OPM Reentry Guidance Signals Further Acceptance, Expectation of Telework

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By Dan Gephart, July 26, 2021

The telework paradigm shifted greatly during the pandemic and nowhere is that clearer than in the 38-page guidance the Office of Personnel Management released late last week.

While titled “Additional Guidance on Post-Reentry Personnel Policies and Work Environment,” the memorandum written by OPM Director Kiran A. Ahuja, and the majority of “Frequently Asked Questions” section focus on telework and remote work.

Ahuja wrote: “[A]gencies can, where appropriate, deploy personnel policies such as telework and remote work effectively and efficiently as strategic management tools for attracting, retaining, and engaging talent to advance agency missions, including in the context of changes in workplaces nationwide as a result of the pandemic and in response to long-term workforce trends.”

The guidance suggests that agencies “take this opportunity to adjust their telework policies to reflect a new understanding about how telework has worked at their agencies.” OPM provides the following roadmap of considerations when crafting your post re-entry telework policies:

1 – Make telework determinations based on the functions of the job, and not mere managerial preference.

2 – Treat employees with similar work functions across work units similarly when determining telework eligibility.

3 – To the extent possible, try to align telework programs with employee needs and the business goals of each work unit to avoid a one-size fits all approach to telework participation.

4 – When possible, have consistent telework policies across locations.

5 – When possible, consider restructuring jobs so that all employees, theoretically, could be eligible for at least situational or occasional telework.

6 – Make all employees aware of the agency’s telework policy and criteria for telework participation.

7 – Require all teleworkers and supervisors of teleworkers complete appropriate training before entering into a telework agreement.

8 – Provide adequate telework training to supervisors on how to assess and manage the performance of teleworkers.

9 – If appropriate, allow some or all teleworkers to meet emergency operations or COOP duties through telework rather than reporting to the normal or designated COOP site. Encourage mission essential and non-mission essential employees to practice telework to help the agency prepare to meet emergency situations.

The OPM guidance also reminds agencies to complete applicable collective bargaining obligations before directing employees to return to the physical workspace. OPM wrote:

“While an agency has the right under 5 U.S.C. 7106(a) to determine the location where particular employees will work, there may be an obligation to collectively bargain on implementation of any decision to return employees from maximum telework status prior to implementation of this decision.”

This guidance will be discussed this Friday during The 2021 Telework Challenge, the fifth and final day of FELTG’s Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. You can still register for any of the remaining days, including Friday’s session. This latest OPM guidance will be wrapped into other upcoming training including EEO Challenges, COVID-19, and a Return to Workplace Normalcy, a 3½-hour training that kicks off FELTG’s Federal Workplace 2021: Accountability, Challenges and Trends. Gephart@FELTG.com

Do You Know the Difference Between Willful and Intentional Misconduct? If Not, You’d Better Read This

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By Deborah Hopkins, July 12, 2021

A few weeks ago, my colleague and FELTG Founding Father Bill Wiley drew my attention to a Federal Circuit decision that gave the Federal employment law world an important distinction in legal definitions. The case involved an IRS agent who disclosed confidential taxpayer information, including personally identifiable information (PII), to an unauthorized person for her own benefit. The unauthorized person was her attorney, and the information was disclosed as the attorney was preparing a response to a proposed suspension for “displaying discourteous and unprofessional conduct and for failing to follow managerial directives.”

The IRS removed the employee for “intentionally disclosing taxpayer information to an unauthorized person” and the MSPB AJ upheld her removal, agreeing with the agency that the misconduct was severe because “taxpayer privacy is ‘sacrosanct.’” In addition, the employee had received training on the importance of keeping taxpayer PII private, did not redact any PII before sending the information to her attorney, and did not receive permission from the agency to disclose the information.

She appealed her removal to the Federal Circuit. While acknowledging the disclosure of taxpayer PII was improper, she argued on appeal that removal was too harsh because “[t]he penalty imposed was that for willful disclosure, rather than negligent disclosure.”

Keep in mind, the charge was “intentionally disclosing taxpayer information to an unauthorized person.”

The Federal Circuit did not agree with her argument, but rather agreed with the MSPB that her “removal was properly predicated on her intention to disclose the information to her attorney and did not depend on whether she knew that the disclosure was wrong.” Therefore, it was not improper for the IRS “to consider such intentionality as aggravating.”

Now the fun part – the discussion on the use of the words willful and intentional. The court said that in the petition for review, the employee improperly referred to being charged with “willful disclosure” when her actions were actually charged as intentional. The court said these two words are sometimes used interchangeably but shouldn’t be. And then they told us why:

  • An intentional action is one that an employee commits on purpose, not negligently. It is not a requirement that the employee know the action is illegal, if the agency can show the employee’s intent was to commit the action at issue.
  • A willful action is different; it is an action an employee commits on purpose with knowledge that the act is prohibited. If there is no evidence the employee knew the action was prohibited, the misconduct is not willful, but may be intentional.

