Don’t Just Flag Hostile Symbols; Do Something to Stop Them

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By Dan Gephart, July 21, 2021

Residents from our cozy colonial-era town of Haddonfield, NJ, returned in droves to this year’s July 4 parade. (Last year’s parade was canceled due to COVID.) The streets were packed with enthusiastic and smiling (no masks!) residents, who watched as the Shriners drove circles in their tiny cars, a group of Mummers strutted, and the town’s oldest resident (102 years young) waved from a convertible.

The Stars and Stripes was ubiquitous. Parade-watchers held high the tiny flags handed out by the local Boy Scout troop, while larger American flags fluttered from every light pole in town.

As we walked home after the parade, I noticed our town was full of flags, and not all of them Old Glory. Flag makers reported an increase in sales during the pandemic, and we were seeing the results of it. I’m guessing it had something to do with people spending more time stuck at home.

The Rainbow Pride flag was the one we saw most. We saw a couple of Thin Blue Line flags. A Black Lives Matter flag hung from a porch. Another bright flag summoned us to celebrate summer, while another shouted “Freedom!” The one that made us laugh was giant black flag with white lower-cased letters spelling “freak.”

And on the corner a couple of blocks off the main street was a house flying the Gadsden flag. That’s the one depicting a rattlesnake with the words “Don’t Tread on Me” over a yellow background. If you’re in the Federal EEO community, you may know the Gadsden flag from the EEOC’s decision in Complainant v. US Postal Service, EEOC Appeal No. 0120141334 (June 20, 2014). Or, you probably know it from the clarification the EEOC sent out after its ruling:

The EEOC noted that while the Gadsden Flag originated in a non-racial context, it has since been “interpreted to convey racially-tinged messages in some contexts.” The EEOC cited its use by persons associated with white-supremacist groups who used the flag to drape the bodies of two police officers they had just murdered, and its display at a Connecticut fire house that was met with protests by African-American firefighters, ultimately resulting in the flag’s removal. The EEOC underscored the fact that it did not find that the Gadsden Flag in fact is a racist symbol. Instead, the EEOC found only that the complaint met the legal standard to state a claim under Title VII, and therefore should have been investigated by the USPS rather than dismissed.

With the rise of white supremacist and anti-Semitic groups, flags have taken on meanings that may not be that obvious. The Gadsden flag isn’t the only one that’s been appropriated by hate groups.

To the left is a flag based on a Benjamin Franklin cartoon published in 1754, urging the eight colonies (all New England is represented as one) to unite.

A few years ago, the Philadelphia 76ers embraced the Franklin cartoon for their NBA playoff logo, a flag of which can also be seen flying from a house on my block these days. [Sidenote to that neighbor: Are you lazy or what? That Game 7 loss to the Atlanta Hawks was nearly a month ago. Why must you keep reminding me of that disappointment?]

Meanwhile, white supremacist groups have seized on the cut snake logo, as seen by the poster that promoted the deadly “Unite the Right” rally in Charlottesville. Instead of uniting colonies, the poster proposes uniting hate groups.

During the video replays of the Insurrection at the Capitol, I saw numerous flags and symbols that I did not recognize, but later read were used routinely by white supremacist groups. Undoubtedly, those flags and symbols would create a hostile work environment if displayed in an office.

You don’t have to be a vexillologist (flag expert) to ensure a discrimination-free environment, but you do need to know the elements of a hostile workplace, which are:

1)    The conduct is unwelcome. That conduct could be words, jokes, touching or objects and pictures displayed.

2)    The conduct is based on a protected EEO category: race, color, national origin, religion, gender, disability, age, genetic information, or reprisal.

3)    The conduct is severe and/or pervasive.

If a flag heralded by a white supremacist group is displayed in your workplace, I’m pretty sure it’s going to check off all the boxes. (For a thoughtful legal analysis of a more challenging potentially hostile environment case, read FELTG President Deborah Hopkins’ Does Saying ‘All Lives Matter’ Create a Hostile Work Environment?)

The next step is up to you: It’s your responsibility to protect employees from harassing conduct.  Take action. Immediately. An example of what not to do can be found in Complainant v. United States Postal Service (Southeast Area), EEOC Appeal No. 0120132144 (Nov. 1, 2013). In that case, the EEOC reversed the agency’s final order and remanded the matter to the agency because it found that complainant had established that he was subjected to unlawful harassment based on race and the agency was liable for harassment.

In this case, the offending objects were t-shirts emblazoned with the Confederate flag worn by two white clerks. Initially, the AJ, while finding discrimination, did not find agency liability. The Commission saw it differently.

