Yes, ADHD Actually is a Disability – and NO, All Kindergartners Don’t Have It

,

By Deborah Hopkins, December 3, 2019

My brother is several years younger than I am, and I remember when he was in kindergarten, his teacher recommended he go on Ritalin because he was hyper and she thought he had ADHD. My parents were taken aback and started talking to other parents who had children in my brother’s class. It turns out the teacher had recommended that 22 out of 25 of her students go on Ritalin.

I’m no medical expert, but I can tell you that 22 kids in his class did not have ADHD; they were five and six years old and had energy, as kids do. Maybe the teacher should have opted for a classroom of students who were a bit older, but I digress.

As we teach during the behavioral health day of Emerging Issues Week (next offered in Washington, DC, July 20-24), ADHD is a brain disorder with a pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development. This may include:

  • Inattention – individual wanders off task, lacks persistence, or has difficulty sustaining focus.
  • Hyperactivity – individual moves about constantly, excessively fidgets, taps, or talks. The individual is frequently restless.
  • Impulsivity – individual makes quick decisions without thinking through them first; may have a desire for immediate gratification and/or may be socially intrusive.

Note: These problems are not due to defiance, lack of comprehension or substance use.

I’m not sure if the over-diagnosis of ADHD in the 1980s and 1990s has led agencies to believe it is not a legitimate disability, but don’t make that mistake. ADHD does exist and for the people who have this condition, the symptoms and effects are very real.

If you’ve been in this business longer than five minutes, you are aware that Americans With Disabilities Act, the Rehabilitation Act, and the various amendments to these laws provide employment protections to certain people with disabilities.

In order to be covered the employee or applicant must:

–      Have a physical or mental impairment that substantially limits one or more of the major life activities of such individual,

–      Have a record of such an impairment, or

–      Be regarded as having such an impairment

42 USC § 12102(1).

Obvious physical impairments are sometimes handled better by agencies than mental impairments. Indeed, a number of mental impairments, such as ADHD, are what we refer to as “hidden,” “unseen,” or “invisible” disabilities. While it’s true that many physical disabilities are also invisible to the observer, there have been too many cases where agencies denied reasonable accommodation to employees with unseen mental impairments.

I’d like to look at two cases involving ADHD.

In the first, the complainant, who had ADHD, had a difficult time concentrating, so she requested to be moved to a quieter work area. Though the agency agreed the complainant had a disability, it took two years (!!!) before it addressed her request to move to a quieter, low-traffic area to work. She also requested she be allowed to do work that “focused on the task at hand,” be allowed to avoid multi-tasking whenever possible, and that the agency provide her with time to readjust when moving from one thing to another and time to formulate ideas when trying to streamline questions or statements. The agency did not grant these additional requests beyond the workspace move, and the complainant’s performance rating was affected as a result. The Commission found the agency did not show it would be an undue hardship to consider these requests and ordered the agency to expunge negative performance reviews from her file, and to consider the complainant’s claim for compensatory damages. Michelle G. v. Treasury, EEOC Appeal No. 0120132463 (May 13, 2016).

In the second ADHD case, the complainant’s condition substantially limited her ability to concentrate. She also experienced side effects from multiple medications which further affected her ability to concentrate. Her request for accommodation included a medical note that stated, “cannot concentrate in loud open cubicle environment.” She requested a regular telework schedule, a private office or cubicle, or a modified work schedule. The agency requested additional information, which the complainant responded. Her medical documentation noted that the cubicle location allowed “for too many distractions for her disability” and that she “needed to work in the most distraction-free environment possible (e.g., a private office or quiet cubicle away from noise and/or distractions).” This did not satisfy the agency, so they asked for more. Once again, the complainant complied. Her doctor explained that she was: [H]aving difficulty wrapping up the final details of a project, organizing things, evidencing signs of physical and mental restlessness, easily distracted by noise, talking too much and interrupting people, and trouble waiting her turn, which Complainant’s doctor described as “classic signs of ADHD.” The complainant’s doctor added that medication “was not the full answer” and that “ADHD impact[ed] upon one’s ability to care for self, to speak appropriately, to interact with others, to concentrate and to work effectively.” The agency considered this medical documentation insufficient, so the complainant filed an EEO complaint over the denial of reasonable accommodation.

Eventually, the Commission found that the Agency failed to present sufficient evidence that granting the complainant’s request would have been an undue hardship, and the complainant received $60,000 in non-pecuniary damages, plus pecuniary damages and attorney’s fees. That’s an expensive lesson to learn. Selma D. v. Education, EEOC Appeal No. 0720150015 (April 22, 2016). [Allow me to note that the original RA request came in 2007 and the decision was not issued until 2016. Talk about harm.] So, there you have it.

If you want more, there’s still time to join FELTG’s webinar Accommodating Hidden Disabilities in the Workplace this Thursday. Hopkins@FELTG.com

Can You Fire A Federal Employee for Body Odor or Bad Hygiene?

