Answering Questions on the New PIP Requirement, Post-Santos

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By Deborah Hopkins, April 27, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Golden Doodle Who Wouldn’t Nuzzle: A Service Dog, or Not?

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By Deborah Hopkins, April 20, 2021

While preparing the materials for an upcoming training session Ricky Rowe and I are presenting at FELTG’s annual Emerging Issues in Federal Employment Law virtual forum, I came across a case that I thought prudent to share – especially because, as return to work orders are issued in the coming months, agencies are likely to see an uptick in requests for service animals and emotional support animals in the workplace.

In a recent case at the Department of Veterans Affairs, the complainant suffered from PTSD, depression, anxiety, and panic attacks. Because of her medical conditions, she requested an accommodation to bring her trained service dog, a golden doodle, to work. She informed the agency that her dog was scent-trained to recognize chemical shifts in her body when she was escalating into anxiety or panic attacks. The dog was trained to alert and calm her before she reached the panic stage. The complainant explained to agency management that her dog might bark in the process of alerting her to her escalating symptoms, as that was the dog’s alert mechanism.

The agency approved accommodation for a 30-day trial. During a meeting shortly thereafter, the dog repeatedly barked and was disruptive for more than 30 minutes. Because of the disruption,  management began considering removing the interim accommodation, but did not take action.

The dog became even more disruptive in a subsequent meeting. According to agency management, the dog appeared impossible to handle. During the meeting, it continually barked, and jumped on the complainant multiple times, and she was unable to calm it down.

The complainant explained the dog’s behavior was an alert to her oncoming anxiety attacks. She said that the dog was trained to stand in front of her, put her paws on her shoulders and nuzzle her to calm her down. Agency management’s account of the events was that the dog was not nuzzling the complainant, but jumping on her and others in the workplace, and was uncontrollable.

As a result, the agency terminated the interim accommodation, stating that the dog was too disruptive and impossible to handle in the office. The agency invited the complainant to discuss alternative accommodations, including liberal use of leave when she was experiencing symptoms, but she maintained that other than having her service dog, there was no other useful accommodation.

The agency denied her request to keep the dog in the workplace, so she filed a complaint and the FAD found for the agency. On appeal, EEOC looked at the facts and said the agency was not obligated to allow the service dog in the workplace because the complainant “failed to provide evidence to adequately establish the need for the presence of her dog in order to assist her in performing [her] essential functions.”  EEOC also said they “cannot reasonably conclude that the Agency’s decision to terminate its trial approval constitutes an unlawful failure to accommodate.” Kathie N. v. VA, EEOC No. 2019003312 (Sep. 22, 2020).

So remember, if an employee wants to bring a service animal into the workplace, having a disability is not enough. The employee must establish the need for the specific use or presence of the service animal as accommodation, and that no other accommodation would be effective. For more on this, join us for the session Barking Up the Wrong Tree? Service and Therapy Animals in the Workspace, part of Emerging Issues in Federal Employment Law, April 28. Hopkins@FELTG.com

Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs

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By Deborah Hopkins, March 16, 2021

For the past 20+ years, we have taught a principle in performance cases that has been around since the beginning of the Civil Service Reform Act: An agency does not need to justify putting an employee on a performance demonstration period, what we at FELTG now refer to as a DP, formerly known as a PIP. In teaching that well-established principle, we relied on the statute (5 U.S.C. 4302-4303), relevant OPM regulations, and a number of foundational MSPB cases, such as  Wilson v. Navy, 24 M.S.P.R. 583 (1984); Wright v. Labor, 82 M.S.P.R. 186 (1999); and Clifford v. USDA, 50 M.S.P.R. 232 (1991).

Imagine our surprise last week when the Federal Circuit issued a decision that said an agency must have substantial evidence that the employee was performing poorly BEFORE it is allowed to put an employee on a PIP. Santos v. NASA, No. 2019-2345 (Fed. Cir. Mar. 11, 2021).

Not long after beginning work for a new supervisor, the appellant (Santos) was placed on a 45-day PIP, and given 11 deliverable assignments. His supervisor met with him to discuss his progress and give him feedback on his work product. The supervisor ultimately determined that Santos’s performance on the deliverables was unsatisfactory, so she proposed removal for unacceptable performance, and the deciding official concurred in the penalty.

