The Year in Review: Top FELTG Newsletter Stories of 2021

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By Dan Gephart, Training Director

Since 2018, our year-end News Flash has unveiled the most popular FELTG newsletter stories (based on the number of reads and forwards) of the previous 12 months. Usually, our most-read stories mirror FELTG Nation’s deep interest in the topics of performance, conduct, telework, and reasonable accommodation. This year was very similar, but the context within which we discussed those topics was unique, to say the least.

The year was only six days old when a violent mob stormed the Capitol, assaulted Federal law enforcement, and nearly ended the peaceful transition of power which we’ve all taken for granted. As the year ends, the ominous Omicron variant is spreading across the country and further delaying efforts to get employees back into the physical workplace.

In between those two events, FELTG and the entire Federal EEO Community lost a true giant when Ernie Hadley suddenly passed away in April. Ernie was a founder and the first President of FELTG. He wrote more than a dozen books – not just any books, but the foundational legal texts of Federal EEO law. He was brilliant, funny, and compassionate – a lover of cars, sports, music, literature. He cared deeply about civil rights. He was unafraid to change directions late in life to pursue a career in publishing.

It was a difficult and often dark year, but there were some bright spots throughout, and you – the Federal workforce – continued to do important work under trying circumstances. To better represent the constantly changing up-and-down nature of 2021, we’ve decided to frame this feature as a month-by-month look at the most-read stories.

January

For the second straight year, a photo of the U.S. Capitol graced FELTG President Deborah Hopkins’ introduction to our January newsletter. But what a difference a year made. The bucolic long shot of the Mall with the Capitol in the background circa 2020 was replaced this year by a photo of an angry mob of insurrectionists wrestling barriers away from the Capitol police (photo below).

Our most-read story in January was: Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide. It’s not surprising that Deb’s story about disciplining Feds who may have taken part in the riot received so many views and forwards. Off-duty misconduct is a perennial challenge. Meanwhile, our second most-read article Requiring Vaccinations? Follow EEOC Steps to Avoid Discrimination, written by special contributor Frank Ferreri, distilled early guidance for agencies hoping to bring employees back to the workplace. Those hopes were eventually dashed, and we’d see guidance updated throughout the year.

February

Extreme political polarization has created rifts in businesses across the country. Unfortunately, the non-political Federal workplace was not immune. Our most-read article of February Does Saying ‘All Lives Matter’ Create a Hostile Work Environment? resulted, as is the case with many of our articles, from specific questions we received through our Ask FELTG feature and in our training sessions.

The second most-read article of the month details the story of an EEO director removed from her position and reassigned to another office with no involvement or influence over EEO. Why? Revisit Barbara Haga’s Director of EE Oh No! When HR Practitioners Fail to Perform.

March

The Federal Circuit’s decision in Santos v. NASA this March was a stunner. The court said that an agency must have substantial evidence that the employee was performing poorly before it is allowed to put the employee on a PIP. Just days after the decision, Deb’s story Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs broke down Santos, highlighting what’s changed and, just as importantly, what hasn’t.

In the next most-read story EEOC Decision Details Everything a Manager Should Not Do, Meghan Droste dug into another recent decision. Thomasina B. v. Department of Defense serves as a textbook case of everything an agency should not do in a harassment case.

Two recent decisions. Two thoughtful, analytical, and guidance-filled articles. If you know someone who isn’t subscribed to the free FELTG Newsletter, share this link (https://feltg-stage-ada.stage3.estlandhosting.com/) with them and tell them to scroll to the bottom of the page and subscribe. They will thank you.

April

In memory of Ernie Hadley’s passing, we republished his 2013 article Are You a Microaggressor?. It was our second most-read story of the month. With microaggressions now a major training point in the Diversity, Equity, Inclusion and Accessibility (DEIA) arena, it proved what we all knew: Ernie was years ahead of the curve.

Our most-read article in April was Deb’s tale about a disruptive service dog who also may not have been very good at her job – The Golden Doodle Who Wouldn’t Nuzzle: A Service Dog or Not?

May

Do you remember the hopefulness of May? Like many Americans, I had recently received my second vaccination and thought we were closing in on that thing we kept calling “normalcy.” Agencies agreed and started preparing for their employees to return to the workplace, keeping in mind that many would want to continue working from home. We shared 4 Tips to Prepare for Increase in Requests for Accommodation, Telework and it was our most-read story of the month. Meanwhile, Deb shared some great advice for how to handle SESers when they break bad – What You Should Know About SES Discipline.

June

Summer brought us another report from so-called experts pushing for at-will Federal employment – A Schedule F Look-alike Rears Its Ugly Head. In June’s most-read story, Deb reminded everyone that we don’t need civil service reform. Just follow the rules and hold employees accountable. If you’re not sure how to do that, you don’t need some “think piece” to tell you what to do. Just attend the next UnCivil Servant training on Feb. 9-10.

In our second-most read article, Meghan’s Tips From the Other Side: Retaliation is a Very Real Issue discussed the importance of training to avoid reprisal. This issue is as timely as ever as EEO offices deal with the influx of complaints related to vaccine exemption requests. Join us on January 19 for the webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace.

July

Some people (I won’t say who) are predicting that we’ll have a fully functioning MSPB next year. But on that great day when a quorum returns to the Board, the new members are going to find they have an “unprecedented Herculean task” ahead of them, as FELTG Past President William Wiley put it in the most-read story of July – The To-Do List for the New MSPB Board Members.

In Should Your Agency Use Progressive Discipline or Performance Demonstration Periods With Probationers? – the second most-read article of the month – Deb answered the question in the headline with both a short answer (No!) and a long one.