The shirts were worn about a dozen times over several months starting in August 2010. The agency took no action against the shirt-wearers until prompted to do so by a union grievance in May 2011, when one of the clerks was sent home to change. In fact, at one point in April 2011, the clerk was told there was “nothing wrong” with his shirt.

The agency’s supposed corrective step was a stand-up talk about work attire. During that talk, however, employees were never instructed not to wear or displays images of the Confederate flag.

When symbols of hate take hold in the federal workplace, there’s no room for mixed messages. Gephart@FELTG.com

Listen and Learn: How to Be an LGBTQ+ Ally in the Workplace

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By Dan Gephart, June 16, 2021

On his first day in office, President Biden made diversity and equity a key initiative, and he made it clear that he expects the Federal workplace to lead the way. So it’s no surprise then that the first week of the Pride Month this year was marked by tweets, declarations and announcements of support from leaders at more than a dozen agencies, including the FBI, and the Departments of Transportation, Housing and Urban Development, Veterans Affairs, and more.

That is a terrific start. This kind of leadership is critical. But the real work will be done onsite, in each individual workspace, team, and office.

Everyone deserves to feel valued at work, and to have the same opportunities as every other employee to further their careers. And, it should go without saying, everyone should feel safe at work. You may think this responsibility is above your pay grade, or that you have little influence on such matters. You’d be wrong. You can make a difference in creating an equitable and inclusive environment for LGBTQ+ Federal employees simply by being an ally.

How can you be an ally? Some think it means participating in marches and flying flags. But there’s so much more to it, especially in the workplace. Use this Pride Month to assess what you can do better to be an ally. We suggest your start by listening and learning.

Listen

This sounds simple, right? Yet, it’s an immensely challenging skill that has few masters. Too often, when others are sharing their experiences, we are rummaging through the backrooms of our brains to find suitable replies instead of comprehending what the person is saying. It’s estimated that 8 in 10 Americans know someone who identifies as lesbian, gay, or bisexual. But having a friend, sibling, or acquaintance in the LGBTQ+ community doesn’t make you an expert. Don’t assume you know what your colleague thinks, wants or needs.

What if you have questions? Before burdening your coworker with the responsibility of being your source for all things LGBTQ+, ask if they’re comfortable answering the question.

Your colleague may tell you his/her/their preferred pronoun. Use their preferred pronoun when addressing them directly or indirectly. This will take some adjustment on your part, especially if the individual previously went by a different pronoun. You might sometimes inadvertently use the wrong pronoun. Accidents happen. But it’s important to correct yourself before you move on.

That said, be on the lookout for individuals who deliberately misgender employees, or share an offensive joke, a slur, or misinformation. This would be the time to speak up – and where your role as an ally can make the most impact. Immediately correct the person spreading wrong or hurtful information. Inform the offending person in private why what they said is hurtful. If it continues, report it, no matter how small the problem may seem. Microaggressions and microinsults could lead to legitimate claims of discrimination or harassment. Whether they rise to that level or not, they create an unhealthy environment.

Learn

The other important thing an LGBTQ ally can do is learn more. And, fortunately, there is no shortage of websites, documentaries and books. If your agency puts on any workshops or seminars, sign up. Take part in events, not just during Pride Month, but all year long.

Here are just a some reading lists and resources (hat tips to Meghan Droste and a fellow Gephart) you may find helpful in your quest to become an ally:

And, as you probably expect me to say if you’re a regular reader of my articles, FELTG has you covered here, too. Next week – June 23 to be exact – FELTG Instructor Meghan Droste will present a two-hour virtual training event Honoring Diversity: Ensuring Equity and Inclusion for LGBTQ Individuals. On September 1, Meghan will present another two-hour virtual training Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace. Both training events will run from 1-3 pm ET.  We can also bring these courses to your agency. Contact me if you’d like to find out more about this option.

There is no secret to being an ally. Listen and learn. Stand with your colleagues in the face of discrimination and bias. And remember it’s not about you. Gephart@FELTG.com

4 Tips to Prepare for Increase in Requests for Accommodation, Telework

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By Dan Gephart, May 19, 2021

As we careen toward the eventual return to workplace normalcy, it’s a good time to take stock of where we are as a workforce after more than a year of pandemic-enforced remote work.

Although not geared to the federal workforce, a recent survey of US- and UK-based employers conducted by Arizona State University and the Rockefeller Foundation provides a great snapshot.

Let’s start with the good news. Most employers say that employee engagement and productivity are up. Even better, 44 percent of employers surveyed say morale has risen as well.