, ,

By Deborah Hopkins, November 13, 2019

You’ve probably all dealt with this situation at some point: You’re sitting on an airplane, bus, or subway train, or at a concert or in church or in a meeting, and you catch an odor from the person sitting next to you. It’s not a temporary odor that’s the result of an accidental gas release from an upset stomach. It’s a fixed odor that’s likely related to bad hygiene.

I remember one time flying on Southwest Airlines and being so grateful that the seats were not pre-assigned; a seatmate who had some very unpleasant odors settled in next to me and I was able to move without having to endure a 3-hour flight in that seat. With my overly sensitive sense of smell, I had to get out of there ASAP. While it might seem mean to say it’s difficult to be around people with bad odors, I’m not saying it to be mean. I think most readers would agree it can be a real challenge to be exposed to people with certain hygiene issues.

In many of these unpleasant situations, the arrangement is temporary, and in a number of cases you are able to remove yourself from the situation like I did on my flight. But what happens when the problem is coming from an employee or coworker who you have to see – and work around – every day?

Believe it or not, we have MSPB cases on the topic. A very old, foundational case addressed the matter of an employee who had unhygienic personal habits which went beyond body odor and included intentional defecation of himself in the workplace. The agency removed him on four charges including (1) non-compliance with work standard; and (4) unhygienic personal habits. The presiding official – who we now call the Administrative Judge – concluded that the appellant’s unhygienic personal habits alone would have been sufficient to remove him. Interestingly, the employee argued that his disability (colitis) caused the misconduct, the MSPB didn’t buy that argument and agreed with the presiding official:

The evidence of record plainly shows the demoralizing and unhealthy environment created by appellant’s personal habits. The record also reflects that the agency frequently counseled appellant as to his hygiene and that appellant made no effort to change. The agency endured appellant’s poor performance and unhygienic habits for many years. It need not exercise forbearance indefinitely. Gertzman v. INS, 9 MSPR 581, 583 (Jan. 19, 1982).

It’s true that sometimes body odor is disability-related, and you may need to consider an accommodation. However, that was not the case in Gertzman.

In another old case, the agency removed a probationer for failure to improve her personal hygiene after repeated warnings and counseling from her supervisors and after several complaints about her odor from her coworkers and members of her trade. As many of our readers know, if a probationer is removed, she has very limited appeal rights to MSPB and may only appeal if her removal was based on partisan political reasons or marital status. 5 USC 7511(a)(1)(A)(i); Ney v. Commerce, 115 MSPR 204 (2010). In this case, the appellant claimed she had hygiene and odor issues because her status as an unmarried person prevented her from obtaining resources that would allow her to improve her personal hygiene. The MSPB didn’t buy that argument, either, but you can’t blame a person for trying. Hilden v. USDA, 8 MSPR 300 (Oct. 1, 1981).

I’ve got more. There’s the Bureau of Prisons supervisor who for years urinated in a mop closet – not into a bucket but onto the closet floor – rather than walk to the restroom to use the proper facilities. As if that’s not bad enough, he also encouraged his subordinate to do the same. His demotion for Conduct Unbecoming a Supervisor was upheld. Hutchinson v. DOJ, 211 MSPR 77 (May 5, 2014). Then there’s the food inspector who was suspended for “improper conduct” because he intentionally passed gas around his coworkers on the food inspection line, and then asked them to smell it. Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID).

What about the employees who bring critters in to the office with them? No, not emotional support animals (that’s a different article) but things like bedbugs. Can you tell the employee they are prohibited from bringing bedbugs in to the office? Well, sure. As long as you have a business-based reason, you can set a workplace rule for an employee, and there is most certainly a business-based reason for not wanting bedbugs in a federal office. Tell the employee, then follow up in an email: “Do not bring bedbugs to the office.” If necessary, you can even do an indefinite suspension until the employee demonstrates medically she is free of the little critters. See, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), cases which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unhygienic, conduct in the workplace. Hopkins@FELTG.com

Takeaways from OPM’s 2019 Federal Employee Viewpoint Survey

, ,

By Deborah Hopkins, November 13, 2019

It’s that time of year again. No, not the time when the stores put out Christmas decorations and pre-black-Friday sales begin (although that is happening, too). It’s the release of OPM’s 2019 Federal Employee Viewpoint Survey (FEVS). Each year as I await the report, I wonder what new pieces of information we’ll learn about how the federal government is doing as an employer. And each year, I learn something I didn’t know before. In case you haven’t had a chance to read it, here are a few takeaways, in ascending percentage order, from over 615,000 federal employees who participated:

  • 17% of respondents said there were no poor performers in their work unit.
  • 34% believe their supervisors take steps to deal with a poor performer who cannot or will not improve. Looking at it from the other side, this means that 66% of employees still don’t think supervisors are taking action against poor performers. Not a great number, but it is still the best percentage on this question in recent memory.
  • 39% believe that differences in performance among employees in their work unit are recognized in a meaningful way. Again, this means that 61% do not feel recognized.
  • 56% said that poor performers remain in their work unit and continue to underperform.
  • 57% believe their training needs were assessed and addressed in the past year.
  • 59% think their workload is reasonable.
  • 66% would recommend their organization as a good place to work.
  • 67% believe they can disclose a suspected violation of any law, rule or regulation without fear of reprisal – in other words, two-thirds of employees believe it’s safe to be a whistleblower in the federal government.
  • 71% of respondents agree with their most recent performance rating.
  • 83% believe their supervisors are holding them accountable for performance.
  • And, and astounding 96% of employees who responded said that when needed they are willing to put in the extra effort to get a job done. This proves what FELTG has always known, that most of our readers are incredible, hard-working, dedicated employees who want to make the government a better place.

There’s also an entire series of questions related to the impact of the 35-day shutdown, which is not very eye-opening but because it’s new you might find it interesting. If you want to read it yourself, check it out here. Hopkins@FELTG.com

Discipline Alternatives: Too Good to be True?

, ,

By Deborah Hopkins, October 16, 2019

What if…

  • You could discipline an employee in a way that didn’t cause you more work?
  • You could discipline an employee and they couldn’t file a grievance or complaint?
  • The discipline you issued actually helped other people?

Believe it or not, there’s a way to make all these dreams come true. You see, in addition to traditional discipline (reprimand, suspension, demotion, and removal), the MSPB, for years, has blessed alternative arrangements that agencies and employees agree to, that carry the weight of traditional discipline but are not traditional disciplinary actions. These are called discipline alternatives.

As former MSPB Chairman Neil McPhie once put it, “The merit principles encourage agencies to be effective and efficient in how they use the Federal workforce. This includes the responsibility to address misconduct in a manner that has the greatest potential to prevent further harm to the efficiency of the service. Under the correct circumstances, alternative discipline may be the most effective method for addressing such misconduct.” (Emphasis added.)

One of the most popular discipline alternatives is the Reprimand in Lieu of a Suspension (RLS). We first learned about these courtesy of the United States Postal Service, which back in the 1990s negotiated suspensions OUT of their master contract and replaced them with RLS.

That’s right, forget about suspensions because there’s no evidence they work anyway. In fact, when you suspend an employee for misconduct, the supervisor and co-workers have to pick up the slack while the suspended employee sits at home doing nothing.

Here’s how an RLS works. If a supervisor determines that an employee deserves to be suspended, let’s say for 5 days, the supervisor proposes the 5-day suspension. But at the bottom of the proposal letter there’s an additional section with an employee signature line, that read something like this:

By my signature below, I accept responsibility for this act of misconduct. I acknowledge that discipline is warranted and accept a Reprimand in Lieu of a Suspension as offered to me by My Manager. I understand that the agency will consider this Reprimand in Lieu of a Suspension as equivalent to the proposed suspension for the purpose of progressive discipline should I engage in future misconduct. By accepting this Reprimand in Lieu of a Suspension I agree not to file a complaint or grievance about this action.

Pretty cool, huh?

There are other alternatives you might want to consider as well. Here are a few, in no particular order.

  • Paper suspension or weekend suspension: With this approach, there is no loss of pay, but the agreement is considered to carry the weight of a suspension.
  • Non-sequential suspension: Instead of a 5-day suspension where an employee loses half a paycheck, suspend the employee one day per week for 5 weeks.
  • Leave donation: The employee donates annual leave to a leave bank or leave transfer program. For example, if the proposed suspension was 3 days, the employee donates 3 days of annual leave.
  • Community service: This may be a hard one to enforce, but the employee may agree to perform 24 hours of community service instead of a 3-day suspension.
  • LWOP: Carry the employee on LWOP for the amount of time the agency would have suspended him. Because it is coded as LWOP instead of a suspension, there will be no permanent record of a disciplinary action.
  • Training or support services: Require the employee to attend training or go to EAP in lieu of a suspension, if the type of misconduct matches up with these options.
  • Last chance agreement: Hold the penalty in abeyance for two years. If the employee does not engage in misconduct during the two years the proposal goes away, but if the employee violates another workplace rule during those two years, the penalty immediately goes into effect.

Remember, in each of these cases you are cutting a deal with the employee and offering the discipline alternative in exchange for the employee waiving her right to appeal or file a complaint about this discipline. If you don’t like it, then forget about it because you don’t have to do it. But I promise, these discipline alternatives will make your life much easier.