The IRS employee acted intentionally when she provided taxpayer information to her attorney. The agency did not charge her with willful disclosure and, therefore, was not required to prove that she specifically knew the act was prohibited by law. The employment law nerd in me just loves this kind of stuff. If you’d like to read the case yourself, it’s Vestal v. Treasury, Fed. Cir. No. 2020-1771 (Jun. 14, 2021). And for more fun discussions on disciplinary charges, join FELTG for the virtual training program Understanding Misconduct: Disciplinary Charges and Penalties, held on July 26 as part of our weeklong program The Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. Hopkins@FELTG.com

How is Your Agency Doing on the Federal Workplace Executive Order Task Deadlines?

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By Deborah Hopkins, June 22, 2021

It’s now been five months since President Biden issued Executive Orders 13985 and 13988 – what we at FELTG are now referring to as the Diversity, Equity, Inclusion and Accessibility (DEIA) Executive Orders. If you paid close attention to the requirements in the EO, you’ve probably realized that there are some agency deadlines that have passed, or will be approaching very soon. Below is a review of some of the most important takeaways and tasks from these DEIA EOs.

Executive Order 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

As the title of this EO suggests, the focus of this EO is on preventing and combating discrimination on the basis of gender identity or sexual orientation, including overlapping forms of discrimination. The following tasks and deadlines were assigned on the day the President took office:

Sec. 2. Enforcing Prohibitions on Sex Discrimination on the Basis of Gender Identity or Sexual Orientation. 

Task (a): Review all existing orders, regulations, guidance documents, policies, programs, or other agency actions that:

(i) were promulgated or are administered by the agency under Title VII or any other statute or regulation that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations; and

(ii) are or may be inconsistent with the policy set forth in section 1 of this order.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (b): Consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in section 1 of this order.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (c): Consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy set forth in section 1 of this order. If an agency takes an action described in this subsection or subsection (b) of this section, it shall seek to ensure that it is accounting for, and taking appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (d): Develop, as appropriate, a plan to carry out actions that the agency has identified pursuant to subsections (b) and (c) of this section, as appropriate and consistent with applicable law.

Deadline: In consultation with the Attorney General, 100 days: May 1, 2021.

Examples of impacted areas:

  • Health care providers
  • Restroom/locker room use in Federal buildings and on Federal land
  • Public postings
  • Harassment
  • Education
  • Immigration
  • Law enforcement
  • Employment

Hurry – register for the June 23 class Honoring Diversity: Ensuring Equity and Inclusion for LGBTQ Individuals.

Executive Order 13985: Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

This EO focuses on what agencies can do to include all segments of the population in having access to the services that the Federal government provides, with an emphasis on communities that have traditionally had challenges in receiving equal access. Below are the tasks and deadlines, also issued January 20:

Sec. 4. Identifying Methods to Assess Equity. 

Task: Agency heads shall study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals.

The study should aim to identify the best methods, consistent with applicable law, to assist agencies in assessing equity with respect to race, ethnicity, religion, income, geography, gender identity, sexual orientation, and disability.

Examples:

  • Vaccine distribution
  • Housing
  • Healthcare
  • Food security

Deadline: Within 6 months of the date of this order (July 21, 2021), the Director of OMB shall deliver a report to the President describing the best practices identified by the study and, as appropriate, recommending approaches to expand use of those methods across the Federal Government.

Sec. 5. Conducting an Equity Assessment in Federal Agencies.  

Task: Select certain agency programs and policies for a review that will assess whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs:

(a) Potential barriers that underserved communities and individuals may face to enrollment in and access to benefits and services in Federal programs;

(b) Potential barriers that underserved communities and individuals may face in taking advantage of agency procurement and contracting opportunities;

(c) Whether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs; and

(d) The operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.

Deadline: Within 200 days of the date of this order (August 9, 2021) provide a report to the Assistant to the President for Domestic Policy (APDP) reflecting findings on a-d, above.

Sec. 6. Allocating Federal Resources to Advance Fairness and Opportunity.

Task: Allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities.

Deadline: None identified, though a mention of the President’s budget submission to Congress indicates sooner rather than later.

Sec. 7. Promoting Equitable Delivery of Government Benefits and Equitable Opportunities.

Task: Consult with the APDP and the Director of OMB to produce a plan for addressing:

(i) any barriers to full and equal participation in programs identified pursuant to section 5(a) of this order; and

(ii) any barriers to full and equal participation in agency procurement and contracting opportunities identified pursuant to section 5(b) of this order.

Deadline: 1 year; January 20, 2022.

Sec. 8. Engagement with Members of Underserved Communities.  