The bad news? Employers are seriously concerned about mental health. Half of those surveyed have increased the use of available company resources related to mental health since the pandemic began.

I surmise three points from the survey:

  1. Telework was more successful than many thought it would be.
  2. There will be a significant increase in reasonable accommodation requests by employees dealing with mental health challenges, and many of those will likely be for anxiety disorders.
  3. Many of those accommodation requests will be for telework.

As the moderator for many FELTG webinars and virtual training events, I relay your questions to our presenters. So I know that few things cause more anxiety for federal supervisors as reasonable accommodations and, more specifically, requests for telework. But here’s the thing: If you’re too worried to address employee anxieties and other mental health issues, then that increase in engagement and morale is going to sink faster than an Elon Musk comedy skit on Saturday Night Live. So I’m offering four tips for you to keep in mind for the upcoming months:

  1. Don’t delay the interactive process, and take the right approach. Let me repeat: Do not delay. I can’t tell you how to feel, but if you’re seriously trying to avoid this process, then you may be in the wrong position. The law requires prompt action. This is the stuff that being a federal supervisor is made of. The employee has the best information about his/her/their functional limitations. You, presumably, have the best knowledge about the work. Go into the process with an open mind and work with the employee to find the most effective accommodation.
  2. Don’t be afraid to ask for medical documentation, and ask for the right information. Agencies are entitled to medical documentation as part of the reasonable accommodation process. But that information must be related to determining the existence of a disability and the necessity for an accommodation. Anything beyond that is not necessary. Remember there are two reasons you may want medical documentation. Yes, you want to substantiate the need for accommodation. But the medical documentation can also help you understand the functional limitations. Keep in mind that supervisors don’t generally handle medical documentation, so check your agency’s policy on who is responsible for these requests.
  3. Don’t automatically rule out telework, and ensure there is accountability. Look, skepticism about telework may be warranted at times, but it’s about as fashionable as socks and sandals on a middle-aged man. Remember the study at the top of this story? Productivity is up while employees work en masse from home. Depending on the job, many people can work from home. Maybe the problem is you? Out of sight should not mean out of mind. Find the best way to monitor the work and stay engaged with the employee. And if performance slips, hold the employee accountable using the FELTG tools, just as you would if the employee worked in a cubicle outside your office.
  4. Don’t get frustrated, and get some training. As always, FELTG has multiple opportunities for you to get up to speed on these issues. Here are a few:

Keep an eye out for other upcoming FELTG webinars and virtual training events. Gephart@FELTG.com

Opening Up the Damns About Supervisor Rules and Return to Physical Workplace

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By Dan Gephart, April 20, 2021

I was moderating one of the recent webinars in our Supervisory Webinar Series (there are still a lot of great sessions left and you can still register) when FELTG President Deborah Hopkins was discussing the Five Elements of Discipline, specifically establishing legal and valid rules.

“Legally, a supervisor can establish a rule that you can’t say damn in the workplace,” Deb explained.

It’s a good thing I was on mute. If not, attendees would’ve heard me say “Damn right!,” thereby disrupting the presentation, while also breaking the example rule that Deb had just described. Why the overreaction? That “no damn” rule is the first one I would decree as a supervisor. It’s not that I’m prudish. I don’t curse much myself, but it’s not an issue for me if others do, as long as it’s not excessive.

During college, I spent  many hours working in the warehouse of a freight shipping company. I don’t want to name the specific company, other than it’s named after a color and it rhymes with “hello.”

I was promoted from loading the trucks to something called Swak Clerk. I and another young man would scan the boxes before they made their way down the conveyor belt, into a loader’s pile and onto a truck. I was eager to meet the performance standards set for me. Yet, I found it difficult because every few minutes, I’d hear someone scream my name in a very urgent manner.

I’d stop scanning and holler: “What?” This would eventually lead to someone else saying: “What?” After further back-and-forth yelling over loud warehouse noises, I’d realize that nobody called my name. A truck loader had only screamed “Damn!”

These continuous interruptions made it hard to keep up with the performance standards. Things were much worse for my fellow Swak Clerk, who dealt with the exact same problem. His name was Buck.

You can understand why I’d embrace the “no damn” rule. But these kinds of rules have been absent over the last dozen or so months. During that time, employees have worn sweatpants, worked in bed, eaten whenever and wherever they wanted, yelled at their kids, and walked their new dogs during the workday. They’ve done a lot of things they’re not going to be able to do once they return to the physical workplace. Readjusting to unique workplace rules is going to be a little challenging.