August

The rates of vaccination were continuing to rise and there was hope that it could lead to a return to the physical workplace. The VA announced that some employees would be required to get COVID vaccinations. And then the backlash erupted. (This was before the vaccines were mandated via Executive Order). Government-wide, Federal EEO and HR professionals started to worry. Ann Boehm’s The Good News: If Feds Want to Force You to Discipline Them for Disobeying Mask and Vaccine Rules, You May Do So, the most-read newsletter article of August, explained how and why (based on the information available at that time) to discipline those who refused to get vaccinated.

Speaking of the VA, the Federal Circuit hit the agency with a shocker in August. In Undoing the Last Four Years: Federal Circuit Clarifies the Burden of Proof in VA Discipline, Deb explained what the Fed Circuit decision means for disciplinary actions at the VA.

September

Following President Biden’s Executive Order 14043 requiring all Federal employees to be vaccinated against COVID-19, FELTG customers had questions. Our most-read story in September was Now that Vaccines are Mandated for Federal Employees, Can You Ask an Employee to Provide Your Agency with a Copy of Their Vaccine Card?

The second most-read story – Well, Excu-u-use Me! Sometimes, Feds Say the Darndest Things – stemmed from Hansen v. DHS, No. 2017-2584. An agency proposed removal after an employee’s positive drug test for marijuana. The employee argued that he didn’t know he consumed a pot brownie at a party. He thought he felt funny from a bad bratwurst, to which the EEOC basically said baloney. [Hansen will be discussed during the 60-minute webinar High Times and Misdemeanors: Weed and the Workplace on March 3.]

October

As the vaccine mandate took hold, we heard from many of you with questions about how to handle specific scenarios. The most-read story in October – So About That Employee Who Gets Vaccinated After Being Removed – addressed one of the most likely scenarios.

After Rep. Carolyn Maloney (D-NY) asked the Government Accountability Office to look at reforming the Federal EEO process, Ann Boehm jumped in with her thoughts. The Federal EEO Process is Broken: Can We Fix It? was the second-most read story of the month.

November

Questions about the vaccine mandate continued in November. Our most-read article – Is Removing Fed for Lack of Vaccination a Potential Due Process Violation? – addressed a very real concern.

In our second most-read article, Deb highlighted a recent case involving a USPS letter carrier. The EEOC decision sent a clear message: Partially accommodating an employee without considering all his/her/their restrictions is not reasonable accommodation at all. Read about it in The Word ‘Reasonable’ Is Half of Reasonable Accommodation.

December

Time and again, we’ve told you: Issuing a letter of caution, warning, expectation, or concern, is more trouble than it’s worth. Deb explains how one of these “lesser letters” came back to haunt an agency in our most-read story of December A Letter of Caution Can Equal Reprisal – or, Another Yellow Donut Case.

And, of course, our second-most read story dealt with the vaccine mandate – Updated Guidance on Vaccine Refusals Just in Time for the Holidays.

If you’re scoring at home, that’s seven months where one of the top two most-read stories involved vaccine mandates. And in the hours after that updated guidance story was published on FELTG’s web site last week, a Federal judge in Georgia issued an injunction on the vaccine mandate for Federal contractors.

I’m sure vaccine mandates and other pandemic-related issues will continue to present challenges for the Federal workplace in the upcoming year. As we did in 2021, FELTG will continue to steer you through those challenges with the most up-to-date guidance.

Happy holidays and best wishes for a great 2022! Gephart@FELTG.com

A Fully Functioning MSPB and Other (Overly?) Optimistic Predictions

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By Dan Gephart, December 7, 2021

By the time you read the first FELTG Newsletter of next year, it will be five (yes, five) years since the MSPB had a quorum. Heck, it’s been almost three years since the agency has even had a single board member.

Not.

One.

Member.

This is unacceptable. It’s unfair to employees, especially whistleblowers, and it’s unfair to agencies. It’s unfair to supervisors. It’s unfair to taxpayers. The fact that this has not been a priority is worrisome. Yet it continues, and petitions for review keep piling up amid the cobwebs on that darkened Executive Floor at MSPB Headquarters. It’s going to take new members a looooong time to get through that backlog.

The last couple years have been difficult for everyone. As we rumble toward the end of the calendar year, I resolve to stay optimistic, especially when it comes to looking ahead to 2022.

My rosy outlook for the Federal workplace includes a fully functioning Merit Systems Protection Board. I know that seems impossible, but three nominees have made it through committee. Now we need the Senate vote. It could happen.

But why stop there with positive predictions? Here are a few others:

  • Agencies will embrace the President’s Management Agenda.
  • Leaders will heed the lessons learned during the pandemic.
  • Federal EEO professionals will successfully navigate the vaccine mandates.
  • And, since I’m really putting myself out on a limb here, everyone will treat each other with empathy.

President’s Management Agenda

Last month, the Biden-Harris Administration released its Management Agenda Vision with three priorities. This is the priority that has our attention:

We will take new steps to attract, hire, involve, develop, support, and empower talent who can help us meet the challenges of today and tomorrow.

This PMA lays out more specifics on how to do this, including “continuing to build a diverse, equitable, inclusive, and accessible workforce that reflects our nation” and “ensuring that every Federal employee’s job is a good job with the tools, work environment, and resources they need to succeed.”

We at FELTG headquarters couldn’t agree more. Empowerment of federal supervisors has been the cornerstone of our training programs the past 20 years (Attend UnCivil Servant: Holding Employees Accountable for Performance and Conduct on February 9-10 and you’ll find out how.) and our commitment to DEIA is built into our mission statement. If you care about DEIA – and you better, because the White House certainly does – we’ll offer plenty of opportunities for training, including our March 9 session on Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace.