Task: In carrying out this order, agencies shall consult with members of communities that have been historically underrepresented in the Federal Government and underserved by, or subject to discrimination in, Federal policies and programs. The head of each agency shall evaluate opportunities, consistent with applicable law, to increase coordination, communication, and engagement with community-based organizations and civil rights organizations.

Examples:

  • Surveys
  • Phone calls
  • Comment cards
  • Public outreach
  • Focus groups
  • Social media campaigns

Deadline: None identified; commensurate with deadlines above

It is certainly no small feat, and this is the starting point, rather than the end point. But these tasks all reflect the goals of this Administration, to promote DEIA in the Federal government, and in the services the government provides to Americans (and non-Americans) as well. Hopkins@FELTG.com 

How is Kirkpatrick Act Discipline Different from Traditional Discipline?

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By Deborah Hopkins, June 7, 2021

Last week, the MSPB released a research brief Agency Leader Responsibilities Related to Prohibited Personnel Practices. Since the MSPB still doesn’t have a quorum (1,613 days and over 3,400 Petitions For Review – and counting), publishing research briefs is one function the Board is still able to complete.

This brief looks at specifics in the Dr. Chris Kirkpatrick Whistleblower Protection Act (Kirkpatrick Act), 5 U.S.C. § 7515, which was passed unanimously by the Senate in 2017. The Kirkpatrick Act was named after a VA doctor who reported patient abuse and issues with patient medications (opioids) at the VA Medical Center where he was newly employed. Dr. Kirkpatrick made allegations that he was reprised against for being a whistleblower, and died by suicide shortly after he was removed from his position.

In case you’re not familiar, the Kirkpatrick Act sets out specific requirements for discipline against management officials who reprise against whistleblowers and other employees, specifically limited to the 5 U.S.C. § 2302(b) Prohibited Personnel Practices (PPP) 8, 9, and 14:

  • PPP 8 addresses retaliating or threatening to retaliate against a whistleblower.
  • PPP 9 addresses retaliating or threatening to retaliate against a person who exercises his/her/their right to participate in an appeal, complaint, or grievance (including as a witness), and retaliating or threatening to retaliate against an employee who refuses to obey an order that would require an individual to violate a law, rule, or regulation.
  • PPP 14 involves accessing the medical record of an employee or applicant as part of the commission of any other PPP.

If there is a finding of what MSPB in its brief refers to as a “Kirkpatrick PPP,” then specific requirements must be met in proposing discipline. We’ll discuss those below.

But first, according to the report, while “[t]he Kirkpatrick Act does not state what constitutes a determination that a Kirkpatrick PPP was committed or how to determine who committed the PPP in question,” the finding of a Kirkpatrick PPP can only be made by:

  • The head of the agency employing the supervisor;
  • An administrative law judge;
  • The MSPB;
  • The U.S. Office of Special Counsel (OSC);
  • A judge of the United States;
  • The Inspector General (IG) of the agency.

This seems to exclude the findings of a standard misconduct investigation unless, of course, the agency head reads the ROI and decides reprisal has occurred. Once the reprisal finding is made, the Kirkpatrick Act details the following process:

The head of the agency shall:

  1. Propose a suspension of at least three days (for a first offense), or propose removal (for a second offense by the same supervisor).
  2. Provide the employee 14 days to respond to the proposal, and allow the employee to be represented and to review the material relied upon; and
  3. Exercise judgment when considering the employee’s response and deciding to implement the proposed action, with the decision due by the end of the 15th business day (5 CFR § 752.103; this timeline may be amended in the future as a result of Executive Order 14003.)

There’s another interesting caveat to the Kirkpatrick Act. It only applies to actions taken against supervisors, as defined by 5 U.S.C. § 7103(a). If you have a few minutes to look it over, the brief can be found here. It includes a nice side-by-side chart comparing Traditional Discipline with Kirkpatrick Discipline. The brief also details various training on PPPs that agencies must require (including supervisor training on Kirkpatrick discipline), so please let us know if you’d like us to help you out there. After all, it’s what we do. Hopkins@FELTG.com.

Three Takeaways from the 2020 FEVS

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By Deborah Hopkins, May 24, 2021

The 2020 FEVS was released a few days ago. Thanks to COVID-19, it looks somewhat different than past FEVS. But, as always, it is full of interesting and helpful information about how employees view their agencies, their supervisors, their coworkers, and more. Below are three key takeaways.

1. Agencies still have a long way to go on performance accountability.

In the 2020 FEVS, one of the worst scores out of all the topics covered came as a result of this item: In my work unit, steps are taken to deal with a poor performer who cannot or will not improve. (Q. 10). Only 42 percent of employees agreed with this statement, which means 58 percent of employees think that supervisors don’t do enough to hold unacceptable performers accountable. Not great.