The concept of supervisor’s rules is such a basic principle, there isn’t a foundational case that specifically addresses whether small rules set by supervisors are OK.

There were a few cases where supervisor’s rules were questioned, but those cases were adjudicated for completely different reasons. (Safe must be locked at all times when not in use – Chavez v. DVA, 120 MSPR 285 (2013)) (Leave office lights on during work hours – Mogil v. Dep’t of Veterans Affairs, No. 2018-1673 (Fed. Cir. May 1, 2019)) (Men must wear neutral pants but women may wear pants of any color – Shedd v. FAA, EEOC No. 0120073132 (2007)).

The general authority to run the workplace the way a supervisor sees fit comes from 5 USC 301-302:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. [Emphasis added.]

If you’re a fellow “Dan” or “Buck,” hard of hearing, or someone who hates mild profanity and you’re looking for more guidance, you should read Pinegar v. FEC, 2007 MSPB 140.

In that case, a GS-12 attorney with a discipline-free record was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone).

The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal, which the MSPB upheld.

For more guidance on rules and everything else involving accountability, register now for UnCivil Servant: Holding Employees Accountable for Performance and Conduct held over two half-days on May 19 and 20. [If you have new supervisors, this course fulfills OPM’s mandatory training requirements for new supervisors. Also, registrants for both days will receive a copy of the textbook UnCivil Servant: Holding Federal Employees Accountable for Performance and Conduct, 5th Ed., by William Wiley and Deborah Hopkins.]

Basically, if your rule makes sense and it doesn’t run afoul of any law, you’re good. But in the coming months, as your employees reacclimate themselves to their old workspaces, you might want to ease up a little on any rules that are more onerous than useful. Gephart@FELTG.com

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.

A Future of Dramatic Workplace Change is in the Cards

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By Dan Gephart, March 16, 2021

A few years back, I read that a Topps 1973 Mike Schmidt rookie baseball card in mint condition could fetch $10,000. Like me, my Schmidt rookie card didn’t quite make it out of childhood in mint condition. Still, I optimistically took the corner-frayed, slightly torn, decidedly non-glossy card to a sports memorabilia collector. When the collector told me the card was in fair condition, I took that as promising. Then he explained that “fair” is the lowest grade he gives to baseball cards, and, by the way, my card barely qualified for that grade. Forget $10,000. I’d be lucky if my card could cover a large cold brew and a scone at Starbucks.

Starting this year, I could purchase a pack of the NBA’s new Top Shots, where a $15 investment could land me a Lebron James card, currently valued at $208,000. These cards are guaranteed to always be in mint condition because they will never be physically touched by human hands. These investments won’t be devalued by card flipping or bike spoke-propelling.

You see, the NBA Tops Shots are crypto-collectibles purchased as a non-fungible token (NFT) created through blockchain technology.

If you’re as confused as I am by what the heck that last sentence means, then you better buckle up. If sports cards can make that kind of sudden leap in technology, imagine what’s in store for the workplace. Numerous workplace experts have already wondered about that. They predict numerous dramatic changes in the workplace in the future.

But not all change will be technology-fueled. Job market changes could lead to major reorganizations, experts predict. Some change could result from the very real potential of future health crises. Look at how the workplace changed during the current pandemic.

Years of telework initiatives, COOP plans, and Snowmaggedons failed to move the needle on remote work. But when the virus hit pandemic levels last year, most Federal employees immediately started working from home. Work travel, except when absolutely essential, screeched to a halt. Crowded meeting rooms were replaced by Zoom, Microsoft Teams and Webex.

And, as the FELTG Nation knows very well, change could be driven by law and policy. It’s happening now, as agencies adjust to the Biden Administration’s reversal of the previous administration’s federal workplace initiatives. As FELTG President Deb Hopkins said, the whiplash is real.

To protect your organization against constant whiplash, workplace experts say that you need employees with creativity and critical thinking skills, and a continuous learning environment. If you take care of hiring the right employees, we’ll be here to provide the continuous learning. In the next couple of months, we are offering several training events to help manage change, both current and future.

Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace on Wednesday, April 7. Talk about a sharp shift. Just a few months ago, diversity training was frowned upon. However, the new administration has made it clear that training on diversity and inclusion is a key piece in advancing racial equity and strengthening workplace protections based on sexual orientation and gender identity. In this two-hour virtual training, FELTG Instructor Meghan Droste, attorney at law, will explain what microaggressions look like in their various forms — microinsults, microassaults, and microinvalidations.She will share an implicit bias test, explain its impact, and provide examples. She will also review EEO law so you can determine when bias or microaggression rises to the level of discrimination.