I’m also glad to see emphasis on employee engagement – a tool that is, unfortunately, underused in the federal sector.

The Management Agenda also calls for management to respect employee rights to “organize, bargain collectively, and have their voices heard through their unions in agency decisions that genuinely matter.” Wow, a true partnership for the betterment of taxpayers? Who wouldn’t want that, even if it does give birth to the oxymoronic “neutral encouragement” that Ann Boehm discussed in her column last month.

The return to a more collaborative labor-management relationship will be discussed in the two-hour virtual training Navigating Federal Labor Relations in 2022 on January 13. Register now.

Management agendas come and go with presidential administrations. They usually generate more talk than actual results. However, if agency leaders can dig down into the latest PMA, I think they’ll see several paths to improved productivity and workplace morale.

Pandemic Lessons

Several months ago, the Delta variant put a hard stop to agencies’ plans to return their employees to the physical workspace. Now, we hold our collective breath for more information about the Omicron variant. Yet, some agencies are dusting off those return plans. And others, taking a similarly optimistic approach to mine, have already set return dates.

Bringing people back without a determined plan that considers what happened during the pandemic is not only a wasted opportunity, but also a huge miscalculation. Think about the amount of flexibility and adaptability you and your employees showed over the last two years. How do you keep and expand those qualities? How well did your supervisors do managing remote workers? What did you discover out about virtual meetings?

OPM’s Additional Guidance on Post-Reentry Personnel Policies and Work Environment makes that point clear, as a huge portion of its 38-page guidance focuses on telework. OPM suggests agencies “take this opportunity to adjust their telework policies to reflect a new understanding about how telework has worked at their agencies.”

EEO and Vaccine Mandates

The success of vaccines is allowing agencies to consider returning employees en masse to the physical workspace. Yet, more than 1,600 people were still dying every day from the virus over the past 7 days. The pandemic is not over, and the vaccine mandates aren’t going to disappear anytime soon. Already, it’s become clear that enforcing the mandates has been, to put it lightly, challenging, and fraught with opportunities for EEO missteps.

FELTG has been the leader on providing training on this topic. FELTG President Deborah Hopkins and Instructor Katherine Atkinson presented several training events on the topic over the last several months, each session offering the latest guidance and newest strategies. That continues February 8 with Managing COVID-related EEO Challenges in the Federal Workplace.

First, you must determine whether to provide the reasonable accommodation (disability- or religious-based) of an exception to the mandate. However, it doesn’t end once that determination is made – even if the decision was to not provide the accommodation. It’s highly likely that a lot of these exemption denials will turn into complaints.

And throughout it all, supervisors will have to be on their best behavior. Retaliation is asserted in almost 45 percent of EEO complaints. Considering the emotions and politics wrapped up in this issue, it’s likely you’ll be fielding your share of reprisal complaints next year. (I know. I know. What happened to my rosy optimism?) On January 19, Katie will present Stop the Spread of COVID-related Retaliation in the Federal Workplace, where she’ll walk you through the details of recent EEOC guidance, discuss the various forms of EEO reprisal and why it’s the most common category in discrimination findings, and provide important guidance on what can be done to limit retaliation from happening at your agency.

Empathy all Around

When leadership is the topic, I like to go straight to the experts. I’m lucky we have quite a few FELTG instructors who fit that description – Anthony Marchese, Scott Boehm, and Marcus Hill. It’s not a coincidence that they have all, at one point or another, mentioned empathy as a critical attribute for successful leadership.

Scott, who has 32 years of leadership experience with the Department of Defense and Intelligence Community, told me last year that leaders need to have “the ability to put themselves in someone else’s shoes. They [must be] open-minded enough to understand their followers’ motivations, hopes, dreams, and problems so they can forge deep, personal connections with them.”

More recently, Marcus, a former Senior Executive Advisor for the Federal Law Enforcement Training Centers, called empathy the key component of effective leadership that is often overlooked. “Effective leaders must have the ability to understand others’ thoughts and feelings from their points of view (instead 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.’”

Leaders can set the tone and create a workplace where empathy can thrive. Think of the power an agency could access if that empathy spread to all employees. Your leaders would be leading. Performance would improve. There would be fewer EEO complaints. And employees would feel more connection to your organization and its mission. Talk about the “model workplace!”

Creating an empathetic workplace isn’t easy, and it won’t happen overnight. Take it one step at a time – and the first step is simple: Listen.

Is my optimism misplaced? Do you have any optimistic predictions for 2022? Let me know. And best wishes for a positive 2022 to everyone in FELTG Nation. Gephart@FELTG.com

Go the Extra Yard to Support Feds With Mental Health Conditions

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By Dan Gephart, November 17, 2021

On the day Philadelphia Eagles’ offensive lineman Lane Johnson returned to action after a three-game absence, Atlanta Falcons’ wide receiver Calvin Ridley announced that he was stepping away from football for a while. What’s the big deal? The NFL injury report is a constantly fluid and ever-changing list, especially in the age of COVID.  What made this particular Sunday’s roster moves unique was that Johnson and Ridley cited mental health as the reason for their absences.

Earlier this year, tennis star Naomi Osaka and gymnast Simone Biles took their own leaves of absence from sports to address their mental health.

Elite athletes are not alone. There was a mental health crisis in this country before the pandemic, which has only exacerbated it further. Four in ten adults are reporting symptoms of anxiety and depression – up from one in ten during pre-pandemic times. There has also been a significant increase in substance abuse and suicidal ideation.

The pandemic-related increase in mental health challenges has hit essential workers the hardest. While most Americans immediately think of Uber drivers and Grub Hub deliverers, we all know the critical essential work of Federal employees in health, science, emergency assistance, and their supportive fields.