While this number is trending better than it has in recent years (it was 36 percent in 2019 and 28 percent in 2018), we can all agree that 42 percent is not the target any agency aims for. That’s a failing grade no matter how you look at it.

FELTG has been working with a few agencies on a targeted approach to increase performance accountability through a structured set of training on topics, including writing effective performance standards, providing feedback that makes a difference, and holding employees accountable. These agencies have seen their individual FEVS scores on this item increase significantly, which tells us that the good employees really appreciate when supervisors focus time and effort on employee performance matters.

2. The grade on diversity hiring and representation is a solid C+.

In response to this item: My supervisor is committed to a workforce representative of all segments of society (Q. 20), 79% of employees agreed.

With President Biden’s numerous Executive Orders highlighting the government’s role in promoting diversity, especially among traditionally underserved populations, we can anticipate that agencies will work on bringing this number up in 2021. In many agencies, leadership is especially focused on nondiscriminatory hiring, reasonable accommodation for employees with disabilities, raising awareness about LGBTQ issues, and training on types of microaggressions and bias that often lead to hostile work environment allegations.

3. COVID-19 definitely impacted agency performance, but not as much as you might think.

One of the new sections in the FEVS dealt with the impacts of COVID-19 on agencies’ ability to meet customer needs and focus on mission results while the world was turned upside down from the pandemic. The graphic below shows that while there have been some struggles, Federal employees have found ways to contribute to agency mission and customer service despite unprecedented working conditions, whether that was transitioning to work 100% from home, spending 12 hour shifts in PPE, working around the clock to develop tests, treatments, or vaccines, and much more.

If you haven’t yet read the FEVS, you can find it on OPM’s website here. It’s worth a look, and when you’re ready to talk to FELTG about how we can help you improve your agency’s scores (because after all, higher scores mean your employees are happier, and if your employees are happier they are more productive), we’ll be here. Hopkins@FELTG.com

 

Two Words for MSPB AJs Mitigating Removals to Demotions: Please Stop

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By William Wiley, May 3, 2021

President Biden recently nominated Cathy Harris as Chair of the Merit Systems Protection Board, and hopefully soon he will nominate two other individuals who will provide us with a full Board. And you can bet that on behalf of The Nation, good old FELTG will have some recommendations for the new leadership to consider.

One of them is a cure for a complaint we’ve long expressed in this newsletter over the years, and which we will re-surface every chance we get. We were reminded of the problem in a court decision earlier this year, Lowe v. Navy, Fed. Cir. No. 2020-1564 (Jan. 11, 2021). That non-precedential decision contained nothing legally spectacular within itself, and resulted in the affirmation of the administrative judge’s decision in Lowe v. Navy, No. DC-0752-19-0053-I-2, 2019 MSPB LEXIS 4415 (Dec. 2, 2019). The problem that we hope the new Board leadership will correct is found in the AJ’s decision.

The Navy fired Mr. Lowe from the position of a GS-13 supervisor based on two charges. Finding one of the charges not proven, the AJ mitigated the removal to a demotion to a non-supervisory GS-12. And that’s what the new Board leadership should stop AJs from doing — mitigating removals to demotions. Here’s why:

We know nothing about the specifics of the work situation in which this appellant was employed. Theoretically, however, it could be a small organization, as would be the case in which any individual is fired from government. There is nothing in the record to show that when ordering the mitigation of the removal to a demotion, the AJ gave any consideration to the needs of the agency, its organization, and the availability of work for the appellant to perform once he is reinstated to a lower grade. It is conceivable that there actually is no GS-12 work available for the restored employee to perform in the organization from which he was removed.

To comply with the AJ’s mitigation order, the agency has to either find a vacant position elsewhere within another organization within the agency or create work that doesn’t actually need to be performed at the GS-12 level in the original organization. Perhaps there is an available GS-12 position within the agency, but at a location hundreds of miles away, thereby requiring that the employee be physically moved, perhaps against his will. Or, perhaps worst of all, assign the restored appellant to do lower-graded work while being paid at the GS-12 level, thereby violating all the rules of position classification and good government common sense.

Sure, the Navy is a big agency potentially with lots of available positions or work to be done that is not yet organized into a position. But what if the employing agency had been a much smaller one with limited work to be done? What if the appellant in this case had been located in a remote Navy facility, thereby necessitating an agency-funded PCS move to another work location to find GS-12 work? A board AJ is in no position to assess these organizational factors when ordering a demotion in lieu of a removal and should not mitigate a removal to a lower-graded position.