Biden Executive Orders, OPM Guidance and an Update on the Status of Civil Service on Thursday, April 8. FELTG was the first out of the gate with comprehensive training events on the new president’s Executive Orders impacting the Federal workplace. If you attended any of those training events, then you have a huge step up on your peers. FELTG President Deborah Hopkins and Instructor Ann Boehm will dive into the language of recent OPM guidance, and interpret what it means for your day-to-day operations. They will also share all of the latest information on Federal employment law-related news.

What to Expect When You’re Expecting a New Board on Tuesday, April 27. This 75-minute session kicks off the FELTG Forum 2021: Emerging Issues in Federal Employment Law. We have a glimmer of hope that a new Board could soon be in place at the MSPB, and that’s the kind of dramatic change that we all would applaud. What does this mean for federal HR professionals? What does this mean for all those agencies and employees whose cases have been piling up unread at the board? FELTG President Deborah Hopkins will give an overview of what we can expect in the upcoming months from a new MSPB, and where the board will stand on critical issues like performance and conduct accountability.

Legal Update: Recent Developments in Federal Employment Law, Part I (MSPB, EEOC, Federal Circuit) on Thursday, April 29 and Legal Update: Recent Developments in Federal Employment Law, Part II (FLRA, FSIP) on Friday April 30. These two sessions are also part of the FELTG Forum 2021: Emerging Issues in Federal Employment Law and will be presented by FELTG Instructors Ann Boehm and Joseph Schimansky.

Not a One-Way Street: How OIGs and Agencies Can Successfully Work Together on Thursday, June 24. Navigating all of this change requires leadership and coordination. And there is a resource right at your agency that can help with both. Scott Boehm brings his 32 years of leadership experience and nearly 20 years of experience in Offices of Inspectors General to this hourlong webinar. If you work in your agency’s OIG, you will learn what you can do to foster this coordination. And if you’re an attorney, HR professional, EEO specialist or supervisor, you’ll learn how the tap your OIG’s knowledge and resources.

Visit the FELTG website for information on these and other training events. And if you’d like to bring these trainings to your agency virtually, contact me. Unlike my Mike Schmidt rookie card, FELTG training will retain its value. Gephart@FELTG.com

Transition Talk: Be Honest and Positive, and Offer Training to Appointees

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By Dan Gephart, March 2, 2021

This is the final article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new Administration. See our previous articles in the series:

 

Ann Boehm experienced a number of presidential transitions during her 26-year Federal career. Her most recent transition was in 2017. Ann was working for the U.S. Marshals Service, where more than 90 presidentially appointed marshals were potentially entering on duty.

“During the 2017 transition, we decided to mandate a training course for the new U.S. Marshals,” Ann said. “The training included procurement, appropriations, and personnel law, as well as other things regarding the day-to-day running of the U.S. Marshals Service. The Marshals greatly appreciated the training. Presidential appointees are busy people, but agencies committed to providing them with effective training can ease the transition for everyone involved.”

DG: What is the best advice you have ever given — or would like to have given — to a presidential appointee?

AB: I think it is important for presidential appointees to listen to the career Federal employees. Sometimes the appointees undervalue the career feds. They also may be coming from the private sector or even state or local government, and they need to get assistance from the career employees on how procurement, appropriations, and personnel (from hiring to firing), among other things, all work in the Federal government.

DG: What is your advice for FELTG readers working with new presidential appointees?

AB: The most important thing to do when working with new presidential appointees is to maintain a positive attitude. Most human beings do not like change, and most presidential appointees come into an agency looking to change things. Career Federal employees can sometimes be overwhelmed by appointees coming in and wanting to alter the way the agency runs.

It’s important to understand the appointees’ motivation, and also to educate them if an idea is unlikely to succeed. In my experience, the appointees want to succeed, and a logical argument can go a long way toward helping them understand agency culture and what is likely to be the best way to further the agency’s mission.

DG: What is the most important skill necessary to survive and thrive in a new administration?

AB: I think the most important skills are flexibility and honesty. Do not be afraid of new ideas, but be prepared to explain when things are not working.

Ann will be one of the presenters at the upcoming MSPB Law Week, FLRA Law Week and the FELTG Forum 2021: Emerging Issues in Federal Employment Law. If you’re interested in bringing Ann Boehm to your agency for training, email Gephart@FELTG.com.

Pop Goes the Mountweazel: Find the Roadblocks to Swift, Effective Action

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By Dan Gephart, February 10, 2021

Mountweazel. I just love this word. I discovered it last week as I was reading Liar’s Dictionary, a new novel by Eley Williams. Neither a steep scalable landmass nor a rat-sized mammal, a mountweazel is a bogus entry inserted into a dictionary, encyclopedia or other reference work as a trap to catch future copyright infringers.

