goals.” Gephart@FELTG.com

3 Things to Know About the Federal Vaccine Requirement’s Injunction

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By Deborah Hopkins, February 7, 2022

On January 21, a Federal district judge in Texas issued an injunction on the vaccine requirement for Federal employees, established last September by Executive Order 14043. The Biden Administration has appealed the injunction and has requested a stay while the appeal makes its way through the system. While we await the outcome, there are a few nuances of which your agency should be aware.

1. Your agency should still collect information about employee and future employee vaccination status.

Though the vaccine requirement is on hold, the information on vaccination status is important to agencies as they determine safety protocols for the physical workplace. Agencies are not prohibited from using information on vaccination status to set guidelines for masking, distancing, testing, travel, and quarantine requirements.

2. Your agency does not need to rescind discipline that has already been issued and completed for failure to comply with the vaccine requirement.

While most agencies have not yet implemented discipline for employees who were not vaccinated by the November deadline, some have. The Safer Federal Workforce Taskforce guidance is clear: During the pendency of the appeal on the injunction, the discipline should remain as issued. That said, the discipline should not be relied upon as an aggravating factor in any new disciplinary actions.

3. If your agency predicated an offer of employment on a vaccine requirement, it should amend the offer and remove the vaccine requirement.

However, because this injunction is not the final disposition on the issues, the Task Force suggests the following language be included in the amended offer:

“To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Federal agencies may request information regarding the vaccination status of selected applicants for the purposes of implementing other workplace safety protocols, such as protocols related to masking, physical distancing, testing, travel, and quarantine.”

There’s much more to discuss on this topic, including information on exemption requests, what agencies should do if they are exempt from the injunction, and whether agencies are permitted to establish independent vaccine requirements for their workforce. Join FELTG next Thursday, February 17, at 1 pm ET for the 60-minute virtual event Vaccine Mandate on Hold: What Now for Accommodation, Discipline, and Hiring? Hopkins@FELTG.com

Federal Court Puts Vaccine Mandate on Pause: What’s Next?

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By Dan Gephart, January 24, 2022

The FELTG mailbag has been overfilled of late with questions from readers preparing to take adverse actions against employees who failed to comply with President Biden’s vaccine mandate. Today we can answer all those questions with just five words:

Put those actions on hold.

Last week, a Federal judge in Texas issued a nationwide injunction against the requirement that Federal employees be vaccinated against COVID-19, thus enjoining the defendants from “implementing or enforcing Executive Order 14043 until this case is resolved on the merits.”

Judge Jeffrey Brown of the Southern District of Texas wrote:

“The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19 — the court believes they should. It is not even about the federal government’s power, exercised properly, to mandate vaccination of its employees. It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.”

The Supreme Court struck down Biden’s similar mandate for private sector companies with more than 100 employees. The U.S. Postal Service was part of that mandate. It’s highly likely that this case – Feds for Medical Freedom v. Joseph R. Biden – will make its way to the Supreme Court, as well. Indeed, the Biden Administration has already appealed the ruling to the Fifth Circuit.

The decision came as agencies were preparing to move forward with adverse actions against Feds who, after counseling and education, still refused or failed to get vaccinated and did not request a legal exemption. The judge referred to this looming discipline in his decision as the “imminent harm” that required the injunction.

Despite this setback for the President, the vaccine mandate has already been considered a success by many. In a press briefing soon after news of the decision broke, White House Press Secretary Jen Psaki said that 98 percent of Federal workers are already vaccinated.

However, the decision leaves many of you hanging as you continue to deal with employees who outright refuse vaccination, as well as those who have requested exemptions to the mandate.

If you were in the middle of the reasonable accommodation process on mandate exceptions, you should, obviously, as we mentioned earlier, pause the process. However, make sure that you document that pause. If a higher court reinstates the mandate, it could lead to challenges on processing time, and you’ll need that documented legitimate reason for the delay.

You will also need to re-think your plans for returning employees en masse to the physical workplace to account for the return of unvaccinated employees while ensuring the safety of employees and customers.

While the Office of Personnel Management will not take action to implement or enforce the vaccine requirement, it announced that the Safer Federal Workforce Task Force guidance on protocols related to masking, distancing, travel, testing, and quarantine remains in effect. In addition, the Task Force released a four page Q & A with answers including what to do if agencies have already disciplined employees who failed to meet the vaccine mandate.