There are more discipline alternatives, which we’ll discuss in October 24 webinar Discipline Alternatives: Thinking Outside the Adverse Action. If you’re interested, I hope you’ll join us. Hopkins@FELTG.com

Initial-Appointment Probationary Periods: Not the Same as Supervisory Probationary Periods

, ,

By Deborah Hopkins, October 16, 2019

A question recently came up in class about the difference between an initial-appointment probationary period and a supervisory probationary period in the competitive service. It turned into a more interesting discussion that I would have guessed, so I thought perhaps some FELTG readers might also be intrigued. Here goes.

Initial-Appointment Probationary Period

When an individual gets her first job with the federal government, she begins a one-year probationary period with that initial appointment – unless she works for DOD, in which case her probationary period is two years. During this time, the employee is expected to perform the work at an acceptable level, and to follow workplace rules. If, during the probationary period, there is a problem with the probationer’s performance, the agency can remove the employee without putting her on a performance demonstration period. If the employee is engaging in misconduct, the agency can remove her for a first offense without utilizing progressive discipline, even if the misconduct is minor. In addition, the probationer has very limited appeal rights and generally cannot appeal her removal to MSPB. (There are a few exceptions: If she claims she was removed because of her marital status, or because of her partisan political activity, she can appeal to the MSPB. Otherwise, the Board has no jurisdiction.) A probationer does have a right to file an EEO or OSC complaint.

The reason a probationer’s MSPB appeal rights are limited is because until the probationary period is successfully completed, the employee has not earned a property interest in her job, and, therefore, she is not entitled to the constitutional due process afforded to vested career employees (Advance Notice, Opportunity to Respond, Impartial Decision). Most employees are on their best behavior when they start a new job. If, in the first 12 months of employment, it becomes apparent the person is already not doing a good job, the agency should remove that person before the statutory protections attach.

The probationary period applies to initial appointments with the federal government as a whole, so an employee new to your agency may have already completed a probationary period, or part of a probationary period, at another agency.

Timing is important here so if you’re thinking about removing an employee who is new to your organization, check the calendar to determine whether you can remove them without procedures.

Supervisory Probationary Period

Now let’s talk about new supervisors and managers, and their probationary periods. But first some definitions. According to MSPB’s research brief Improving Federal Leadership Through Better Probationary Practices (May 2019):

A supervisor is someone who accomplishes work through the direction of other people and performs at least the minimum supervisory duties required for coverage under the OPM General Schedule Supervisory Guide. They plan work, communicate organizational goals and policies, guide performance, listen to concerns and ideas, ensure employees have the resources needed to do their jobs, play a significant role in determining the culture of the organization, and often make difficult decisions about employee recruitment, retention, development, recognition, and appraisal. In addition, because resources are scarce for many employers, supervisors are often expected to perform line work that requires technical skills.

A manager supervises other supervisors and is not a member of the Senior Executive Service (SES). Further, a manager, as described in the General Schedule Supervisory Guide, directs the work of an organizational unit, is held accountable for the success of specific line or staff functions, monitors and evaluates the progress of the organization toward meeting goals, and makes adjustments in objectives, work plans, schedules, and commitment of resources.

Because the roles of supervising and managing people are of the utmost importance in agencies achieving mission success, an additional probationary period attaches when an employee first becomes a supervisor or manager. These probationary periods are governed by different regulations than the initial-appointment probationary periods. While there is no statutory timeline, most agencies set this period to a year.

Interestingly, agencies also require managers to complete a managerial probationary period once they begin their first manager job, even if they have already completed a supervisory probationary period.

So, at the end of this probationary period, how does an agency determine if a supervisor or manager has been successful? The regulations allow agencies a lot of flexibility in making this determination before the supervisory appointment is finalized. Some lay out the expectations explicitly while others leave a lot of judgment up to the next-in-command.

Let’s say the supervisory probationary period doesn’t go well and the agency determines the employee is not an effective supervisor. What happens now? Well, just because someone isn’t a good supervisor doesn’t mean that person isn’t a good employee. Results from MSPB’s Governmentwide 2016 Merit Principles Survey show that 72 percent of employees believe that their supervisor had good technical skills, but only 62 percent believed their supervisor had good people-management skills. Interestingly, though, in 2016 there were 28,467 new supervisors but agencies only took action in 192 of those cases – about .67%.

Being an unsuccessful leader does not automatically mean a probationary supervisor is out of a job at the end of the year. As long as that person has successfully completed the initial-appointment probationary period through prior federal service, she will be reassigned to a non-supervisory position in the agency at the same grade-level and pay she was earning before she became a supervisor. If, however, the supervisor or manager was not in the competitive service before beginning her supervisory probationary period, then she is also concurrently serving her initial-appointment probationary period and has no right to a non-supervisory job, so she can be removed from service. Hopkins@FELTG.com

FELTG Sets the Record Straight on Whistleblowing

, ,

By Deborah Hopkins and William Wiley, October 8, 2019

We’ve been reading and hearing a lot lately about whistleblowers, most recently about the Ukraine/Biden/Trump situation. We’re not here to discuss the merits of the complaint about President Trump’s conversation with Ukrainian President Zelensky, and we’re not here to discuss politics. We’re here to clarify that the media and numerous folks in Washington have (yet again) gotten a lot of things wrong in talking about this mysterious intelligence community whistleblower.