Santos appealed and claimed, among other things, that he was mistreated because of his military service, and that work he did not perform while he was on military leave was unfairly used to assess his performance. Part of his appeal included a claim that he should never have been put on a PIP in the first place, something the Board AJ did not address because the matter was well-settled in  MSPB case law: “[A]n agency is not required to prove that an appellant was performing unacceptably prior to the PIP.” Wright v. Labor, 82 M.S.P.R. 186 (1999). On review of the Board’s case, the Federal Circuit said:

The Board has held that … an agency [is not required] to prove that an employee was performing unacceptably prior to the PIP in order to justify a post-PIP removal. See Wilson [supra] … (finding “no statutory or regulatory basis” to require an agency to establish appellant’s unsatisfactory performance prior to the PIP1). The Board has consistently applied this interpretation to PIP removals.

Yes, this is as old as time, in our business. But here’s where things change:

We have not directly addressed the question of whether, when an agency predicates removal on an employee’s failure to satisfy obligations imposed by a PIP and that removal is challenged, the agency must justify imposition of a PIP in the first instance under 5 U.S.C. § 4302, though we have discussed the general relevance of pre-PIP performance to a PIP removal. See Harris v. Sec. & Exch. Comm’n, 972 F.3d 1307, 1316–17 (Fed. Cir. 2020). Today we confirm that the statute’s plain language demonstrates that an agency must justify institution of a PIP when an employee challenges a PIP-based removal. [bold added]

The Federal Circuit arrives at this by focusing on the 5 U.S.C. § 4302(c)(6) requirement that agencies remove, reassign or demote employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. That opportunity period is the DP/PIP. That’s not new. But then:

To “continue to have unacceptable performance” during the PIP, as the statutory text requires, an employee must have displayed unacceptable performance prior to the PIP. Under the plain meaning of the statute, then, an agency must defend a challenged removal by establishing that the employee had unacceptable performance before the PIP and “continue[d] to” do so during the PIP. [bold added]

Santos also relies on discussion in the notice of proposed rulemaking for OPM’s recently amended regulation at 5 C.F.R. § 432.104, which says agencies are not relieved “of the responsibility to demonstrate that an employee was performing unacceptably – which per statute covers the period both prior to and during a formal opportunity period – before initiating an adverse action under chapter 43.” More from the court:

Confirming an agency’s obligation to justify initiation of a PIP where the PIP leads to removal is particularly appropriate, moreover, in situations resembling Santos’s, where an employee alleges that both the PIP and the removal based on the PIP were in retaliation for protected conduct. Otherwise, an agency could establish a PIP in direct retaliation for protected conduct and set up unreasonable expectations in the PIP in the hopes of predicating removal on them without ever being held accountable for the original retaliatory conduct. Indeed, these are the circumstances in which the issue of pre-PIP performance would be most relevant.

We used to teach that as long as an agency could articulate the reason for poor performance, they could put an employee on a PIP, and the employee could not challenge the placement on a PIP. So, where does that leave us, post-Santos?

What’s New:

  • Agencies must have substantial evidence of poor performance in order to justify putting an employee on a PIP.
  • The decision about how to justify the PIP is up to the agency, so documentation of the reason(s) the supervisor begins the PIP should suffice. That’s something we at FELTG have always taught supervisors to do, in case they ended up defending against a reprisal complaint at some point in the future. But a big question lingers: is that enough?
  • The Federal Circuit does not prescribe any particular evidentiary showing with respect to the employee’s pre-PIP performance, but the emphasis is on continued poor performance. So how long is long enough, before implementing a PIP?
  • The burden is on the employee to prove that the motive for imposing the PIP was discriminatory.

What’s Still the Same:

  • “[A]n employee may not seek review of the decision to implement a PIP at the time it is instituted, either at the Board or otherwise.”
  • The institution of the PIP satisfies the notice component of 5 U.S.C. 4303.

Go ahead and absorb that. It changes 40-plus years of precedent. It’s completely doable, and we’ll explain exactly how to do so during MSPB Law Week later this month, or on May 11 at 11 am ET when we present Justifying Your PIP? What the Precedent-Breaking Fed Circuit Decision Means.

And before I go, let me just say this: some of the facts in this case don’t look good for the agency – the actual administration of the PIP was fine, but the proximity of certain management actions to Santos’s military service should be scrutinized. The Federal Circuit remanded the case back for a Board determination about whether Santos was the victim of reprisal under USERRA, so we don’t have an answer on that yet. But regardless of the outcome, we appreciate his service. Hopkins@FELTG.com

What Do You Charge When Someone Buys Marijuana on Duty, in Uniform?