Keep an eye on FELTG’s website for updated guidance and news and join us on February 8 from 1 – 4:30 pm ET for Managing COVID-related EEO Challenges in the Federal Workplace. Gephart@FELTG.com

Takeaways from OPM’s Proposed Regs on Accountability and Discrimination

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By Deborah Hopkins, January 18, 2022

Well, FELTG Nation, the changes keep coming. Two weeks ago, OPM issued proposed new rules on 5 CFR Parts 315, 432 and 752, as a result of President Biden’s Executive Order 14003, and also proposed regulations for 5 CFR part 724, the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020.

These are proposed rules and cannot be finalized until OPM considers public comments. You can comment until the first week of February. While you ponder whether you’d like to submit comments for OPM’s consideration, we’ve pulled a few notable pieces from each proposed rule, and have some thoughts of our own.

5 CFR Parts 315, 432 and 752

Performance

If you read the proposed rule, you’ll notice that OPM has a disagreement with the Federal Circuit about the Santos v. NASA case from March 2021. The Federal Circuit ruled that agencies must justify unacceptable performance before placing an employee on a PIP. OPM disagrees that the statute issues this requirement and relies on its own interpretation:

[A]n agency may not take a performance-based adverse action against an employee whom the agency determined was performing unacceptably unless the agency first provides the employee with notice and an opportunity to improve, and the employee continues to perform unacceptably. The determination to be reviewed on appeal to the Board and its reviewing courts is the final determination of unacceptable performance following the PIP, not any interim determination leading to the PIP.

It will be interesting to see what the Federal Circuit thinks about this.

Another interesting item on performance indicates OPM thinks an agency may need (or at least want) to prove they engaged in performance counseling with an employee prior to the initiation of a PIP:

Agencies should also remain mindful that third parties (for example, arbitrators and judges) place a strong emphasis on a supervisor’s effort to assist the employee in improving his or her performance. Evidence that the supervisor engaged an employee in discussion, counseling, training, or the like prior to the opportunity period may assist the agency in developing a stronger case before a third party that the employee was given a reasonable opportunity to demonstrate acceptable performance before a performance-based action is taken. [bold mine]

This has never been a legal requirement. What’s unclear to us at FELTG is if OPM is setting this as a requirement, suggesting it is a good idea, or perhaps supposing this will somehow meet the Santos requirement in a different way.

Misconduct

President Trump’s 2018 Executive Order 13839 included guidance on penalty determination for agencies, and OPM’s regs which became effective in November 2020, adopted much of that language. In the newly proposed regulations, language about penalty determination and comparator employees will be removed completely. These principles are still in MSPB caselaw but will not be in the updated regulations. OPM seems to want to leave these decisions up to individual agencies.

General Observations

  • The term “business day” will no longer exist in OPM regulations, as that was derived directly from Executive Order 13839. As a result, the timeline for decisions on proposed disciplinary actions is not a hard deadline. It is being left up to agencies. OPM still encourages agencies to act promptly.
  • Clean record settlements are back. The regulation prohibiting agencies from removing discipline from an employee’s OPF is being removed. OPM’s justification for this is, among other things, “the prohibition of clean record agreements hampers agencies’ ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency.”
  • Agencies will no longer be required to provide mandatory notification to supervisors at 30 months and one month before the end of an employee’s probationary period. OPM pointed out that agencies are still encouraged “to notify supervisors that an employee’s probationary period is ending, [but] OPM believes the frequency and timing of notifications should be left up to the discretion of each agency.”
  • The regs are FINALLY being updated to include the dual status technicians in the National Guard who gained coverage under the 2018 NDAA.
  • Agencies no longer need to notify OPM if they extend an employee’s notice period beyond 30 days.

5 CFR part 724

The Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020 went into effect Jan. 1, 2021. The new law modifies the No FEAR Act and places requirements on agencies related to findings of discrimination.

According to OPM, the proposed regulations will require an agency to:

  • Provide notice, in an accessible format, of a finding of intentionally committed discriminatory (including retaliatory) acts on the public internet website (linked directly from the home page) of the agency after all appeals have been exhausted.
  • Submit the annual report in an accessible, electronic format prescribed by the Director of OPM.
  • Submit a disciplinary action report, in an accessible, electronic format, to the Equal Employment Opportunity Commission (EEOC).
  • Establish, or leverage, a system to track each complaint of discrimination; and
  • Provide a notation of any adverse action taken under section 7512 of title 5, United States Code, for a covered act of discrimination (including retaliation) in the personnel record of an agency employee found to have intentionally committed discriminatory (including retaliatory) acts, after all appeals are exhausted.
  • Update No FEAR Act training to comply with the new provisions of the Statute.
  • Train new employees within 90 calendar days of appointment, including employees who transfer from one Federal agency to another.
  • Train all existing employees on a training cycle of no longer than every two years.