As a Philly sports fan, I watched the Lane Johnson situation closely. I was pleased with how the Eagles organization handled this very public health issue. (It’s one of the few things the 4-6 team has correctly done this year). It appears that the Atlanta Falcons are providing the same support for Ridley.

There is a mental health crisis in this country. And so having well-known figures discuss their challenges can be a real positive. Unfortunately, misinformation continues to spread.

Someone sent me a clip of a Fox Sports show where former NFL player Marcellus Wiley (no relation to FELTG’s Founding Father and former President) launched a several-minute tirade about mental health and sports. I highly recommend that you do NOT waste your time watching the clip. I think you will learn all that you need to know about his perspective from the tweet he sent out in advance of his show:

“The NFL is not a job for the physically weak or the mentally weak! #darwinism (But, there’s always work at that the post office.)”

In one sentence, the former linebacker found a way to demean mental illness and Federal employees. That’s a quick way to get on my @*#! list.

As we wrote two years ago, it’s not true that:

  • People with mental illness are unstable employees and more prone to violence.
  • People with mental health issues are unable to hold down a job.
  • Personality weakness or character flaws cause mental health problems.

So how do you provide a positive environment for employees with mental health conditions? One, you educate yourself. Personally, I’m a big fan of programs developed by the National Association of Mental Illness (NAMI) – a great organization that has been a savior to many families during difficult times.

For a more specific approach for Federal supervisors and HR/EEO professionals, attend the two-hour virtual training event Managing Employee Mental Health Challenges During and After the COVID-19 Pandemic, presented by Shana Palmieri, LCSW, on December 9, starting at 1 pm ET.

In the meantime, consider the following suggestions by Shana for creating a trusting partnership with employees with mental health challenges.

  • Develop clear expectations and agreed upon solutions to meet the goals and expectations of the job
  • Communicate in a clear and concise manner, especially the policies and procedures that may impact their performance
  • Provide respectful, but direct feedback. Also, ask the employee how they prefer to receive the feedback,
  • Avoid judgments or assumptions.
  • Avoid using language that promotes stigma (crazy, insane, loco, nut job…).

Shana will provide plenty of specific examples of reasonable accommodations and offer useful insight into numerous mental health conditions. Gephart@FELTG.com

And Now a Word With … Tinisha Agramonte on First-Generation Professionals

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By Dan Gephart, November 8, 2022

After she entered the Senior Executive Service, Tinisha Agramonte became a sought-after speaker. She was often asked to serve on panels to discuss the obstacles she faced in climbing the career ladder. As she prepared for those conference panels, something occurred to her.

“Most of the challenges I had to navigate were connected to my low social capital (networks), lack of financial resources, and non-existent acumen on how to navigate and charter a career path when I didn’t understand the unwritten rules, social norms, and how to succeed in a professional environment, which was new territory for me,” she said.

Agramonte started talking about challenges of first-generation professionals. Despite initial reluctance from some people, many others connected with her message. As the Department of Commerce’s Office of Civil Rights Director, Agramonte created the FGP Initiative and was the force behind the First Generation Professionals Summit as well as some of the initial research on first-generation professionals.

And then the FPG Initiative’s credibility was cemented when “first-generation professionals” were included among the list of underserved communities in President Biden’s Executive Order Advancing Diversity, Equity, Inclusion, and Accessibility in the Federal Government.

“I literally cried. Several colleagues forwarded the EO to me along with congratulatory notes. Then, I learned that some of my closest allies and colleagues at the Equal Employment Opportunity Commission and the Office of Personnel Management, who were all early supporters of the FGP Initiative, made sure that FGPs were included in the EO as part of ‘underserved and underrepresented communities.’”

Agramonte left the Department of Commerce last year to become the Chief Diversity Officer at Motorola Solutions. We caught up with Agramonte recently to discuss diversity, inclusion, and her FPG initiative.

DG: Congratulations on your new job. What are the biggest differences between developing a diversity & inclusion plan in the private sector and the public sector?

TA: There’s no real difference. Both require a comprehensive assessment of the systems (policies, practices and procedures) and employee sentiments around DEI to understand what is working well and the areas of opportunities; then a holistic DEI strategy that establishes clear, meaningful, and measurable objectives and metrics aligned with business goals that address deficiencies, along with accountabilities, a communication plan, and strategy to evaluate, monitor, and report progress that will lead to long-term, sustainable outcomes.

DG: Per the Executive Order, Federal agencies are now looking closely (or at least, they should be looking closely) at their diversity, equity, inclusion, and accessibility practices. Where should they start in terms of addressing equity and inclusion for first-generation professionals?

TA: First, understand the practices that serve as barriers and may hinder First Gens from successfully accessing and thriving in our federal workplaces. A good place to start is to review Qualitative Research on Barriers to Workplace Inclusion for First Generation, which is the study I commissioned through the U.S. Census Bureau, to help inform the Department of Commerce’s efforts to better understand and address diversity, equity and inclusion issues for FGPs.

In terms of immediate impact, we should start with addressing potential bias in recruitment and development practices. For example, in recruitment, increase awareness of biases that seep into our recruitment, especially when people are making determinations on who and what constitutes the best and the brightest, (such as) hiring managers who feel like top talent looks like ONLY hiring students or graduates from Ivy league institutions; graduates who completed their education in four years or less; and those who have highly coveted or unpaid internships. Research has shown that first-gen students, in particular those from low-income families may not have had exposure to experiences (traveling, sporting activities, tutoring, prep programs, etc.), the financial resources, or social capital that afforded them equitable access and opportunities to be competitive for entrance to out-of-state or high tuition academic institutions; the luxury to take unpaid internships; or ability to complete school in four years while working their way through school.