In discussions about the whistleblower’s motive for making the disclosure, one of the themes that keeps coming out is, “The whistleblower is a partisan.” Well, guess what? Even if that’s true, it’s irrelevant because when it comes to whistleblowing, the motive does not matter.

That’s right, whether a whistleblower makes the public aware of waste, fraud and abuse because he wants to save the world, or whether he does it to get the President impeached, the law protects him anyway, as long as he meets the legal requirements of whistleblowing.

To be protected a whistleblower must disclose:

  • Violation of law, rule, or regulation;
  • Gross mismanagement or gross waste of funds;
  • Substantial and specific danger to public health or safety; or
  • Abuse of authority.

While there is statutory protection and a Presidential Policy Directive (PPD-19) that covers whistleblowing by intelligence community employees, the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act cover a large group of employees in the federal sector non-intelligence communities. That’s what we’ll discuss here today, because these are the statutes that apply to most FELTG readers.  [Editor’s note: House Democrats Ted Lieu (Calif.) and Don Beyer (Va.) recently updated and released a whistleblower guide for federal employees that you may find of interest.]

Let’s start with a little history lesson. Following the implementation of the Civil Service Reform Act (CSRA), a whistleblower’s disclosures were not considered protected if the employee’s “primary motivation” was not for the public good, but rather for was for his own personal motives. See Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed. Cir. 1986). However, in subsequent years, the Federal Circuit determined it had improperly reached that conclusion because nothing in the CSRA requires an employee’s motives should be considered in determining whether a disclosure is protected. Id.; see also Horton v. Department of the Navy, 66 F.3d 279, 282-283 (Fed. Cir. 1995).

In 1988, Congress decided that a whistleblower’s motivation should not be considered, and that all employees should be encouraged to alert the public of waste, fraud and abuse. “The [Office of Special Counsel], the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing.” S. Rep. No. 413, 100th Cong., 2d Sess. 12-13 (1988). Id.

As we said above, under 5 USC § 2302(b)(8), disclosures of information that the employee making the disclosures “reasonably believes” evidences certain kinds of wrongdoing are protected. The only time bias or motivation might enter the picture is in testing reasonableness of belief in blowing the whistle — and, warning, it’s an uphill battle. While bias and self-interest may be considered in testing the reasonableness of belief, bias alone does not determine that a whistleblower does not have a reasonable belief. LaChance v. White, 174 F.3d at 1381. Personal motivation, whether to save the world, ruin someone’s career, or something in between, does not per se affect reasonableness. Carter v. Army, 62 MSPR 393 (1994).

If “the employee is motivated by a desire to damage others’ reputations,” this fact alone is not dispositive, even though the whistleblower’s motives in making disclosures were to destroy his supervisor “during the course of an internal agency power struggle,” Fickie v. Army, 86 MSPR 525 (2000).

Separately, some in the press made a big issue that the whistleblower disclosed no first-hand information in the complaint, nor any other direct proof of the alleged impropriety that occurred in the President’s July 25 phone call. Again, that’s irrelevant as to whether the individual is a protected whistleblower. A whistleblower need only have a “reasonable belief” in the facts he is disclosing, not actual proof that the facts are as they are being described. In other words, if an individual is told something by a reliable source, and chooses to believe it because it makes sense to him, he is then protected if he discloses the believed facts in a whistleblower complaint. It’s the subsequent investigation of the complaint that is supposed to flesh out the facts based on credible evidence; it’s not up to the whistleblower to prove the allegations.

Some talking heads made an issue out of the belief that the employee is not a whistleblower because the alleged facts do not rise to the level of a crime. Well, federal employees are whistleblowers if they report things other than criminal activity; e.g., a simple abuse of authority or gross mismanagement will suffice to protect the discloser. The commission of a “high crime or misdemeanor” would be relevant to the impeachment process, but not to the status of being a whistleblower.

A lot of guests on talk TV have used harsh words to describe the whistleblower: traitor, spy, partisan hack, deep-state operative, rotten snitch, rat, back stabber, saboteur. In reality, a federal employee who believes that he or she has observed corruption committed by a government official is required by regulation to disclose that belief. A “basic obligation of public service” can be found at 5 CFR Sec. 2635.101

(a) Public service is a public trust. … To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section …

(b) …

(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

Even if the individual personally did not want to disclose what appeared to be corruption being committed by a particular government official, the regulations mandates that a disclosure be made.