We can help you with those training requirements. You know where to find us! Hopkins@FELTG.com

And Now a Word With … EEOC Chair Charlotte A. Burrows

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By Dan Gephart, January 3, 2022

Last year, the EEOC dealt with an unrelenting number of harassment claims, addressed the civil rights crisis exacerbated by the pandemic, took on a role implementing Executive Order 14035, and provided regularly updated guidance on navigating EEO challenges related to COVID-19, including the deluge of religious and disability-based requests for reasonable accommodation of exemptions to the vaccine mandate.

As 2021 drew to a close, we caught up with EEOC Chair Charlotte A. Burrows (pictured at right) to discuss the challenges of last year and look ahead to 2022.

DG: As we head into a new year, what will be your priorities for Federal Sector EEO?

CB: The Federal government is America’s largest employer. My top priority for our Federal Sector work is to help Federal agencies become models for the work environment that should exist throughout the United States – one that is fair, equitable, inclusive, and promotes equal employment opportunity for all.

The Commission’s Federal Sector priorities will focus on preventing and remedying harassment on all grounds and all bases, addressing retaliation in Federal workplaces, and expanding opportunities for employees with disabilities. EEOC also has a key role to play in implementing Executive Order 14035 – Diversity, Equity, Inclusion and Accessibility (DEIA) in the Federal Workforce. We are partnering with the White House, the Office of Management and Budget, the Office of Personnel Management, and other interagency partners to advance this important and ambitious whole-of-government equity agenda that will take a systematic approach to embedding DEIA in Federal hiring and employment practices.

DG: Can we expect any changes to the Federal EEO process in coming years? 

CB: Yes, the Elijah E. Cummings Federal Antidiscrimination Act of 2020 makes some key changes to the EEO process. Most importantly, it will ensure more transparency around findings of discrimination.

Specifically, the law requires each agency to:

1. Publish a notice of any final agency action or Equal Employment Opportunity Commission (EEOC) appellate decision involving a finding of discrimination or retaliation on the agency’s website for at least one year.

2. In those cases involving findings of discrimination, inform the EEOC whether disciplinary action has been proposed and why.

3. And publish data regarding each class action complaint that alleges discrimination, including retaliation.

Also, the Act requires that by (this month), all agencies establish a system to track complaints of discrimination and note adverse actions taken due to findings of discrimination or retaliation in employee personnel records.

In addition, the law provides the EEOC with enhanced tools to promote a discrimination-free workplace by allowing the EEOC to refer instances where federal agencies did not take appropriate disciplinary action in response to a finding of discrimination to the Office of Special Counsel. The Office of Special Counsel will review these referrals for purposes of seeking disciplinary action.

DG: Last spring, you spoke at a hearing about the civil rights crisis exacerbated by the pandemic.

CB: It’s been clear for some time now that the pandemic is not only a public health and economic crisis, but truly a civil rights crisis. While every single one of us has experienced challenges during this pandemic, it’s important to recognize that the pandemic hasn’t impacted everyone in the same way. The pandemic’s health and economic fallout has disproportionately impacted people of color, women, older workers, immigrant and migrant workers, people with disabilities, and other vulnerable workers. And that impact has serious implications in the workplace.

The transcript of the public hearing and the witness testimony is available on the EEOC’s website and provides an excellent resource for agency leadership, human resource professionals, and EEO managers who are grappling with these issues.

DG: What should those in the Federal EEO arena be doing to address this crisis?

CB: Agency managers should review their policies to determine whether they are having an adverse impact on particular categories of workers and be mindful of overlapping and intersectional effects.

This is particularly important as Federal agencies plan their reentry to the physical workplace after expanded telework and remote work during the pandemic. EEOC has a wealth of resources to assist agencies and Federal workers with understanding the application of the EEO laws in the unique and difficult context of this pandemic. Agencies can find the latest information on this topic and answers to dozens of frequently asked questions in our COVID-19 technical assistance document, What You Should Know About COVID-19.

DG: Should agency practitioners approach requests for vaccination exemptions as they would any other accommodation request?

CB: Absolutely. Although the context of a global pandemic is certainly novel, the legal principles that apply have not changed. Title VII and the Rehabilitation Act require agencies to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the agency. The undue hardship analysis depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion.

Agency practitioners should review our What You Should Know About COVID-19 publication for practical guidance on how to handle requests for disability and religious accommodations to vaccine requirements. See (Section K – Vaccinations – Overview, ADA, Title VII, and GINA) (Section L – Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates).

Each agency will need to ensure that it has procedures in place to accept, evaluate, and process requests for religious and disability accommodations. EEOC will continue to assist agencies in navigating emerging issues. EEOC has also made available our agency’s own internal religious accommodation request form as a resource for public and private sector employers.