Additionally, once they figure out how to access and gain entry to the workforce, the “like me” bias may work against them if leaders focus on mentoring people “like them,” who have similar lived experiences as themselves i.e., same economic status background, same schools/organizations, etc. Without those relationships, they may not have the mentoring, advocacy, and sponsorship to be developed and advanced.

DG: What was the biggest misconception you faced when creating the First-Generation Professionals Group?

TA: The biggest misconception was that there are not many people in the population, when actually about 56% of undergraduate students nationally were first generation college students. [Other misconceptions were that] there are no real barriers faced by this population; I was pitting blue collar against white collar work and low income against high income; and that this would be about giving this population a handout versus recognizing we should extend a hand by identifying and eradicating barriers like we do for other under-represented, underserved communities.

The reality is that this population represents trailblazers who have demonstrated grit, resiliency, resourcefulness, strong work ethic, and determination, which are all valuable traits for our workplaces. This is about their strengths; not deficits caused by inequitable circumstances.

“Humble beginning should not limit how far one’s talents and drive will take them.” That’s my mantra and quote.

DG: What would you say was your biggest success or most satisfying success story that came out of your First-Generation Professionals Group efforts at Commerce?

TA: The first-ever research that I’m aware of for First Generation Professionals; the Summit; the sense of community and awareness created by the Initiative; the inclusion of this population in the Executive Order. Uncovering how many leaders are First Generation Professionals who told me that they worked hard to suppress their “real story” to cover and fit in, but how this initiative made them proud of those lived experiences and gave them an identity to be proud of.

[ FELTG has created numerous training opportunities to help you meet your DEIA needs, including the following upcoming classes Managing Employee Mental Health Challenges During and After the COVID-19 Pandemic (December 9) and Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace (March 9, 2022). Also, DEIA topics will be discussed during Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training (January 24-27, 2022). If you want to bring one of FELTG’s DEIA classes to your agency, contact Training Director Dan Gephart at Gephart@FELTG.com.]

 

5 Suggestions for Hiring the Right Person

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By Dan Gephart, October 20, 2021

Here at FELTG, we often get inquiries from HR professionals and supervisors wondering what they can do about their poor-performing and/or misbehaving employees. By the time someone seeks our guidance, the employee has already created havoc and damaged morale or, at the very least, lowered productivity.

As any regular FELTG customer or reader knows, that’s our bailiwick, and we can help you take the steps necessary to rid your agency of the problem.

If you listened to the press and certain politicians, you’d think all these employees were bad people. But that’s not the case. Many times, employees struggle with performance issues (and sometimes conduct) because they are poor fits for the job. And that often goes back to the hiring manager.

Look, we all know hiring someone into the Federal workforce can be a long and patience-trying process. And we know that if you’re in the market for a new employee, you’re likely short-staffed and working hard to pick up the slack. You probably feel like you don’t have enough time or energy to focus your full attention on the hiring process.

Who knows, maybe you get lucky and hire a star. But more likely, failure to go all in on the hiring process will probably result in you reaching out to FELTG within a few years to ask us how to handle your “problem employee.”

Even more importantly, President Biden has issued Executive Orders that charge you with  promoting diversity, especially among traditionally underserved populations. In the most recent Federal Employee Viewpoint Survey, 79 percent of employees agreed that their supervisor was committed to a workforce representative of all segments of society. That’s a solid C+. Let’s just say that there is a lot of room for improvement.

Here are 5 tips to help you navigate the hiring process successfully:

1 – Prepare. If you’re just going through the motions to get to the interview, you are miscalculating greatly. As Barbara Haga will explain in her December 7 virtual training Successful Hiring: Effective Techniques for Interviewing and Reference Checking, “the time invested in preparation pays huge dividends.” The pre-interview part of the hiring process includes writing the position description and job announcement and preparing interview questions.

Skipping over any of these parts will come back to haunt you at some point. So closely review the job description to ensure it’s up to date, and that all the duties and functions are specified, and the required skills and abilities are included. Make sure the job announcement gives a full and accurate description of the job. Nobody should be surprised about the job they’re taking on. Also, the major duties and responsibilities should match the essential functions of the job, which should be measured by critical elements. Doing this now will help you later. 

2 – Make sure your selection criteria is job-related. Once you get to the candidates with the minimum qualifications, it’s onto the selection criteria. These criteria are often unique to the specific position and will be key to selecting the most-qualified candidate.

Ensure your selection criteria is equally applied to all job candidates and beware of the subjective. It’s OK to be subjective. In fact, it’s often necessary. But if the criteria is not job-related, you could be on shaky ground. For example, in Varley v. Attorney General, EEOC Appeal No. 01972338 (1998), the agency selected a polygraph examiner based on his “people skills.” But these skills were not in the guidelines. Good judgment, self-motivation and – get this folks — ability to work well alone were in the guidelines. People skills should not be a consideration for someone who works alone.

Applying subjectivity to criteria that is not strongly job-related could lead to discriminatory decisions, which leads us to our next tip.

3 – Beware what you ask. You’re going to ask a lot of questions before you know if you have the right person. But those questions should only be asked if they are providing information “essential for determining if a person is qualified for the job.”

Agencies can get into trouble when requesting information that touches on protected categories. Those categories are race, color, national origin, religion, sex, and reprisal/retaliation, age, genetic information, and disability. Not only should you not ask about these categories directly, be careful that your questions don’t indirectly elicit answers that you give information about protected categories. Read the next article by Michael Rhoads for more on this topic. And join Katherine Atkinson on October 26 for a half-day virtual training on Nondiscriminatory Hiring in the Federal Workplace: Advancing Diversity, Equity, Inclusion and Accessibility.