So, what should the new Board leadership direct AJs to do in a situation in which the judge decides, for whatever reasons, that some penalty is warranted, but the appealed removal penalty is too severe and demotion might be more reasonable? Ah, fortunately for humanity, we here at FELTG have a few options to recommend that the AJ can do:

1. Set aside the removal and restore the appellant to his old position. The agency has said, “This guy deserves to be fired because of the following reasons.” When it does not prove those reasons, then it loses. It would then be left up to the agency, upon restoration, to decide if a new penalty was warranted. If that new penalty was within the Board’s jurisdiction, the employee could file a new appeal. That would parallel what is done when a criminal prosecutor brings a charge of murder, but does not prove that the killing was premeditated or otherwise fully comports with the legal definition of murder. The jury doesn’t get to step in and rule that the individual should instead be found guilty of some separate charge that was not brought.

2. Set aside the removal and remand to the agency to reconsider the penalty in light of the AJ’s conclusions. The AJ could set a time limit for the agency to act and retain jurisdiction to review any new proposed disciplinary action to see if it is within the bounds of reasonableness. Upon finding that it is (or remanding again until it is), the judge would issue a decision that would be appealable to the Board, as is usual.

3. Set aside the removal and remand to the agency with specific options. The AJ’s initial decision could conclude with language like this, “Having found that removal exceeds the bounds of reasonableness, I hereby direct the agency to place the appellant into a non-supervisory GS-12 position within the same geographic area now employed, if one is available. If such a position is not available, then I find that the maximum penalty for the sustained charge is an X-day suspension.” That way, the agency gets to consider its organizational needs and work availability when deciding which penalty makes the most sense.

Position management decisions should not be made by Board judges. Reinstated employees should not have to be reassigned geographically to comply with an AJ’s reversal of a removal. The new Board members should develop another option for AJs to implement when they determine that the removal of a supervisor is beyond a reasonable penalty, other than demotion. Wiley@FELTG.com

Answering Questions on the New PIP Requirement, Post-Santos

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By Deborah Hopkins, April 27, 2021

A couple weeks ago, Bob Woods and I held a webinar on the new PIP justification requirement issued by the Federal Circuit in Santos v. NASA, No. 2019-2345, (Fed. Cir. Mar. 11, 2021), that undid more than 40 years of case precedent. In case you missed the news flash, the law now requires agencies to have substantial evidence of poor performance before they can place an employee on a PIP – and they must present that evidence as part of their case in chief before the MSPB, should there be a performance-based removal. If you haven’t yet read the article, I wrote about it last month. You’ll want to take a look at that first before you keep reading: Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs.

And if you didn’t attend the webinar, we’re holding a live encore webinar May 11, where we get into all the necessary details, requirements, and takeaways. Because this is the most significant case on performance since the very early days of the Civil Service Reform Act, it’s one you can’t afford to miss.

In the meantime, I thought I’d give you a preview of the kinds of questions that Bob and I received during the webinar. Please keep in mind that the information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.

Q: How long does an agency need to show the employee was performing at an unacceptable level, prior to implementing a PIP?

A: The Santos case doesn’t give any indication about a minimum time period, it requires the agency show substantial evidence of unacceptable performance. Sometimes one mistake on one day could equal unacceptable performance; other times it might take a month or two for an employee to reach a certain number of exceptions to a standard, that causes their performance to become unacceptable.

Agencies shouldn’t feel obligated to come up with an arbitrary number of days to satisfy the requirement (we’ve heard some agencies advising anywhere from 30 to 90 days or more – eek!), but instead should look at the performance standards to be sure the unacceptable performance the supervisor has seen, actually matches the written standard for unacceptable. As soon as that happens, the PIP can be justified.

Q: Can the notification of unacceptable performance be part of the PIP? Our standard PIP normally includes language like “This is to information you that your performance is unacceptable” and gives examples. Is this adequate?

A: Yes, it sounds adequate. While FELTG recommends including the justification document as an attachment, this approach you’ve detailed should also satisfy the Federal Circuit’s requirement post-Santos to document pre-PIP unacceptable performance.

Q: For the “roller coaster” employee who, for example, “passes” the initial 30-day PIP, and receives notification that they passed, if they then later dip in performance and their performance warrants removal, is it necessary for the agency to provide another notice that the performance has dipped before removal? Without an intervening notice, the only notice the employee would receive before the removal is that they passed the PIP.

A: There’s no requirement in the law to provide notice, but we recommend at the conclusion of the PIP, to issue a “Performance Warning Letter” that lets the employee know they will be removed at any time between now and X date (the end of the one-year period, with Day 1 of the PIP starting the year) if their performance becomes unacceptable on the critical element(s) from the PIP.

If the employee falls back into unacceptable performance after successfully completing the PIP within the one-year period, the only notice they receive at that point is the notice of proposed removal, which will articulate their unacceptable performance that the proposed removal is based on.

Q: What are your thoughts regarding employees who, at times, perform “other duties as assigned” and are then placed on a PIP based on unacceptable performance on those ODAA? Is it still OK to place an employee on a PIP based on the observed unacceptable performance or is it better to stick to the critical elements outlined in the performance plan?