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By Deborah Hopkins, March 16, 2021

One of the topics we spend an entire day discussing during FELTG’s MSPB Law Week (next offered virtually March 29 – April 2) is disciplinary charges. Poorly drafted charges too often cause agencies to lose cases that they otherwise should easily win, because there’s no problem with the evidence.

Charge drafting is a highly technical area of the law, and a small mistake can often cost an agency an entire case. Sometimes you get lucky, but why leave it to luck when you don’t have to?

As FELTG has taught for more than 20 years, an agency must prove every word in a charge in order for the charge, and corresponding discipline, to be upheld. So imagine the flutter of panic I felt when a longtime FELTG reader sent me a recent Federal Circuit case, with the charge from the case as the subject line:

“Unacceptable Conduct/Purchase and/or Possession of an Illegal Drug While on the Clock and in Uniform.”

Yikes. There are a few things that make me nervous about this charge, including:

  1. Multiple slashes – punctuation marks are almost always a no-no
  2. The words “and” and “or” – conjunctives are dangerous
  3. Too many descriptive terms – terms such as “while on the clock” and “in uniform,” can be difficult to prove

Before we get into why this charge makes me nervous, allow me to provide a summary of the facts in the case, Holmes v. USPS, No. 2019-1973 (Fed. Cir. Feb. 8, 2021).

  • During an OIG investigation, the appellant, named Holmes, was caught on video “engaged in alleged narcotics transactions with Mr. Baxter [another USPS employee] while on duty.”
  • Baxter later admitted to selling marijuana from his USPS vehicle.
  • Six other employees who were also observed in the surveillance video admitted to purchasing marijuana from Baxter.
  • Holmes initially denied purchasing marijuana from Baxter while on duty, despite video surveillance showing two separate instances where Holmes appeared to give money to Baxter in exchange for some kind of substance that looked like a “rolled cigar,” and turned out to be marijuana.
  • Holmes received a notice of proposed removal with the above-mentioned charge.
  • In his oral response, Holmes told the Deciding Official that he was “so embarrassed,” “really wanted to apologize,” and that he “made this little mistake.” The agency removed him, and he appealed his removal.
  • The Federal Circuit ultimately affirmed the removal.

There’s nothing earth-shattering in this decision (though you might be interested to know that five of the other employees who were removed for the same misconduct took their removals to arbitration, and the removals were mitigated to suspensions), but there are some lessons to learn from the charge. Next time around, the agency might not get so lucky with a detailed charge.

Let’s look at similarly drafted charges, that went the other way for agencies.

Slashes and Punctuation Marks

The case: Bennett v. DVA, CH-0752-15-0367-I-1 (2016)(NP) 

The charge: “Disrespectful, intimidating language toward supervisor/Conduct unbecoming a Federal employee.”

The outcome: Because of the way the charge was drafted, the MSPB merged the “conduct unbecoming” with the “disrespectful, intimidating language” clause. The MSPB found the appellant’s speech was disrespectful, but not intimidating, and reversed the removal.

Conjunctives

The case: Brott v. GSA, 116 M.S.P.R. 410 (2011)

The charges:

  1. On July 23, 2008, disorderly conduct and failure to follow instruction, specifically, using abusive language to a coworker, while loading the packing belt line, and leaving the facility when his supervisor ordered him to stop using abusive language.
  2. On July 24, 2008, failure to follow instructions to report to the facility manager, James Gorman, regarding the incident of July 23, 2008, and absence without leave (AWOL).

The outcome: Because of the way these charges were drafted, there was some confusion and discussion about what had actually happened. The MSPB found the agency failed to prove charge 1 because the agency did not prove both the disorderly conduct and a failure to follow instruction. Removal reversed.

Descriptors

The case: Parkinson v. DoJ, SF-0752-13-0032-I-1 (October 10, 2014)(NP)

The charge: “Unprofessional conduct – on duty.”

The outcome: The employee engaged in unprofessional conduct by having inappropriate relationships with contractors, but the agency did not provide evidence the conduct occurred while the employee was on duty. The charge fails.

Takeaways

In the Holmes case where the USPS employee purchased marijuana, there could have been a very different outcome if only minor things were different:

  • Had the employee successfully argued to the MSPB that he was on a break when he purchased the marijuana, the charge would have failed. See Downey v. DVA, 2013 MSPB 24.
  • Had the employee been wearing only part of his uniform, he may have successfully argued that he was not in uniform, and the charge would have failed.
  • The MSPB may have gotten picky about the slashes and discussed the and/or conundrum, and decided the agency did not prove both sides of the charge.