About midway through Williams’ novel, the protagonist Mallory is charged with finding the mountweazels left behind when the fictional reference book was first published more than a century ago. All of the fake words must be found before the publisher posts the reference book online. The problem is Mallory knows not where the mountweazels are nor even how many there are. (OK, I get it, a John LeCarre spy thriller this most certainly is not.)

Picture Mallory sludging through thousands of dictionary entries to find the fake words. It gives me a headache just thinking about it, and I love words. When overused, used incorrectly, or improperly communicated (all were the case in the novel), mountweazels make it harder to accomplish the mission, which in Mallory’s case was digitizing an accurate reference book.

So here’s my question: What mountweazels are keeping your agency from meeting its mission? Not fake words, but unnecessary or improperly communicated procedures.  When it comes to discipline and performance, to paraphrase a certain insurance commercial, we’ve seen a mountweazel or two. (Bum ba dum bum bum bum bum.)

Back in 2017, FELTG Past President Bill Wiley was tired of hearing from supervisors who took useless actions like Letters of Admonishments and Letters of Caution to address wayward employees. Supervisors would take these actions because they were easy and, they assumed, if the same situation arose again, they could say they’ve taken prior disciplinary action. But guess what? These actions are not discipline as defined by case law. The action was a temporary Band-aid that did nothing to address the root of the issue, and, more often than not, the suspect behavior would continue unabated. Even worse, these empty actions are actually grievable, putting the supervisor and the agency on the defensive.

So Bill created the “yellow donut.” If you’ve taken part in FELTG’s UnCivil Servant training over the last couple of years, then you’ve seen the graphic. It’s the yellow donut that looks more like a three-tiered bullseye. (Seriously, are you going to pay attention to a donut or a bullseye?) The outer edge is the illegal stuff that you should never do, and you most likely don’t. (Please tell me you don’t.) The inner red part is the good stuff that FELTG teaches, which is the legal minimum, things you must do.

The largest tier in between the inner and outer is the yellow part. That’s the mountweazels of donuts of unnecessary actions, keeping you and your agency from meeting the mission. These actions are perfectly legal, but not worth using. Each unnecessary action is a barrier to a swift, effective, and legally sufficient conduct or performance-based action. Keep your stumbling blocks to a minimum.

If you’re vegan or on a New Year’s Resolution Whole 30 kick, you might eschew the donut for FELTG Instructor Ann Boehm’s approach. During her federal career, Ann has also seen far too many unnecessary actions taking place. Why, why, why Ann would ask. The reason, she has been told is: “That’s what HR told us to do.” Ann spelled this out in her Good News column in the January 2020 newsletter, when she introduced readers to The Office of Folklore, know more affectionately as OOF! That newsletter article included a checklist, which empowers supervisors to demonstrate to the folklorists there is a better and more direct way to handle the situation. (Print the story and cut out the checklist now. I’ll wait.)

I hope you are part of the UnCivil Servant: Holding Employees Accountable for Performance and Conduct virtual training we are holding starting today. If not, then put a hold on these dates —  May 19-20. That’s when we’ll be holding the class again. Or you can bring that course directly to your agency (in person or virtually). Email me (Gephart@FELTG.com) and we can discuss.

If you’ve attended UnCivil Servant previously, join us for UnCivil Servant – Next Level on March 11, where you’ll be able to put the tools you learned in the original class to the test with some challenging and realistic scenarios.

These courses were designed to help you determine the minimum steps to take effective and legally defensible performance and conduct actions. We’re not doing this to make your job easier, although it will.  The more unnecessary steps you take when addressing discipline and performance problems, the harder it gets, the longer it takes, the more likely you are to make a mistake – and the further you get away from mission. Gephart@FELTG.com

Joe Schimansky: Add Value, Listen, and Set the Record Straight

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By Dan Gephart, February 2, 2021

This is the third article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new administration. See our previous article in the series:

 

Joe Schimansky (pictured here), former executive director of the Federal Service Impasses Panel, still regrets how he handled a long-ago meeting with a newly confirmed political appointee.

Joe was asked a question about the FSIP’s processes. After a purposely succinct response, the appointee accused Joe of answering with a variation of “because that’s the way we always do it.”

“To be clear,” Joe explained. “That’s not what I said, but how she interpreted what I said. At that point, I should have responded by indicating that the FSIP’s processes have evolved over many years for sound practical reasons.”