4 – Avoid the first impression trap. Three years ago, I wrote about a brand-new professional sports mascot whose introduction to the public went completely haywire. The initial reaction to Gritty’s first press conference was so incredibly negative, it’s hard to believe that the Philadelphia Flyers’ furball made it to a second day. But he did. And, as I noted in the article, he started to grow on people. I mean that positively, not in a “I have a rash that won’t go away” way.

First impressions are formed within milliseconds and are based heavily on our biases. Relying on that “initial gut feeling” will lead to poor hiring decisions as well as a staff that looks and thinks a lot like you.

By the way, Gritty has come a long way in the last three years. The one-time laughingstock is now one of the most recognized and popular mascots in all of professional sports. In fact, Business Insider Magazine recently ranked Gritty the top professional mascot out of 110 in American professional sports leagues, a spot ahead of his neighbor the Phillie Phanatic. Sadly, mascots are all us Philly fans have to cheer these days.

5 – Make effective use of the probationary period. During the probationary period, the employee’s MSPB appeal rights are limited. Consider those first 12 months, depending on the position, as part of the hiring process. Most employees will be on their best behavior when they start a new job. If, during that probationary period, it becomes clear to you that the employee is not able to do the job, remove the person. It’s that simple and it’s only fair to you, the employee and the team.

Oh, and one final bonus suggestion. If you do not have DEIA on your mind as you’re making these hires, then you’ve made a big mistake. DEIA – diversity, equity, inclusion, and accessibility – is a major component of President Biden’s Executive Orders, which charge agencies with making the Federal workplace look more like America. So, if your applicant pool is looking like it’s always looked, then it’s time for you to find new places to recruit. As FELTG Instructor Marcus Hill told virtual attendees earlier this year, it’s time to “go where the candidates are.” Consider social media and online forums. Visit colleges and universities that haven’t been a part of your usual search and include technical schools if you haven’t already. Have you looked at community programs or non-profit organizations as sources for recruits?

And you can just ignore this advice. Then I’ll expect to hear from you in a couple of years. Gephart@FELTG.com

Well, Excu-u-use Me! Sometimes, Feds Say the Darndest Things

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By Dan Gephart, September 14, 2021

Ever hear about the Federal employee who walked out of Whole Foods without paying for the two tacos in his hands? When stopped by security, he claimed he “thought the tacos were comped for Federal employees.”

Or how about the Fed who paid for his family’s entire Disney vacation with his government credit card? It was an accident, he said. He meant to use his own card. Yes, sure, it was an accident when he paid for the flight. And again, when he paid for the hotel. And again, when he paid for the rental car.

But what if the taco-buying Fed really did think he was comped? I don’t know, maybe he missed his day of ethics training. Or what if the Disney vacationer’s personal credit card looked almost identical to his government card?

Sometimes an employee’s excuse for misconduct may sound as illogical as the concept to the Broadway show Cats. Before you laugh off the premise, though, give it some consideration. After all, the MSPB once reversed an employee’s removal for failing a drug test when his excuse was that his soon-to-be-ex-wife laced his cigar with marijuana. The ol’ “my wife put weed in my cigar” excuse? Come on! That sounds like our drug-tested Fed was blowing smoke. But guess what? The evidence backed it up. After lacing the cigar, the wife called the employee’s supervisor and suggested her husband be drug-tested.

That evidence, however, was clearly missing for the IT specialist in Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018). A random drug test revealed marijuana in his system and the agency proposed his removal for “positive test for illegal drug use— marijuana.”

The appellant claimed he unknowingly consumed drug-laced brownies at a party. Who hosted the party and secretly served pot brownies to unsuspecting guests? Well, the appellant didn’t actually “know” the host. In fact, he claimed, he didn’t even know the brownies were made with marijuana until days later. He said he never felt the effects of the marijuana and attributed what he did feel (mostly nauseous) to eating bratwurst.

The MSPB found that he failed to meet his burden of “showing such inadvertent ingestion” and affirmed his removal.

For more on Hansen and other similar cases, join FELTG President Deborah Hopkins, starting at 9:30 am ET on Thursday, September 30 for High Times and Misdemeanors: Weed and the Federal Workplace. If you’re looking for guidance on handling off-duty misbehavior in general, join FELTG Instructor Bob Woods for Got Nexus? Accountability for Off-duty Conduct on Tuesday, September 28, starting at 11:15 am ET.  Both sessions are part of our Federal Workplace 2021: Accountability, Challenges and Trends event, which runs event runs September 27-October 1. Click here to find out more about this exciting annual event. Gephart@FELTG.com

And Now a Word With … Ambassador Gina Abercrombie-Winstanley

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By Dan Gephart, August 23, 2021

A year ago, the concept of “diversity training” was as welcome in the Federal workplace as a squirrel at a dog park.

But it’s now been almost seven months since President Joe Biden took office and immediately issued two Executive Orders aimed not just at bringing back diversity training, but also at improving the diversity, equity, inclusion, and accessibility of the Federal workplace – and the customers it serves.

This sudden about-face has left many agencies scrambling to figure out how to meet the goals laid out in those two Executive Orders, as well as the third diversity-related EO issued a couple months later.

We reached out to Ambassador Gina Abercrombie-Winstanley, who was recently named the first Chief Diversity and Inclusion Officer at the US Department of State. Ambassador Abercrombie-Winstanley’s 30-year diplomatic career includes stints advising the Commander of U.S. cyber forces on our foreign policy priorities, expanding State’s counterterrorism partners and programs, and coordinating the largest evacuation of American citizens from a war zone since WWII. She remains the longest serving U.S. Ambassador to the Republic of Malta.