What does this all mean? It means Congress has afforded protections to whistleblowers higher than any other kind of protection in the civil service, and as long as the employee has a reasonable belief that the content of the protected disclosure is true, that whistleblower cannot legally be disciplined for making the disclosure – even if his goal was to make his boss look bad, get fired, or worse.

Hopkins@FELTG.com; Wiley@FELTG.com

 

We Don’t Need Civil Service Reform, Part III: It Doesn’t Take As Much Proof As You Think

, ,

By Deborah Hopkins, September 18, 2019

In the final installation of this three-part series, I will discuss how holding employees accountable does not take as much evidence as you think it does. Before you read this, though, take a look at the first two articles in the series:

Holding employees accountable is not as difficult as you think it is.

Holding employees accountable is not as time-consuming as you think it is.

I hope by now you’ll agree with me that the civil service system is not completely broken, but instead is being used inefficiently. Today we will tackle the final challenge, on the amount of evidence needed to take actions against employees for misconduct or performance-related problems.

A 2015 MSPB survey found that 97% of federal supervisors thought they needed more evidence to remove a federal employee that they actually do. The most startling number was that 94% of proposing officials thought they needed evidence beyond a reasonable doubt – that’s the amount you need to send someone to jail – to take an accountability action. The reality is, the evidence you must show to defend your action is far lower.

In DISCIPLINE cases, the level proof you need is called a preponderance of the evidence, which is that degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true. 5 CFR 1201.56(c); 5 CFR 1201.4(q).  If it is more likely than not that the employee violated a workplace rule (stole a laptop, falsified a time card, acted disrespectfully toward a supervisor, went AWOL, failed to follow a supervisor’s instruction, etc.), the agency has enough proof to discipline. If you are a supervisor and your employee said something disrespectful to you in a one-on-one meeting, you have a preponderance of the evidence. It’s as simple as that. You might have witnesses, video logs, an admission, or more, and that’s fine, but you don’t actually need that much evidence.

The most disempowering words a supervisor can hear from an advisor when the supervisor wants to take action against an employee who has violated a workplace rule is, “You can’t do that because you don’t have enough evidence.” In most cases, there actually is enough evidence to proceed.

In PERFORMANCE cases, the proof you need is substantial evidence, which is evidence that reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action, even though others may disagree. 5 CFR 1201.56(c)(1); 5 CFR 1201.4(p). If an employee might have failed a critical element in her demonstration period, that is substantial evidence – even though other supervisors might disagree with the assessment of the employee’s performance. (Unless it’s a widget-based, black and white standard that is not open to interpretation.)

Additionally, with performance cases, unless your agency is exempted from the performance procedures in the statute, there is no requirement to do a Douglas factors analysis. Things like harm, length of service, work record and potential for rehabilitation do not have any impact – the MSPB can’t even look at those factors if the employee appeals a performance-based removal. The only evidence that matters is what happened during the 30-day demonstration period.

A special word to our friends at the VA – under 38 USC 714, which is just over two years old: Your burden of proof is substantial for both misconduct and performance cases for all employees covered by this statute.

Hopefully, you now see that you don’t need as much effort, time, or evidence as you thought you did, in order to hold a federal employee accountable. The legal minimum makes it easy to take the necessary actions so that an employee being paid by our tax dollars gets better, or else moves on to something else. Hopkins@FELTG.com

Can an Agency Track Down a Former Employee and Discipline Him?

, , ,

By Deborah Hopkins and William Wiley, August 14, 2019

This hypothetical recently came across the FELTG Help Desk, and we thought it was a curious question that the rest of our readers might be interested in. It’s a multi-part scenario, so read carefully.

  1. Can a misconduct investigation at an employee’s old agency follow him to or otherwise impact him at a new agency where he has gotten a new job?

Answer 1. As long as the agency can find a nexus (a connection) between the previous misconduct and the current government job, then an investigation (and its ensuing findings) from another agency may follow the employee to the new job. The impact can include anything from nothing through removal, depending on how the new agency views the conduct.

The investigation stays with the employee because the employee is accused of engaging in misconduct directed against the government, which is not limited to just the former agency. Or, perhaps he’s committed a criminal act (against the American people). Either way, moving from one agency to another does not relieve him of accountability.

  1. If it is a low-level offense (far from criminal), can the old agency mandate the employee back to be interviewed, and reach them at their new agency to receive the proposal and decision letters? Or does the new agency somehow take on the case?

Answer 2. The former agency can absolutely request the employee to come back for an interview, and the new agency’s supervisor can mandate the employee comply with the interview request or else face disciplinary action. And just so you know, refusal to cooperate with an agency investigation is first-offense removal misconduct, no matter how serious or minor the misconduct allegations might be. See, e.g., Hamilton v. DHS, 2012 MSPB 19, Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Sher v. VA, 488 F.3d 489 (1st Cir. 2007).