The agency’s removal action in Holmes was ultimately upheld. But might there have been a bit safer way to draft the charge?

In Parkinson, above, MSPB said, “An agency is not required to affix a label to a charge but may simply describe actions that constitute misbehavior in narrative form in its charge letter; however, if the agency chooses to label an act of alleged misconduct, then it must prove the elements that make up the legal definition of the charge.” I couldn’t have said it better myself.  Hopkins@FELTG.com

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

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By Deborah Hopkins, March 8, 2021

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

On Executive Order 13950 (Schedule F):

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

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

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

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

On Executive Order 13839 (Discipline and Performance Accountability)

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

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

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

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

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

Does Saying ‘All Lives Matter’ Create a Hostile Work Environment?

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By Deborah Hopkins, February 10, 2021

Last summer, at the height of the Black Lives Matters protests, the U.S. Office of Special Counsel (OSC) issued guidance on whether Federal employees were permitted to display Black Lives Matter paraphernalia in the workplace. According to OSC, the phrase “Black Lives Matter” (BLM) has become a motto for protesters and organizations “seeking to raise awareness of, and respond to, issues associated with racism in the United States.” Because BLM is centered on issues, it is not considered political organization. Therefore, employees are not prohibited from wearing or displaying BLM merchandise in the workplace.

As with any movement, there are supporters and non-supporters of BLM. One of the catchphrases of opponents to BLM is “All Lives Matter.” Much has been written about how and why this phrase is offensive to Black individuals, even when the perpetrator claims to have non-racist intentions.

So let’s look at a hypothetical, coming to a workplace or Zoom meeting near you. Employee X comes to work wearing a BLM shirt. Employee Y, a co-worker, looks at the shirt and says to Employee X, “All Lives Matter.” Employee X contacts an EEO counselor and claims hostile work environment harassment based on race.

Which leads me to the obvious question: Can a statement such as “All Lives Matter” create a hostile work environment?

I know this is a divisive topic. I know I’m taking a risk even writing about it. There are a lot of strong feelings about BLM and ALM. But this stuff is happening, right now, maybe in your agency, and you need to be prepared to deal with it – the legal way.

Harassment can be a difficult subject to handle. When you find yourself faced with what appears to be a hot-button subject such as this, take a deep breath or two, and remember to always come back to the framework: 1) What are the elements of a hostile work environment, and 2) Is there agency liability?

Unwelcome Conduct

In a hostile work environment case, the first step of the analysis is to identify the conduct that is unwelcome in the workplace. Unwelcome conduct might be words, jokes, name-calling, use of epithets or slurs, threats, email forwards, touching or physical assaults. Conduct is also broad enough to include objects or pictures worn or posted in the workplace.

The primary focus in these cases is on whether the conduct was unwelcome to the victim, not on what the speaker’s intent was – though malicious intent can go to severity.

The question: Could a coworker uttering the phrase “All Lives Matter,” or wearing a shirt or posting a sign in their office with that slogan on it, be considered unwelcome conduct?

____ Yes

____ No

Based on Protected EEO Category

The next element to consider is whether the conduct was based on a protected EEO category: race, color, national origin, religion, gender, disability, age, genetic information, or reprisal.

The question: Is the statement “All Lives Matter” related to an EEO category?

____ Yes

____ No

If so, which category or categories?

____________________________________________________________________

Severe or Pervasive

When determining whether the conduct creates a hostile, intimidating, or abusive work environment, the severity and/or pervasiveness of the conduct must be considered. Some of the items to think through include:

  • Is the complainant offended by the conduct?
  • Would a reasonable person be offended by the conduct?
  • The frequency and duration of conduct
  • The egregiousness of the conduct
  • The vulnerability of the victim, considering factors such as age and mental capacity
  • The makeup of workforce — is the victim the only employee in the EEO category?
  • The social context
  • Whether the conduct is physically threatening or humiliating
  • Whether the conduct unreasonably interferes with an employee’s work performance
  • Relative positions of perpetrator and victim

The question: Is one utterance of “All Lives Matter” from one co-worker to another, severe or pervasive enough to alter the terms, conditions, or privileges of employment?

____ Yes

____ No

Does this change if the person making the statement is a supervisor?

____ Yes

____ No

Note: While most EEO case law says that a one-time instance of offensive conduct does not generally rise to the level of a hostile work environment, there are a number of cases where once was enough. Here are a few to get you started: Lashawna C. v. Department of Labor, EEOC Appeal No. 0720160020 (Feb. 10, 2017); Frank v. USPS, 2013 EEOC Appeal No. 120110223 (Jan. 31, 2013).