Ambassador Abercrombie-Winstanley is not opposed to taking on another difficult challenge. After all, State is sometimes derided as too “male, pale and Yale.” Ambassador Abercrombie-Winstanley’s focus early on in her tenure as Chief Diversity and Inclusion Officers has been on getting the right data and finding the barriers to diversity.

DG: Everyone seems to have different definitions of diversity and/or inclusion. How do you define the terms?

GA: Diversity, of course, is a nice broad term that can mean any number of things. Our focus is on those who are underrepresented in the Department of State and part of protected classes as EEO lays them out. It’s a pretty specific definition on the one hand with how we’re going to be judged. In the department, we include a wide variety of aspects of human beings – backgrounds, perspectives, lived experiences brought about by visible differences, that is how we would define the diversity aspect of it.

The inclusion part and the accessibility part aren’t ensuring that everyone reaches same destination or same level because that’s impossible, but that everyone has ability to reach their potential within our organization. What we want not to do is waste talent. We don’t want to waste the money we spend on training, or on fellowships for people to join the State Department. The money from our budget is taxpayer money. If people are feeling stymied, unfairly disadvantaged, or discriminated against or dis-included, you’re wasting the talent, the resources. Our job is to make sure we make measurable improvements in those areas.

DG: What is your top priority or first goal as Chief Diversity and Inclusion Officer?

GA: Two things we started doing my first day as secretary were communication and messaging. We have talked about (the value of diversity) a long time, and there’s a high level of skepticism in our organization. Why is this going to be any different than last time? We have to combine not only giving the message in a consistent, clear, and measurable way, but we also have to build the trust. Building the trust means listen to what we say and watch what we do.

To measure our accomplishments, we have to know where we are right now. We have done some work. One of my colleagues said “Gina, nothing but the hard stuff left for you.” You have to get that baseline, as everybody knows.

We are grappling with the numbers. Many don’t self-report. We want to know why (they) didn’t. There are several reasons, (such as) they thought it wouldn’t make a difference. But that information goes into how much money we give, how much effort we give, and how much success we will have.

DG: In your experience, what are the challenges faced by members of historically underrepresented groups within the State Department?

GA: I hosted an extraordinary roundtable yesterday on the anniversary of the ADA — me interviewing four employees, two posted overseas and two domestic, who have disabilities of various sorts. They talked about what works, what has been helpful from managers and supervisors, and what can we do to ensure their inclusion and their success. I was taking notes as furiously as anyone at that table.

Of our four panelists, only two had self-identified themselves. I’m sure both will go in and do it in short order. We need people to understand that the data on race, gender, sexual orientation, disability that we need to collect … none of that is connected to names. It’s anonymous data. What percentage we have. It doesn’t come with names, just the categories of the protected classes.

People say, “I don’t want to identify, maybe someone will discriminate against me.” And then I talk about the intersectionality of it, that we are responsible for each other. There are women and people of color who can’t hide it. We need to demand our organization value us for who we are.”

DG: Is it harder to do this job being the first person to hold the title, or do you think that it provides you freedom in that you’re not beholden to doing things a certain way?

GA: I have to spend time building. I hope we don’t have to pass the baton too many times. Our plan is to make our changes systemic. It’s just how we do business. I’m the first diversity and inclusion officer, but the department has made some changes over time. Work has been done in different smaller subtexts. Our Office of Civil Rights has done work. We’re trying to consolidate some of that, so we’re not reinventing the wheel here.

We really have to scrub those numbers, get that data. Whatever we do in this organization is going to be data-based. We have a lot of anecdotal evidence, but I want black and white. We have women not getting to senior positions. We have 87 percent of European Americans in leadership positions – a proportion that does not reflect the ability of everyone within the organization. Why does that happen? What are the choke points?

We have to identify what the barriers are, determine whether we’re asking the wrong questions, or is something wrong with how we advertised the position. Barrier analysis is a major tool in what we have to get after. A little of that has been done already, but my office intends to do it in a robust fashion.

DG: Is there a measure or mark by which you will judge your success? In other words, what will success look and feel like to you once the State Department’s diversity and inclusion goals have been met?

GA: The long-term goal — no quotas, no numerical target, per se. Our organizations should look like America, but it’s very clear we’re not near that. We must make sure that we have everything in place so that if people enter in this career and they have the ability to do this career and they have the willingness to do this hard work because being a diplomat is hard work, but very gratifying … if people are willing to give themselves to public service, it’s incumbent on us to get the unnecessary barriers out of their way. And that’s what we’ll look at as success. Gephart@FELTG.com

FELTG Instructor Marcus Hill contributed to this article.

Averting Retaliation: Fear is OK, but Don’t Act on Anger

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By Dan Gephart, August 18, 2021

I remember very little about second grade, but I can vividly recall sitting in class when my fellow classmate Teresa C. tapped me on the shoulder and very matter-of-factly said, “I know you did it.”

“Did what?” I replied.

“You murdered my father,” she said, “and I’m going to tell the teacher.”

Thanks to Catholic guilt, already deeply ingrained in me at seven years old, my first thought was: When did I do this horrible thing? I eventually realized the claim was ludicrous. I mean, my parents still weren’t letting me cross the avenue by myself. How the heck could I pull off a murder without leaving my side of Fitler Street? Yet, I was certain the teacher would believe Teresa and the police would storm into Room 202 (yes, that really was my second-grade classroom) at any moment. I was terrified.

Fear is a common reaction when an individual feels they’ve been unfairly accused, particularly if they have a lot to lose, such as a job or the respect of peers. Perceived injustice creates psychological discomfort – and the person instinctively tries to find a way out of that discomfort.