Keep in mind, even though the employee has left, there’s this little piece of the Administrative Leave Act of 2016 (part of the 2017 NDAA) dealing with investigative leave that says if an employee quits during an investigation, the formerly employing agency should complete its investigation, then forward any adverse conclusions to the new agency for inclusion in the employee’s OPF. The former agency will have to notify the employee and then deal with any appeal, and as far as we can tell this issue has never been litigated.

When it comes to imposing discipline, however, that decision must be made by the new agency.

The employee now works at X agency, so he is controlled by X agency’s rules and regulations. And no agency regulations in the history of our great country allow some other agency to discipline employees other than its own. The former agency, call it Y, can inform agency X of its findings and recommend to management at X that the employee be disciplined. If X refuses to discipline, then the management at Y can go up the chain of command to the President and have him order X to discipline. The power to discipline employees is vested in the president (5 USC 301, et seq) and he can delegate that authority downward to his respective department heads. It’s all up to him.

In summary, the authority to discipline is vested in the employing agency, not the formerly employing agency. The old agency can recommend, but that’s about it, UNLESS…

If agency Y doesn’t mind taking political heat, they can report the matter to the IG of agency X, just like anybody can, by dropping a dime on employee misconduct.

[Wiley Note:  Several years ago, while riding with a chatty Uber driver, he asked me what I did for a living. I told him that I helped government agencies fire people who do bad things. He paused a second, and then asked, “Do these agencies contact you for help, or do you just go around DC looking for bad government employees you can fire?” There are a lot of days, my friends, that I wish that the second option had been the right answer.]

Hope this helps. Hopkins@FELTG.com

We Don’t Need Civil Service Reform, Part II: Accountability Doesn’t Take as Much Time as You Think

, ,

By Deborah Hopkins, August 14, 2019

Last month, I published the first article in a three-part series We Don’t Need Civil Service Reform, where I discussed how holding employees accountable is not as difficult as you think. A couple readers took issue with that premise, and said it’s NOT that easy. Well, at FELTG our instructors’ experience, some as former federal managers and some as legal consultants to dozens of agencies over the years, leads us to this conclusion: Although some agencies have built managerial problems for themselves, when it comes to misconduct and performance removals, the procedures are indeed simple. Actions can be taken without great pains. We don’t make this stuff up.

If you haven’t read the article, I recommend you do before you move on to today’s topic.

Have you noticed when you read the news or watch politicians on TV, the theme about federal employees, on a continuous loop, is that it takes forever to take any action against them? In reality, yes, agencies are taking far too long to take action against employees who have performance or conduct issues. But, it shouldn’t take a long time – and even better, it doesn’t have to.

Holding employees accountable is not as time-consuming as you think it is.

There are legal timelines for taking misconduct and performance actions and unless your agency policy or collective bargaining agreement says you have to do otherwise, I don’t know why you wouldn’t comply with the legal minimums. In addition, the documents needed to discipline an employee, or to put the employee on a performance demonstration period (or DP, the preliminary action formerly known as the PIP) shouldn’t take weeks or months to draft.

In DISCIPLINE cases, here’s the timeline:

Reprimand: Issue this immediately – as in, the same day the employee violates a workplace rule, or the day you find out the rule was violated. The longer you wait, the more of a disservice you do to yourself (it doesn’t count as discipline until the reprimand is given to the employee) and to the employee (she doesn’t have a chance to “learn” from the reprimand until she has received it).

It also doesn’t make logical sense to wait months to issue a reprimand. Such a delay undermines the assertion that “What you did was bad, and we won’t put up with it.” Legally, you can still issue a reprimand months after the misconduct – but why would you wait?

Short suspension: The proposal for the short suspension (anything a pay period or less) should also be handed to the employee as soon as practicable after the employee violates the workplace rule – generally within a week.

The employee then has a minimum of 24 hours to prepare a response to the deciding official (some agency policies or CBAs allow 7 or 10 days for the response), and the deciding official’s decision after considering the proposal and the employee’s response, can go into effect the next day.

That’s right. If an employee violates a rule on a Monday, the proposal can be given to the employee on Wednesday or Thursday, and the suspension could be served starting as soon as the following Monday.

Removals, demotions, and long suspensions: We recommend you never demote an employee or suspend for more than a pay period – come to MSPB Law Week if you want to know why – so I’ll focus this on removal actions.

The proposed removal should be issued to the employee immediately after the conclusion of the misconduct investigation, and the employee should be placed on notice leave so as not to disrupt the workplace. After all, the employee has done something so bad he deserves to be fired, so the longer you wait, the weaker it makes your argument about the nature and seriousness of the offense. The employee then has a minimum of 7 days to respond to the proposal (again, check policy or CBA). At any point after the response, and within 19 calendar days (per Executive Order 13839) the deciding official must make a decision, which can become effective as soon as day 31 (if the proposal is day 1).