DG: Speaking of reasonable accommodation, will the EEOC be releasing any guidance on “long COVID?”

CB: The EEOC recognizes that “long COVID” may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances. The EEOC agrees with the analysis of “long COVID” by the Departments of Health and Human Services and Justice in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” EEOC technical assistance about COVID-19 and ADA “disability” in the employment context will be released in the near future.

[Editor’s note: Shortly after our discussion with Chair Burrows, the EEOC released updated guidance on when COVID may rise to the level of a disability in Section K of the What You Should Know About COVID-19 guidance.]

DG: It’s been a few years since the #MeToo movement caught national attention. It was expected that there would be an increase in harassment and hostile work environment complaints. Were there? And has that trend continued in the last year or two?

CB: The year after the #MeToo movement went viral, the EEOC saw a significant rise in the number of sex-based harassment charges, including sexual harassment charges, filed with the Commission. While the number of charges alleging sex-based or sexual harassment has declined since the post-#MeToo high of 13,055 charges in fiscal year 2018, the percentage of EEOC’s charge inventory that includes a claim of sex-based and/or sexual harassment has remained elevated — comprising over 17% of charges filed with the EEOC in every year since 2018. The high-profile dismissals of CEOs and senior managers after the #MeToo movement that gained international attention may have prompted more survivors of harassment to believe that filing a charge could make a difference.

Over the past few years, approximately one third of all charges filed with the Commission against private sector and state and local government employers annually alleged harassment on at least one unlawful basis, i.e., race, national origin, religion, color, disability, age, or genetic information, in addition to sex (including pregnancy, sexual orientation, and gender identity). Moreover, the percentage of complaints filed by Federal employees alleging harassment on any basis has consistently been higher than the percentage of charges filed against private and state and local government employers.

Anecdotal evidence and news reports suggest that harassment is pervasive in all types of work settings. The Report of the Co-Chairs of EEOC’s Select Task Force on the Study of Harassment in the Workplace found that up to 85% of women report having experienced sexual harassment in the workplace. It is important to remember that a lot of workplace harassment goes unreported for a number of reasons, including because they fear disbelief or inaction of/on their claim, blame, or social or professional retaliation. Therefore, the number of EEOC charges is likely to be only the “tip of the iceberg,” because many people fear retaliation or are unsure of their rights in the workplace.

It’s clear that workplace harassment remains a significant problem in all sectors. This is not a problem that can be remedied quickly, and we must all work together to reduce harassment and create safe, respectful workplaces.

DG: Federal supervisors have told us that when trying to hold employees accountable for poor performance or misconduct, the employee will cite a hostile work environment. What advice would you give supervisors or their advisors in this situation?

CB: As an initial matter, it is not harassing conduct for a supervisor to tell an employee he or she is not performing adequately. That said, managers should continually assess how they interact with employees and ensure that accountability for poor performance or misconduct is being handled fairly. Supervisors should also document instances of poor performance or misconduct and notify employees when there is a performance or conduct issue. It’s important to remember, however, employees who have similar work performance may not be treated differently because of a protected characteristic. We have seen many studies showing that certain populations receive more severe punishment for similar conduct. Agencies should examine whether, in addressing poor performance or misconduct, a manager issues harsher punishment for performance or conduct issues to a particular group. If so, there could be bias or discrimination. This is an area we expect Federal supervisors to pay close attention to and to modify practices where inequity appears. If there is no indication of harsher treatment, then managers should provide timely and specific feedback when an employee is not meeting performance expectations and be consistent with the objective practices for discipline for the conduct or performance.

DG: Where do agencies need to improve most in the EEO process?

CB: Managers should be focused on preventing retaliation and harassment and Federal agencies should ensure that EEO programs have the independence, resources and leadership support needed to effectively manage their programs. In addition, agencies need to improve on the timeliness of their final agency decisions. Agencies also need to focus on improving accessibility to technology for members of its workforce.

I wrapped up the interview by asking Chair Burrows: If there was one message you could make sure every Federal manager would heed, what would it be?

“Equal employment opportunity strengthens your organization by unlocking the full talents of the workforce, improving employee morale, and reducing financial burdens on the federal government,” Burrows said. “You have a tremendous opportunity to make a difference in creating a model workplace – seize that opportunity and think of the EEOC as a partner in trying to help you achieve that goal.” Gephart@FELTG.com

[Editor’s note: Join FELTG Instructor Katherine Atkinson for the 75-minute webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace on January 19 and Managing COVID-related EEO Challenges in the Federal Workplace, a half-day virtual training, on February 8.]