I never found a way out of my second-grade discomfort. I spent the next couple of days terrified that the police were going show up at school or my house and take me away. But then again, I was just a seven-year-old kid. For an adult supervisor in the Federal workplace, there is a more common, easier path out of the discomfort. And that’s anger. Unfortunately, while anger may make help you forget your pain for the moment, if can also lead to retaliation when unchecked, especially if:

  • The accusation is very serious.
  • The accusation will negatively impact relationships with others at work.
  • The accused feels that he/she/they are being judged.
  • The accused believes his/her/their job is in jeopardy.

It’s no surprise then that retaliation is asserted in almost 45 percent of EEO complaints, or that findings of discrimination based on retaliation comprised between 42 and 53 percent of all findings from 2009 to 2015. And in many of those findings of retaliation, the original claim under which the complaint was filed was dismissed.

It’s so counter-intuitive, but if you’re named in an EEO complaint — even if you are certain you are wrongly accused — you must find a way to deal with your anger. The other thing you can and, quite frankly, should do is be aware of what retaliation looks like so you know exactly what to avoid. For example, never publicly discuss EEO complaints, don’t make jokes about EEO, and don’t try to isolate the complainant. All of these actions have led to findings of discrimination on the basis of retaliation.

To learn more, join Attorney Meghan Droste on August 24, for the 60-minute webinar EEO Reprisal, Handle It, Don’t Fear It. In this the penultimate session in our Supervising Federal Employees webinar series, Meghan will discuss specific cases involving retaliation and provide you with several steps you can take to ensure you avoid retaliation. Reprisal will also be discussed along with intentional discrimination and contractor complaints during Day three of FELTG’s EEOC Law Week September 20-24.

After a couple of days, I began forgetting to worry about my imminent arrest. When I eventually told my parents, they laughed. Oh, and before Teresa C. transferred to another school a couple of years later, I became aware that her father was very much alive. Gephart@FELTG.com

And Now a Word With … FedUpward Podcaster Love Rutledge

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By Dan Gephart, August 3, 2021

It’s unanimous here at FELTG. The headquarters team and our instructors are beyond tired of hearing the hackneyed tropes about bad Federal employees running amok. That’s why we teach courses like our flagship UnCivil Servant: Holding Employees Accountable for Performance and Conduct, so that you can take direct action against the few misbehaving and poor-performing Feds who ruin the reputations of everyone else.

Federal employee Love Rutledge is also fed up with the “caricature.”

“We’re either lazy, dumb, and couldn’t find better jobs elsewhere; or we’re scheming deep-staters who plot to take down certain segments of the population,” she said. “Obviously, we’re neither. Most Federal employees work hard, serve the public and do the best they can every day.”

Love was so incensed with this mischaracterization she had to do something about it. She launched FedUpward, a podcast where Federal civil servants can find “inspiration, motivation and practical tips.” She dropped her first podcast in October 2019 and just surpassed the 100-episode mark last month. Recent podcast episodes have included interviews with FELTG President Deborah Hopkins (Performance Management and the Santos vs. NASA Ruling) and FELTG instructors Katherine Atkinson (Can My Manager Ask Me THAT When I Return to the Office), Marcus Hill (Network with Senior Executives and Work on Government’s Big Challenges) and Shana Palmieri (How Feds Can Maintain Mental Health and Help Others).

Finding free time isn’t easy for Love. She’s also a full-time Federal employee and the mother of two young children. But she took some time answer a few FELTG questions.

DG: What’s the best piece of advice for Feds you’ve learned over your 100-plus episodes?

LR: There’s rarely a challenge a Federal employee faces that hasn’t been faced by others. The more we collaborate across agency and department lines, the more efficient we can be.

DG: What is something you learned via your podcast that really surprised, saddened, or angered you?

LR: I’ve had several Feds reach out to me who’ve experienced truly toxic managers, retaliation for reporting bad behavior, and full-on discrimination. Those are the more frustrating messages I get. We cannot attract and retain talented public servants while treating folks badly.

DG: How was your work life changed by the pandemic?

LR: As a parent to two young children, the pandemic has been absolutely brutal. My husband and I are fortunate to have resources that gave us options, but few good options existed for childcare over the last year plus. Mama is TIRED. I think many Fed parents can relate to the sense of exhaustion and lack of control that we’ve faced during the COVID crisis. And we’re still facing it. For those of us with children under 12, our options for activities and childcare remain quite limited. I doubt you can find any parents who say they had a good work/life balance over the last 16 or so months.

DG: What should agencies do to improve the overall morale of their workforce? 

LR: Everyone wants to feel appreciated for what they do. Truly listening to employees to understand their concerns, supporting their growth, and providing flexibility where possibleall go a long way toward employee engagement and satisfaction.

DG: Say someone is reading about your podcast here for the first time. Why should that person listen to your podcast?

LR: People listen to my show to get first-person perspectives on current issues, to connect with Feds going through the same issues they face, and to learn about resources they might not otherwise discover. I hope your readers not only listen to the podcast at FedUpward.com or wherever they get their podcasts, but also reach out to tell me what they want to know.

In her very first episode, Love explained the reasons for launching the podcast. Besides looking for more good news about Feds, she wanted more information for younger and middle-aged Feds, and she’d like to see agencies do more to attract younger people.

“In most of the trade publications, you still see their advertisers are hearing aid companies and bath remodelers who support customers’ loss of mobility,” she said. “I’d love to see that shift and have professional organizations for federal employees support people of all ages — and not just Young Government Leaders, who provides those opportunities now.” Gephart@FELTG.com

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