A: A PIP may only be used for unacceptable performance related to the critical elements in the employee’s performance plan. If the ODAA relates to a critical element, the agency is free to PIP. But if it’s something unrelated to any critical element, for example a special assignment because the employee is on covid-related telework, it would be inappropriate to place an employee on a PIP. Such a situation could be handled with the Chapter 75 procedures. We have a webinar on this topic May 13, Handling Teleworker Performance and Conduct Challenges, if you need more details.

Good luck with this new requirement. Let us know how it’s going out there. Hopkins@FELTG.com

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

And Now a Word With … Marcus Hill

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By Dan Gephart, March 29, 2021

As the former Senior Executive Advisor for the Federal Law Enforcement Training Centers, Marcus Hill (pictured at right) knows a lot about training. When it comes to determining whether training is going to be effective, he recalls something one of his mentors Dr. Phil Callicutt once told him: “Marcus, you have to believe in the song and the singer.”

“I believe the same is true related to determining if so-called leadership training will be effective, hence ‘the song.’ I believe you have to start by assessing the credentials, credibility and reputation of the developer and the delivery of the training, hence ‘the singer.’”

FELTG Nation, we’re pleased to introduce you to our newest singer.

Marcus Hill retired earlier this year, ending a distinguished 37-year federal career that included stints with FLETC, the United States Air Force, the Department of the Navy, and the Transportation Security Administration, where he was instrumental in establishing the TSA infrastructure and screening operations at Jacksonville International and Gainesville Regional airports.

Marcus served an active-duty tour with the US Air Force, and retired from the USAF Reserves in 2007. His honors include a 2017 Presidential Rank Award for Meritorious Service, the 2014 Department of Homeland Secretary’s Under Secretary for Management Partnership Award, DON Civilian Meritorious Service Medal, and USAF Meritorious Service and Commendation Medals.

He is currently the Principal of Hill Management Consultancy LLC, a minority, veteran-owned small business. And he serves on the Senior Executives Association Board of Directors.

You’ll have the opportunity to see Marcus during FELTG’s upcoming Emerging Issues in Federal Employment Law virtual event. Marcus will co-present with FELTG President Deb Hopkins the session “When Employees Go Insubordinate: Don’t Mess With the Wrong Elements” on Tuesday, April 27 from 3:15-4:30 pm.

Recently, Marcus and I had a chance to discuss some of FELTG’s favorite topics — leadership, accountability, and labor relations.

DG: What is a key component of effective leadership that is often overlooked?

MH: Empathy; good leaders must exhibit the capacity for empathy. Effective leaders must have the ability to understand others’ thoughts and feelings from their points of view (insead of) the leader automatically overlaying hers/his. My former boss and good friend, Paul Hackenberry, emphasized this with me. He often says, “You don’t get to decide how others feel.”

DG: What lessons, advice or experiences from your Air Force career had the most impact on your federal civilian career?

MH: I credit the Air Force for developing my teaming skills and providing great opportunities to demonstrate them, in both follower and leader roles. Secondly, the Air Force provided my first significant exposure to strategic planning. It emphasized the importance and value of inculcating this process into your organizational DNA to ensure its long-term sustainability and continued relevance. These two experiences/attributes carried over into my civilian career and positioned the organizations in which I served to enjoy many successes.

DG: The pendulum has swung back to a pro-union Administration. What’s the best way for agency labor relations professionals to carve out a positive working relationship with unions? 

MH: Pro-union administrations really allow and expect labor relations professionals to actively engage and include union officials, representing bargaining units, in the planning and execution of their agencies missions. The belief is promoting and leveraging a partnering relationship will result in less labor-management turmoil, and more opportunities to achieve organizational wins through unity of efforts. The best way to carve out a positive working relationship with unions is “to seek to understand before being understood.” Create expectations to share appropriate pre-decisional information, exploit opportunities to dialogue in advance of making unilateral decisions and collaborating to achieve mutually desirable results which satisfy the mission and lion share of people that perform it.

DG: What do you suggest for supervisors and/or leaders who are having a difficult time navigating change?

MH: Actively engage change, don’t run from it. Change is consistent and here to stay. I view change as a process consisting of various phases – shock, denial, acceptance, plan, execute and overcome. The easier you can get through the first two phases, the quicker you can get to identifying and achieving the opportunities presented in the change. There are always opportunities in the change.

DG: What do you think is stopping supervisors from holding their employees accountable for performance and conduct?

MH: Two reasons. The first is supervisors not having a good understanding of the governance related to poor performance and misconduct, and their authorities within laws, regulations and policies. The second is supervisors not feeling comfortable that the institution will support them in holding employees accountable. Therefore, they take on the mindset it’s too hard and risky to pursue. That is why it is critically important to ensure all institutional managers and supervisors are knowledgeable and properly trained to carry out their duties in this space.