In deference to the appointee’s position, Joe did not respond. He learned the hard way that it often falls on career staff to set the record straight.

“Political appointees often come into their first meetings with their newly acquired professional staffs after having been told how badly the particular organizations they are now responsible for leading were run by their politically appointed predecessors,” he said.

During one transition, a higher-up in a federal sector union had met with President Clinton’s new FSIP chairman and “spread poorly informed allegations” about how long it took the previous administration to resolve impasses.

“When I met with my new boss, her head had already been filled with horror stories about how incompetent her newly inherited staff was at fulfilling its mission in a timely manner,” Joe said. “I was fortunate to have a new boss who had been a career fed and understood the dynamics of transitions.”

Joe was given time to research the allegations and found a legitimate explanation for all of the delays. But you’re not always going to work with appointees with Federal backgrounds. Joe offered some other worthwhile advice.

DG: What is your best advice for FELTG readers working with new presidential appointees?

JS: When dealing with new presidential appointees, the best advice I can think of is to strive to add value to their lived work experience. How you do that usually depends on the appointee’s understanding of the mission of your agency and the portion of that mission your particular part of the organization is responsible for. The typical way to assess this is by preparing detailed briefing materials that cover the main areas of your professional responsibilities and to schedule a reasonable time period to present the material.

Always remember you are engaging in a dialogue with the appointee and not merely presenting a stale lecture. Engaging in a dialogue allows the appointee to ask questions that will inform you of what the appointee understands already and what they may not grasp about the limits of their authority.

In this regard, you should be attentive to how the briefing is being perceived. I recall a briefing that I and the rest of my staff prepared for a group of newly appointed Impasses Panel members. It became clear early on that the material was far too detailed for the audience — part-time presidential appointees, most of whom had very little knowledge of how the Federal sector impasse resolution process works. The staff quickly perceived that the presidential appointees’ eyes were glazing over as we dug deeper and deeper into the FSIP process. The best response in this circumstance was to shorten the length of the briefing and to highlight only the most important points you want them to come away with. Opportunities to “teach them up” would be plentiful over the next four years.

DG: What is the most important skill necessary to survive and thrive in a new administration?

JS: The first skill that popped into my head was “active listening” defined as “where you make a conscious effort to hear not only the words that another person is saying but, more importantly, the complete message being communicated.” To do this, you must pay attention to the other person very carefully, particularly to his or her body language and non-verbal cues. I would suggest that most career management officials meeting with their newly appointed political bosses have reached that higher level in their organizations because they were already accomplished active listeners, but I’m sure there are exceptions. Through active listening, a career civil servant is more likely to add value to a political appointee’s lived work experience. If you do that, you can survive and thrive in a new administration.

Joe Schimansky will also be one of the presenters at FLRA Law Week. Joe is available to provide training to your agency on topics such as employee accountability, MSPB and EEO law, discipline, and much more. If you’re interested in bringing Joe Schimansky to your agency for training, email Gephart@FELTG.com

Bob Woods Explains Types of Political Appointees, Offers Advice

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By Dan Gephart, January 11, 2021

For far too long, the American public has taken for granted the peaceful transfer of power. As a new Administration prepares to take office a week from today, all eyes, even more so than usual, will be on the outgoing and incoming presidents. But the important work for an effective transfer of power has already started – and will continue to take place after President-elect Joseph Biden finishes his oath and releases his hand from a family heirloom Bible.

The transfer involves the close coordination of numerous agencies who are about to welcome thousands of new presidentially appointed employees. The majority of those positions will be filled quickly and without the need for Senate confirmation, and they will be doing the policy and leadership jobs that are critical to mission success. This transition is happening as political bi-partisanship is at its nadir. Oh, and lest we forget (not that we could if we tried) that it’s occurring in the middle of a pandemic.

FELTG understands the challenges and changes that will be impacting your job. We’ve developed several programs that we’ll be presenting over the next few months to help you navigate the transition. The day after the Inauguration (January 21) we’ll be presenting the first of three webinars in our Toolkit for a New Administration: Essential Skills and Knowledge for Federal Supervisors, Managers, and Leaders series. FELTG President Deborah Hopkins will deliver the first 60-minute training Federal Employment Law: The Current Landscape. It’ll be followed by training on Navigating Change Through Effective Management and Communication (January 28) and Effective Performance Under Stress (February 4). Register for one, two, or all three webinars. Keep an eye on the webinar and virtual training pages on FELTG’s website for the latest on our transition-related programming.