Agency Liability

The hypothetical above didn’t say anything about the agency’s response to the incident, so we don’t have enough information to discuss liability. That’s another article altogether. But I can tell you, these kinds of incidents have occurred and are likely to occur, and the agency has a responsibility to protect its employees from harassing conduct. If you see or hear anything like this, it’s critical to intervene immediately.

I don’t have a definitive answer about whether this one statement would create a hostile work environment. As of this morning, there isn’t an EEOC decision involving the term “All Lives Matter.” I have to think that’s because of timing. Perhaps those cases are making their way through the EEO process now because ALM wasn’t a thing until fairly recently. There are, however, a few cases where “Black Lives Matter” comes up as a search term. If you’re interested, here are a few citations: Emerson P. v. USDA, EEOC No. 2019001823 (Mar. 20, 2019); Sherman H. v. Reclamation, EEOC No. 2019002422 (May 7, 2019); Jaqueline L. v. DLA, EEOC No. 2019001449 (June 23, 2020).

If you’re free March 2-4, join FELTG for the virtual training class Conducting Effective Harassment Investigations, where we’ll give you lots more on this topic and more, in three half-day segments. Hopkins@FELTG.com

Is Whistleblowing Different Under a Biden Administration?

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By Deborah Hopkins, February 10, 2021

We have a new President in the White House, there’s something you may not have realized: He sees things differently than the last guy who occupied 1600 Pennsylvania Avenue. At FELTG we try not to wade into the merits of politics; our job is to take what the current administration says about employment law topics, and relay those to you within the existing framework of law and regulation, plus any relevant Executive Orders. That said, there are certain ways in which the politics of the party in control impact what we teach and how we teach it. Take whistleblowing, for example.

Federal employees who make protected disclosures about waste, fraud, or abuse in the government are considered whistleblowers, and the highest level of workplace protections of any employee group. Higher than veterans, people with disabilities, union officials, religious minorities, LGBTQ individuals, and more. The law says that whistleblowers may not be fired, disciplined, or otherwise mistreated because of their disclosures. If an agency takes an action against a whistleblower, it needs to provide clear and convincing evidence the action was not taken because the employee blew the whistle.

Under President Trump’s administration, there was a focus on firing leakers who shared inside information with the public. Firing a leaker is perfectly legal, unless of course the leaker is a whistleblower – in which case it’s against the law. So, over the last four years agencies concentrated on looking closely at the nature of the disclosure (the “leak”) to determine whether it rose to the level of protected whistleblower activity, or whether it was simply misconduct. If it was a close call, many agencies took the side of management and adopted the stance the disclosure was not protected, and handled the employee accordingly.

Today, we still have to look at the nature of the conduct to determine if it is protected activity, but under President Biden the philosophy about whistleblowers has shifted. Instead of viewing whistleblowers as leakers, the President (when a candidate and then as President-elect) has spoken about the need for employees to disclose waste, fraud, and abuse in the government – heck, he even hired a high-profile whistleblower to be part of his transition team. So now, if there’s a close call, perhaps we’ll see agencies take the side of assuming the disclosure was protected.

This Republican/Democrat dynamic is unsurprising. Republican administrations tend to be more pro-management and Democratic administrations tend to be more pro-employee. Members of both parties have talked publicly, and emphatically, about the importance of protecting whistleblowers – but traditionally hairs have been split when looking at what was disclosed and whether it was protected activity.

What does this mean for whistleblowing in 2021? You might expect, as political appointees are confirmed or placed in your agency, for the tone about whistleblowing to change. Perhaps you will be encouraged to settle existing reprisal complaints. Perhaps whistleblowers will be urged to come forward with disclosures. Perhaps Congress will pass a new law with more protections.

And perhaps not. Regardless of who is in the White House, whistleblower reprisal is going to occur – though our goal at FELTG is to educate the powers-that-be so that reprisal eventually stops altogether. That might be your job too, and now is a good time to check in with what you know, and what you might not know, about whistleblower protections. As timing would have it, Bob Woods will be covering the most important details in just 60 minutes during the February 25 webinar Why, How and When to Avoid Whistleblower Reprisal. We hope you’ll join us. It’s too important to miss.  Hopkins@FELTG.com.

The State of the Civil Service: The Whiplash is Real

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By Deborah Hopkins, January 25, 2021

For the last couple of Januaries, I have written an article on the state of the civil service. It provides a glimpse of where  we’ve been over the last year, and gives me a chance to point out the one or two significant changes we might be expecting.