DG: What’s your favorite part of teaching/presenting?

MH:  My favorite part of teaching/presenting is hearing from former students/participants on how they were able to apply the learning objectives to achieve desired results. I also like to observe the facial expressions when they “get it” during the training session.

Mr. Hill teaches on numerous FELTG topics, including Leadership, Labor Relations, Employee Relations, and EEO. If you’d like to bring Mr. Hill to your agency (onsite or virtually) for training, contact me at Gephart@FELTG.com.

The Power of Disability Inclusion in the Workplace

By Michael Murray, Special Guest Author, March 22, 2021

I have been so pumped to see meaningful conversations about workplace diversity and inclusion that have been happening around the country. The most progressive workplaces always include those of us with disabilities.

Creating disability-inclusive workplaces big and small, federal or private involves recognizing that people from all walks of life can make valuable contributions. Including the diverse perspectives of people with disabilities leads to innovation, creativity and new ideas that ultimately lead to better outcomes. Some organizations recognize these qualities and intentionally focus on disability employment and inclusion. According to an Accenture report, these “champions” see many benefits: 28% higher revenue, twice the net income, and 30% greater profit margins than those without a similar commitment.

So, if the bottom line shows that disability inclusion is smart policy, then how can organizations overcome resistance and fully embrace it?

Recognizing how subtle biases hurt

To create a disability-inclusive environment, employers and employees need to start by examining micro-messages and unconscious biases happening in the workplace. [Editor’s note: For training on unconscious biases, join FELTG for Honoring Diversity: Eliminating Microaggression and Bias in the Federal Workplace on April 7 from 1-3 pm.]

In a truly inclusive workplace, each person should feel they belong and that their uniqueness is valued. Often, workplaces with diversity and inclusivity aren’t the direct result of a clear policy or rule. Instead, they evolve over time from a collection of subtle, unconscious biases and micro-messages that may seem harmless on the surface. People develop certain filters of what is and isn’t acceptable, sometimes making flawed connections or maps in their brains that lead to poor solutions and lost resources.

One such unconscious bias is the “like-me” bias. Managers may unintentionally hire and have people on their teams who are similar to them, whether physically, culturally or economically. On the surface, these actions don’t immediately appear to favor one individual over another, but when digging deeper, it is often found that these practices cause managers to favor ideas from like-minded individuals, making others feel disconnected from a team and the organization as a whole. This is especially true when engaging with the disability community. For example, you have heard it said, “At least you have your health.” Though the intent may be well meaning, the use of this pleasantry unintentionally implies that having a disability is a negative attribute, which it is not. Other subtle cues in expression, tone, body language and vocabulary can further contribute to whether someone feels engaged or disengaged, included or excluded. Fortunately, biases are not fixed. Biases can change with education, intentional discussions and trainings.

Building an inclusive business culture

The path to disability inclusion is rewarding, and resources are available to help employers along the way. The Employer Assistance and Resource Network on Disability Inclusion (EARN) offers a framework, developed with the help of employers who have already put in the work and found success. EARN outlines seven key elements: leadership commitment to an inclusive culture, outreach and recruiting, talent acquisition and retention, reasonable accommodations, communication of company policies, accessible information and communication technology, and accountability and continuous improvement. Plus, EARN offers strategies for tackling each area.

EARN, in collaboration with the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP), has also developed a Workplace Mental Health Toolkit. This guide helps employers understand how to foster a mental health-friendly work culture through an easy-to-follow framework known as the “4 As” – awareness, accommodations, assistance, and access.

Awareness involves strategies for educating employers and workers about mental health issues and taking action to foster a supportive workplace culture. Accommodations means providing employees with the supports they need to perform their job, such as flexible work arrangements. Assistance refers to helping employees who have, or may develop, a mental health condition, something many employers do through formal employee assistance programs (EAPs). Access encourages employers to assess company healthcare plans to ensure or increase coverage for behavioral or mental health treatment.

Additional resources for building a supportive and inclusive workplace include the Job Accommodation Network, the National Business Group on Health, and the Center for Workplace Mental Health. [Editor’s note: You can learn more about the Accommodation process during FELTG’s upcoming Reasonable Accommodation in the Federal Workplace webinar series, starting July 15.]

Making changes to established structures

Focusing on disability inclusion may mean that employers must question and change organizational structures, such as processes around recruiting, hiring, and training. Are they actively recruiting from institutions or organizations that include people with disabilities? Does the interview process unintentionally screen out people? For example, people with autism may find making eye contact hard or distracting, something that interviewers may falsely use to decide if a candidate is being forthright and engaged. Also, can onboarding or training be modified to accommodate candidates with disabilities?