Yes, an employee who violates workplace rules can be out of the workplace and off the payroll in a little over a month after the misconduct occurs.

In PERFORMANCE cases, the timeline looks like this:

As soon as the supervisor can articulate why the employee’s performance is unacceptable on a critical element in the performance plan, the supervisor should initiate a 30-calendar-day demonstration period – what we used to call a PIP – to allow the employee to show he can perform his job at an acceptable level. If the employee is not successful, his removal or demotion should be proposed immediately after the end of the demonstration period. In fact many agencies, such as USDA and HHS, have policies requiring a decision about the employee’s future to be made within 7 days of the end of the demonstration period.

After the proposal is issued, the employee then has a minimum 7-day response time, the same as in proposed disciplinary removals. But here’s where things become different from disciplinary cases: the deciding official is legally required to issue a decision within 30 days of the expiration of the notice period. Functionally, that falls between days 31 and 60, if the proposal is issued day 1.

It’s true, my friends. It only takes a month to remove a poor performer and MSPB has never NEVER NEVER found a 30-day demonstration period to be too short. The only time you have to make that period longer is if your CBA requires it, or perhaps if the person comes down with some terrible illness and is out of the workplace for three weeks out of the demonstration period.

Whether it’s a misconduct or a performance problem, you can have the employee off the rolls within just a few short weeks. It shouldn’t take months or years. The system as it exists is built for efficiency. You just have to use it the way it was intended.

Join us next time for Part III, where we discuss how holding employees accountable does not take as much proof as you think.

Take care out there. Hopkins@FELTG.com

A Two-for-One Removal

,

By Deborah Hopkins, August 6, 2019

Here’s a scenario that came across the FELTG desk a few days ago:

Dear FELTG,

Let’s say, hypothetically, an agency has an employee who failed a PIP/demonstration period last week, and the agency is finishing up drafting his proposed removal.

Meanwhile, let’s say the supervisor sent an email to the employee pointing out his failure to submit leave requests as previously instructed and asking him to send them immediately. Instead of sending them, he calls the supervisor and unleashes a tirade – lots of “G-d damn,” “f*!king,” “sh!t,” screaming at the top of his lungs and calling the supervisor names. The supervisor’s door is closed, but the employee is on speakerphone, and people across the hall – also with their office doors closed – hear the tirade and are almost as upset and shocked as the supervisor.

The supervisor wants to do a misconduct removal, and considering the fact that the employee was just suspended for five days for similar inappropriate conduct towards a coworker, that’s probably not unreasonable. Also, the employee still hasn’t submitted those leave requests as instructed. In any event, some kind of discipline is warranted.

What should the agency do with the disciplinary proposal since a performance removal is imminent? Hold one in abeyance while the other is processed? Propose them both at the same time? It might be tempting to just forget about the discipline (since they’re removing the employee anyway), but what if the agency didn’t want to do that?

Sincerely,

Anonymous

 

And here are FELTG’s thoughts on the scenario:

Good to hear from you, Anonymous, and thanks for the hypothetical. This imaginary person has just made your case for removal even stronger.

The agency can issue one proposed removal letter with two sections: one for conduct and one for performance. I would start off with a subject line of Proposed Removal for Misconduct and Unacceptable Performance, and start the letter something like this:

By this letter I am proposing your removal for Conduct Unbecoming [or whatever you call that profanity-laced tirade], AWOL [for the amount of time not covered by a proper leave request], and for unacceptable performance, based on the below:

Then I’d make very clear in the letter where the conduct section starts and ends, and where section for the performance removal starts and ends. In the attachments of materials relied upon, be clear what materials relate to the conduct removal (such as Douglas analysis, any evidence, affidavits, etc.) and which relate to the performance removal (such as failed PIP assignments).

You don’t want to confuse the processes for yourself, or the employee, so you’ll need to be organized in the letter.

Also, if the Deciding Official concurs with removal, you’ll want to split out the decision sections for conduct and performance clearly as well. It would also be wise to include in the decision letter something to the effect of, “Removal is an appropriate penalty for the conduct issue alone, and for the performance issue alone.” Only if it’s true, of course. That way even if for some reason you lost one, you would still have the other one.

As a quick point, in the FELTG world this employee would not have had the chance to be confronted about leave requests and subsequently act disrespectfully to the supervisor the week after he failed the demonstration period (DP). Why, you ask? In our classes, we teach that if it looks like the employee is not going to succeed during the DP, the supervisor can begin to draft the proposed removal letter during the DP, based on the incidents of poor performance, so that the letter can be issued the day after the end of the DP. Immediately after we give the employee the proposed removal, we put the employee out on Notice Leave so he’s no longer in the workplace. That’s the ideal situation, if you are aggressive in your approach. And we like aggressive.

Hope this hypothetical helps. Good luck! 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.