This year, so many changes have taken place over just the last few days, the undertaking to summarize what’s happening is massive. But I’m up for the task if you have a few minutes to read it. Let’s look at what’s happening in the world of Federal employment law.

Federal Employee Morale

For decades, Federal employees have borne the brunt of public scrutiny. When one employee does something bad, somehow all 2 million-plus are unfairly painted as slackers who break rules and earn an easy paycheck on the taxpayers’ dime while not really doing any work. That is dead wrong, but such a perception deeply impacts morale.

Morale among employees has been even lower over the past few months as they have dealt with the physical and mental challenges of a global pandemic, a contested election, a riot at the Capitol, and tumultuous transition to a new administration.

Last week President Joseph R. Biden, Jr. put out a video where he directly addressed career civil servants, thanking them for their service and letting them know how important they are to a functioning government. “You’re running the show,” he said. The President’s words, combined with actions taken in his first few days, demonstrate that the Federal workforce is a priority.

Executive Orders

Just hours after being sworn in, President Biden signed two executive orders that directly impact Federal employees:

  • 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
  • 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

There’s a lot to unpack in these orders, including time-sensitive requirements for agencies, plus details on how the Supreme Court case Bostock v. Clayton County applies to the Federal government.

We’ll be sharing the most important takeaways and action items in the 60-minute webinar Changing Course: Understanding the Biden Executive Orders on Racial Equity, Gender Identity, and Sexual Orientation on February 9 at 1:00 pm eastern. Join us to be sure your agency is compliant with these new requirements.

But wait! Only two days later, President Biden issued an EO on Protecting the Federal Workforce. With seven sections and a signature, this EO revoked President Trump’s Executive Orders 13836, 13837, and 13839 – the famous EOs heard ’round the world that impacted labor relations official time, contract negotiation timelines, topics of bargaining, performance and disciplinary actions, clean record settlements, and more. And if that wasn’t enough, it also eradicated the Schedule F classification mandated by EO 13957.

You might have questions, such as:

  • What does this mean if your CBAs were already renegotiated?
  • Is progressive discipline going to be mandatory now?
  • Do PIPs have to be longer than 30 days?
  • What happens if your agency already sent Schedule F lists to OPM?

There’s a lot to figure out and not a lot of time to do it. We know you are incredibly busy, so leave it to FELTG to weed through all the details and provide you with the important information. Ann Boehm and I will present all the need-to-knows and action items in a 90-minute webinar Changing Course: Understanding the Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on February 9 at 2:30 pm eastern.

MSPB

In Democratic administrations, we tend to see MSPB Members who are more pro-employee; in Republican administrations the majority tends to be more pro-management (depending on how the vacancies fall, as these are seven-year fixed terms). Because all three positions are vacant, President Biden will almost certainly nominate two Democrats and one Republican to the MSPB.

But if you think this pro-union administration is going to take it easy on employees who misbehave, think again. During a virtual swearing-in ceremony on January 20, the President told several hundred political appointees: “I’m not joking when I say this: If you’re ever working with me and I hear you treat another with disrespect, talk down to someone, I promise you I will fire you on the spot. On the spot. No ifs, ands, or buts. Everybody is entitled to be treated with decency and with dignity.”

Following this logic, we can expect that agency leadership will also prioritize discipline for career employees who engage in disrespectful conduct, conduct unbecoming a federal employee, or similar charges. And if your disrespectful employees happen to be law enforcement officers, the standard is even higher. We’ll explain why on February 23 during the virtual training A Higher Standard: Disciplining Law Enforcement Officers for Misconduct.

We’re expecting nominees to be named soon, and if we’re really lucky we’ll start getting some decisions in time for MSPB Law Week, March 29 – April 2, so register soon and save your seat.

Whistleblowers

The incoming Board Members will have a lot of work to do. Almost 3,100 Petitions for Review are awaiting action, and somewhere around 700 of those deal with allegations of whistleblower reprisal. We can expect the Biden administration to make whistleblower cases a priority, as the President himself has spoken about the importance of employees coming forward with allegations of waste, fraud, and abuse. If you need to brush up on your whistleblower law (and really, who among us doesn’t?), FELTG Instructor Bob Woods will do that in just 60 minutes on February 25 during the webinar Why, How and When to Avoid Whistleblower Reprisal.

Inspector General Oversight

Expect a return to independence for Federal Inspectors General. Last May, then-candidate Biden told the Washington Post that he would never fire a Federal IG. In his words, IGs are “… designed to make government honest. To keep it honest.”