Faculty’s Faculty Staff  Lounge is filled with instructors who are engaging, smart, and experienced. And for many of our instructors, their experience includes working through more than a few Administrative transitions. Several of these instructors have offered to share their advice and guidance for a series of articles we’re calling Transition Talk.

For this first article in the Transition Talk series, we chat with FELTG Instructor Bob Woods (pictured at left). Bob retired from the Air Force in 1998 after more than 20 years of active duty. His distinguished Federal civilian career came to an end recently when he retired from his position as Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) for the Department of the Navy last year.

In all of these years as a Fed, Bob has worked with a good number of Presidential appointees. He noted that there are actually four types of Presidential appointments. When it comes to interactions with appointees, “I think it’s important to know what type you’re dealing with,” he said.

DG: Can you explain the difference between the types of appointments?

BW: Yes, they are:

1 – Presidential appointments requiring Senate confirmation (aka PAS officials):  These officials fill the highest-level positions in any Department or Agency (e.g. the Secretaries, Under Secretaries, Assistant Secretaries and General Counsel, etc.).  Typically, these officials are introduced to their Department/Agency roles by their career Principal Deputies (or equivalent), most of whom were either serving as the Acting official or “performing the duties” of the position during the transition period.  These roles are governed by the U.S. Vacancies Act, which provides authorities and limitations. In past administrations, Departments/Agencies outgoing PAS leadership direct/orchestrate transition books and orientation briefings/tours for their successors.

Depending on your position in the organization, you may be called upon to prepare some of these materials and to present the same. In my experience, incoming PAS officials often have little/no experience working with Federal employees and often have significant preconceived notions (some positive, some negative). If they have no Federal experience, they will also often be perplexed by our highly regulated work, contracting and ethics rules. If you’re advising or assisting one of these officials, you should remain alert to this and try to explain to the official that Federal employees are (or should be) trained to be apolitical in their work efforts. Assure them that your role is to guide them and support their Administration’s agenda while closely adhering to these myriad rules/regulations.  It’s critically important to quickly build trust.

2 – Presidential appointments NOT requiring Senate confirmation:  The same observations and advice provided in 1 above applies to transitioning these officials as well.

3 – Non-Career Senior Executive Service (SES). These positions are limited to no more than 10 percent of the total number of SES positions authorized. They can be filled by career SES or non-career SES. A career SES encumbering a non-career position can be displaced by a Presidential appointee and agencies are obligated to work to place these career SES.  Many of those appointed to non-career SES have prior Federal government service either as a Senior Executive or other level. These SES appointees should be treated like other new SES and given the support normally accorded to any new SES.  Obviously, if they have no prior Federal experience, the advice in #1 above should apply.

4  – Confidential or Policymaking Positions (Schedule C (SC)): Typically, these appointees are appointed into various GS (or equivalent) positions. These positions are often created on an ad hoc basis and may be geared to the qualifications of the individual appointee. These appointees are supposed to be assigned to and supervised by a PAS official, but that may be delegated to a non-career SES reporting to a PAS official. Often, these employees have little or no prior Federal experience and may have no subject-matter expertise for the staff/work unit to which they are appointed. These employees should be welcomed and provided orientation like any new similarly-graded employee.  If the employee has little or no subject matter expertise, the supervisor should explain that the employee has been given a great opportunity to learn about the inner-workings of the Department and the specific subject(s) of their assigned work unit.

The supervisor should assess their skills and create a plan to maximize the use of those skills and to provide them with on-the-job training.  These employees serve essentially at the pleasure of their PAS supervisor and/or the Head of the Agency but removals and reassignments are typically coordinated/controlled with the White House personnel office.

DG: What is the best advice you have ever given — or would like to have given — to a presidential appointee?

BW: Trust in the expertise of their career SES and non-SES staff and pay close attention to the rules/regulations that we have all learned to live by. Once this advice was given, it was incumbent upon the career staff to prove their expertise and their willingness to support the appointee and his/her agenda moving forward.

DG: What is the most important skill necessary to survive and thrive in a new administration?

BW: Actually, the same skills that help you survive and thrive in any organization. High on the list are communication  (including listening skills), interpersonal skills, leadership and time management. Especially in the early months, it’s imperative to be flexible, available, and prompt.

For more guidance, Bob suggests the following:

Bob Woods will present the webinar Why, How, and When to Avoid Whistleblower Reprisal on February 25, 2021. He will also be presenting during the virtual trainings EEOC Law Week and MSPB Law Week, as well as our second annual Emerging Issues in Federal Employment Law virtual conference. If you’re interested in bringing Bob Woods to your agency for training, email Gephart@FELTG.com