If disability inclusion is a goal, then support around communication, feedback and collaboration must be available. Employers can establish diversity and inclusion councils, which can include representatives from all levels and backgrounds to develop ways to improve in this area while also serving as ambassadors to the rest of the company.

Employee resource groups also can be valuable to those seeking information or support. Including people with disabilities in each of these strategies is a must.

Leading by example

Employers who invest in and communicate their disability inclusion efforts send their workforce an important message: It is a meaningful exercise with value for everyone. Workplace diversity can improve a federal organization’s performance or a private company’s bottom line, but the benefits extend far beyond financial figures, opening the door to improved productivity, innovation, and reputation and to greater appreciation for every person’s unique gifts.

About Michael Murray

Michael Murray is the chief relationship officer for GT Independence, a national leader in financial management services for self-directed in-home and community-based care. His lifelong drive for inclusion is fueled by his experience as a person with a learning disability and ADHD. Michael is the former Director of the Employer Policy Team at the Department of Labor’s Office of Disability Employment Policy. Michael also served as Deputy Director at the Office of Diversity and Inclusion (ODI) at the U.S. Office of Personnel Management (OPM), where he was also responsible for steering and designing the government-wide policies and programs of 56 Federal agencies throughout the country to increase Federal employment of individuals with disabilities. His lifelong drive for inclusion is fueled by his experience as a person with a learning disability and ADHD. He can be reached at MMurray@gtindependence.com

Takeaways from OPM’s Guidance for Implementation of Executive Order 14003

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By Deborah Hopkins, March 8, 2021

Over the past several weeks, we’ve been anticipating guidance from OPM on Executive Order 14003, and last Friday afternoon, we finally received it. (Who would have ever thought 6 weeks could feel like such a long time!) After an initial read, we’ve highlighted a few items on how EO 14003 impacts the rescinded EOs — items that will answer a number of questions that have been lingering since January 22.

On Executive Order 13950 (Schedule F):

    • OPM approvals of agency petitions to move positions to Schedule F are revoked. Any agency that received such an approval must cancel any actions taken based on OPM approval of the agency’s petition.

On Executive Orders 13836 (Rules for Bargaining) and 13837 (Union Time)

    • Reopen those contracts, folks. Agencies are directed to reopen any union contract that contains any provision implementing President Trump’s workforce EOs. Not only that, if agencies are currently in the process of negotiations, or even at the stage where an impasse has been taken to the Federal Service Impasses Panel, they are now required to revisit the issue and suspend, revise or rescind any changes that were made or proposed as a result of the Trump EOs.
    • Agencies should “take a hard look” to see if EO 13836 influenced the strategies that were used in bargaining with unions. EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13836.
    • Also on 13836, agencies are no longer required to submit CBAs and arbitration decisions to the OPM CBA public database. Interestingly, “OPM, under its own statutory and regulatory authority, is still requiring that agencies submit to OPM, within 10 days of issuance,” any arbitration awards involving performance and misconduct-based actions under chapter 43 and 75.
    • On 13837, if agencies negotiated their contracts to limit union official time to no more than 25 percent for any union official, or limited the amount of official time to one hour per bargaining unit employee, agencies must “engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions.”

An interesting footnote to that: “To the extent agencies were complying with the terms of an expired CBA immediately prior to implementing any EO 13837 requirements, agencies must revert to prior practices until a new agreement is negotiated with the union.” (emphasis mine)

On Executive Order 13839 (Discipline and Performance Accountability)

    • “[A]gencies should not delay in implementing the requirements of Section 3(e) of EO 14003 as it relates to any changes to agency policies made as a result of OPM’s regulations.”

OPM will also be amending its recently issued regulations on EO 13839, to comply with 14003. There will be at least a few weeks, if not several months, between now and when OPM’s amended regulations are posted for comment and ultimately become final, where agency actions might be in conflict with the existing OPM regulations that incorporated EO 13839. This OPM guidance lets agencies know they are free to make policy changes to comply with EO 14003 before OPM’s regulations are amended, and agency leadership will not need to be concerned that their policies and subsequent actions are in violation of OPM regulations. In other words, OPM won’t be enforcing those regulations.

For example, agencies would now be permitted to implement a clean record agreement with an employee, even though current regulations prohibit such an action. Eventually the regulations will incorporate the directives found in 14003.

This is just a selection of takeaways, and isn’t comprehensive, so be sure to read the memo for yourself then join me and Ann Boehm on April 8 as we entertain a discussion on what this all means for Federal agencies, as well as how this guidance interplays with Executive Orders 13985 and 13988, in the webinar Biden Executive Orders, OPM Guidance, and an Update on the Status of the Civil Service.

We’re also preparing a list of follow-up questions for OPM, and will have answers in time for the training. We would be happy to include your questions as well, if you’ll send them along. Hopkins@FELTG.com