IGs will likely be busy with this shift in priorities – as happens with any change in administration – and it’s time to plan for the year ahead, now that those priorities are becoming more clear. Join us this Wednesday, January 27, at 12:30 pm eastern for the virtual training An OIG Guide to Annual Planning and Benchmarking for Best Practices.

EEOC

Here’s something interesting. The EEOC under the Biden administration will have a Republican majority (3-2) until July 2022. The five Commissioners have 5-year staggered terms, and Commissioners can only be removed for cause – they don’t serve at the pleasure of the President. President Biden made Commissioner Charlotte Burrows (D) the Chair on January 21, but this does not alter the timelines of the appointment terms.

Where will the Commission take us in the year ahead? Find out during EEOC Law Week, March 15-19.

FLRA

Friday morning, Federal labor relations was one way. Friday afternoon, the outlook was 180 degrees different. We’re working through EO 140XX . By our February 9 webinar, we’ll have a summary of what you need to do regarding contract provisions that met EO 13836 and 13837, guidance on permissive bargaining, official time, and more. And join us for FLRA Law Week May 10-14, where the entire world of Federal labor relations will be discussed in depth.

Closing Thoughts

I know this was a long read, so thanks for hanging with me. For more than 20 years, FELTG has done its best to be your source for the most accurate and current Federal employment law news and training, and this year is no different. These actions are so important, and have such an impact on you, that we would be remiss if we didn’t provide you with content and training opportunities on all of it.

Stay tuned. It’s going to be quite a year. Hopkins@FELTG.com

Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide

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By Deborah Hopkins, January 11, 2021

Unless you were living under a rock on a deserted island without Wi-Fi for the last week, you saw the horrifying sight of a mob of American citizens, in protest of the results of the Presidential election, rioting at the United States Capitol.

Dozens, if not hundreds, of individuals engaged in violence against law enforcement officers, broke into one of our country’s most sacred buildings, destroyed government and personal property, smoked marijuana, defaced statues, stole government property, and drove our elected Members of Congress and their staffs – dedicated federal employees – to evacuate the building in fear for their safety. At least 5 deaths have been reported.

So, what would, could, or should happen if one of the rioters turned out to be a federal employee? We know that private sector companies have issued terminations. Can a federal agency fire such an employee?

When asking and answering this age-old question, it’s important to remember the discipline framework, regardless of the nature of the conduct. Following the framework will bring you to the right answer every time. At FELTG, we call this framework the Five Elements of Discipline.

I’m not going to fill in the answers for you; instead I am intentionally leaving space so that you can do the work and come to your own conclusion, with the guidance of some helpful hints in italics and a few Notes that might be of interest.

Element 1. Did the employee violate a rule?

Hint: Rules can come from a variety of places — statute, regulation, policy, should-have-known, agency SOP, code of conduct, supervisor’s unique rule, common sense, etc.

What rule(s) did the employee violate?

 

 

Note on nexus. Keep in mind if the misconduct occurs off-duty, there must be a nexus between the misconduct and the efficiency of the service. Assaulting a Federal police officer or destroying Federal property, and other things of that nature, show a link between the misconduct and the efficiency of the service.

Element 2. Does the employee know the rule exists?

Hint: An agency can’t enforce secret rules, so it has to show the employee knew, or should have known, there was a rule prohibiting such conduct.

What notice does this employee have, based on the rule(s) identified in Element 1?

 

 

Element 3. What evidence do you have that the employee broke the rule?

Hint: News footage, social media posts, emails sent on a government computer, courtroom testimony, and more have all been used as evidence in administrative cases.

What evidence would you use – and is it evidence at the preponderant level?

 

 

 

Element 4. Is removal an appropriate penalty?

Hint: Use the Douglas factors to get to the outcome. If you need a reminder, a Douglas Factors Worksheet can be found here: https://feltg-stage-ada.stage3.estlandhosting.com/douglas-factors-worksheet/.

 

 

Note: In egregious cases such as these, you’ll want to hit hard the Douglas factor of the harm or potential for harm, but don’t ignore other factors such as job level, the cost of the damage, your trust and confidence in the employee, the potential for rehabilitation, and the employee’s past misconduct, especially if it involves violence, insubordination, or similar.

Element 5. Will you provide due process?

Hint: As tempting as it might be to tell someone who assaulted a Capitol Police Officer with a lead pipe “You’re fired, effective immediately,” you’ll want to be sure to follow the due process requirements that most career employees enjoy. That’s right, this citizen who has attempted to overturn the Constitution, is still entitled to his own Constitutional employment protections.

List the three-step due process requirement you’ll provide.

 

1.

2.

3.

(If you don’t know the process, then check out this article for a reminder: https://feltg-stage-ada.stage3.estlandhosting.com/due-process-challenges-in-a-covid-19-world/)

Additional Considerations

A- If the employee was supposed to be working at the time they were breaking into the Capitol, the agency can charge the employee AWOL. In fact, that might be a streamlined way of getting to the removal, without having to rely on anything involving the violent behavior.

If the employee was arrested and didn’t show up to work the next day because they were in jail, the agency can also charge AWOL for that time. An employee’s annual leave request does NOT have to be approved because they are in jail.

OPM says annual leave requests may be denied if the agency’s denial is reasonable. You tell me: Is it reasonable to deny annual leave to someone who tried to overthrow Congress, assaulted federal LEOs, and destroyed government property in the process?

B – The agency can (and should) put the employee on Administrative Leave during the notice period, so they don’t come after you with a lead pipe because you’ve proposed their removal. Once regulations are issued on 5 U.S.C. 6329b the agency can use Notice Leave instead.

C – There are obviously criminal implications here. Because a removal is an administrative procedure, the agency does NOT need to wait for criminal charges to be brought, let alone a criminal conviction. Charge the underlying misconduct (for example, conduct unbecoming a Federal employee) and prove it by a preponderance of the evidence, and this employee could be off the payroll before investigators or police have paid him a single visit.

D – If you want to take the employee off the payroll even faster, you can invoke the Crime Provision under 5 U.S.C. 7513(b)(1).

We talk about all these things in upcoming training classes including UnCivil Servant: Holding Employees Accountable for Performance and Conduct (February 10-11) and MSPB Law Week (March 29-April 2). I hope you’ll join us. And please – stay safe out there. Hopkins@FELTG.com

What Will Be The Fate of the Trump Executive Orders?

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By Michael Rhoads, January 11, 2021

Happy New Year! The Counting Crows said it best in A Long December: “And there’s reason to believe, maybe this year will be better than the last.” I don’t know about you, but I do have a sense that this year will be better than the last.

A common question in the transition from one administration to the next is which Executive Orders will survive and which will be rescinded. During his campaign, former Vice President Joe Biden signaled that he will rescinding some Executive Orders on his first day in office.

Among the first EOs to be rescinded will likely be those affecting Labor-Management Relations. The National Treasury Employees Union (NTEU) published its recommendation in November to rescind EOs 13836, 13837 & 13839, along with other actions they would like to see the Biden Administration take. Rescinding these EOs will help improve the climate of Labor-Management Relations in the Federal workforce by relieving pressure on the management side to expedite negotiations on new collective bargaining agreements. It will also ease official time restrictions for union work. Yet, there is still more work to do on both sides when it comes to improving Labor-Management Relations.

Diversity Training

Some Executive Orders have already been suspended by court order. In response to a preliminary injunction issued by the US District Court for the Northern District of California, the Department of Labor released a Notice Regarding Executive Order 13950, related to restrictions on diversity training. The Office of Federal Contract Compliance Programs (OFCCP) will stop using the hotline set up to collect information, cease investigations of noncompliance with the EO, and not take any enforcement action outlined in the EO.  OFCCP will also stop publishing any Requests for Information which sought information related to compliance or noncompliance with the EO.  Additionally, contract clauses restricting the use of the diversity terms outlined in the EO, such as “white privilege,” will not be enforced.

Update on Schedule F

Despite calls from good governance and federal employee groups to block Schedule F, Congress did not block it in this year’s spending bill, and Schedule F may not be easy to eliminate with the stroke of a pen. It will still have the support of elected officials eager to reshape the federal workforce. According to University of Texas Professor Dr. Donald F. Kettl, conservatives may use Schedule F to wage a court battle calling into question the constitutionality of the Federal government’s merit-based system itself.  This could hinder the Biden Administration’s ability to run the federal government in the short term and change the Federal workforce in the long run.  The status of this EO is “to be continued…,” even if only in part.

Find out more, along with what else to expect – and what things might not change – by attending our webinar series: Toolkit for a New Administration: Essential Skills and Knowledge for Federal Supervisors, Managers, and Leaders.  The first webinar will be held on January 21, so you can get an immediate jump on what you need to know, and how to apply the knowledge to your day-to-day operations.

Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com