Can Agencies Drug Test Injured Workers?

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By Frank Ferreri, November 15, 2022

Let’s say an employee who is going about her business on the job slips and falls, resulting in an injury for which she files a claim for workers’ compensation benefits. Someone at the agency thinks that it wasn’t work that caused the spill but the fact that she was under the influence of drugs at the time of the injury.

The agency, wanting to get the record straight, decides the employee needs to undergo drug testing. Can the agency do such a thing and what sort of considerations apply when an agency has made the call to test for drugs?

The following breaks down what Congress, the Office of Workers’ Compensation, and the Employee Compensation Appeals Board (ECAB) have had to say about drug testing for workers injured on the job.

First off, while it isn’t the law it should be pointed out that Executive Order 12564, signed into effect by President Reagan in 1986, maintains that Federal employees are required to refrain from the use of illegal drugs. The EO charges agencies with establishing programs for drug testing. So, Federal employees shouldn’t be using drugs in the first place, and agencies have the authority to take action against those who do.

In the specific context of workers’ compensation, under 5 USC Sec. 8102(a), Congress has declared that agencies are not required to pay workers’ compensation benefits for a disability or death that is proximately caused by the intoxication of the employee. Unlike Reagan’s EO, it’s not just illegal drugs that are a problem. That’s because on the regulatory side of things, in 20 CFR 10.220, OWCP clarified by implication that the “intoxication” referred to under the statute is “intoxication by alcohol or illegal drugs.”

In 2009, OWCP released Publication CA-810, which, among many other things, spelled out that an agency defending against compensating an employee must present a record that establishes the extent to which the employee was intoxicated at the time of the injury and the particular manner in which the intoxication caused the injury.

So, while the work doesn’t stop by proving that an employee was under the influence of illegal drugs or alcohol, it is a necessary first step to controverting a claim.

The 2009 publication emphasized that an agency looking to proximately link an injury to an employee’s intoxication does not have “any additional authority to test employees for drug use beyond that which may exist under other statutes or regulations.”

An agency claiming the employee’s intoxication as a defense should, per the FECA Procedure Manual, obtain a statement from the physician and hospital where the employee was examined following the injury that describes the extent to which the employee was intoxicated and the manner in which the intoxication affected the employee’s activities. As part of this, the manual directs agencies to obtain “the results of any tests made by the physician or hospital to determine the extent of intoxication.”

Contours of the law

To see how the law plays out in the real world, it’s necessary to look at ECAB decisions that have weighed in on the issues of injured employees, their intoxication, and agency-employed drug testing.

Here’s a look at a few cases for insight on those subjects:

N.P. and U.S. Postal Service, 2011 WL 4499581, No. 10-952 (ECAB July 26, 2011)

What happened? A letter carrier alleged that she injured the left side of her head, broke her left elbow, and scraped her left knee when she fell after making a delivery.

The agency’s argument. The agency controverted the claim, asserting that she was intoxicated at the time of the injury due to her consumption of narcotics and, therefore, did not sustain an injury in the performance of duty, which is a required showing for an employee to obtain benefits.

The drug testing issue. Because the carrier appeared to be intoxicated – allegedly she was slurring her speech and falling in and out of consciousness and another patient expressed concern that the carrier had been driving — the hospital where she received treatment for her injuries administered the test, which came back positive for opiates. Further analysis revealed the presence of “an extremely high concentration of morphine and a significantly elevated level of oxycodone.”

How the ECAB ruled. According to the board, the evidence, including the drug test, wasn’t “clear” that the carrier was intoxicated at the time of her fall and did not establish that intoxication was the proximate cause of the accident. “The evidence establishes only the possibility that [the carrier] was intoxicated … at the time of injury.”

T.F. and U.S. Postal Service, 2008 WL 5467738, No. 08-1256 (ECAB Nov. 12, 2008)

What happened? A mail carrier alleged that she experienced an injury while driving for work when she hit an embankment of gravel, which caused the vehicle to hydroplane and led to a spinal injury.

The agency’s argument. Drug testing came back positive for marijuana and opiates, the agency denied the carrier’s claim.

The drug testing issue. The test was administered two full days after the accident, and the report indicated that the tests were “all … unconfirmed” and noted that no chain of custody was maintained on the specimens received.

How the ECAB ruled. The agency didn’t meet its burden to establish the affirmative defense of intoxication because it did not provide any discussion of why intoxication was the proximate cause of the accident. Instead, the evidence established that “at the time of her injury [the carrier] was delivering mail on her usual mail delivery route.” Accordingly, the carrier sustained an injury in the performance of duty.

In the Matter of Elaine Hegstrom and U.S. Postal Service, 2000 WL 1285967, 51 E.C.A.B. 539 (ECAB June 5, 2000)

 What happened? A USPS employee died after sustaining a broken neck in a motor vehicle accident that occurred while he was delivering mail. Before he died, the employee was cited for driving under the influence. 

The agency’s argument. The agency invoked the affirmative defense of intoxication, claiming that it removed the employee from the performance of duty.

The drug testing issue. Upon arrival at the hospital after the accident, the employee’s blood alcohol level was tested at nearly twice the legal intoxication limit in the state where the accident occurred.

How the ECAB ruled. Based on the blood alcohol level and a doctor’s opinion, the ECAB held that the employee’s intoxication removed him from the performance of duty as it was the proximate cause of his injury.

B.B. and Department of Justice, Bureau of Prisons, 2015 WL 5306843, No. 14-2000 (ECAB July 9, 2015) 

What happened? The widow of a Bureau of Prisons correctional officer filed a claim for survivor’s benefits, alleging that the officer was “murdered [by] gunshot” on the job.

The agency’s argument. In response, the agency alleged that the officer died in a hotel as the result of a gunshot wound inflicted by a fellow correctional officer in activities that were not job-related, part of which involved illegal drug use.

The drug testing issue. A toxicology report indicated that the officer had Methlenedioxypyrovalerone – better known as “bath salts” – in his system. The report also indicated the presence of Lidocaine, which is used as a “cutting” agent for drugs of abuse.

How the ECAB ruled. According to the board, “the employee’s ingestion of mind-altering drugs would not be reasonably expected by the employing establishment as a travel-duty activity, and it constituted a deviation from the normal incidents of his employment such that he was removed from the performance of duty.” Thus, the widow was not entitled to survivor’s benefits.

The takeaway

What does it all mean?

Based on statutes, regulations, agency decisions, and guidance, agencies should get the results of drug testing in hand when faced with a claim for workers’ compensation benefits, particularly if something like a doctor’s concern or a coworker’s observation raises the suspicion of possible drug or alcohol use on the job.

However, the legal key to asserting a defense based on an employee’s substance use is that intoxication must be the proximate cause of the injury for OWCP to deny benefits to a worker. Thus, the agency must provide evidence showing that the employee’s illegal drug or alcohol use removed her from the performance of duty.

It can be a tough case because, in certain circumstances, the ECAB might say that even if the employee was intoxicated, the injury would have happened anyway, and so would be compensable. info@FELTG.com

EEO Reprisal is (Unfortunately) Alive and Well

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By Deborah J. Hopkins, November 15, 2022

Reprisal, or retaliation, is alleged in about half of all EEO complaints. It is the most common basis of discrimination in findings against agencies. Let’s look at a few situations where the EEOC has issued findings of EEO reprisal: reassignment, discipline, and retaliatory harassment.

Reassignment

An agency is permitted to reassign an employee for any legitimate, business-based reason, such as employee performance or agency business needs. But reassigning an employee that management views as a problem because of her EEO activity is not permitted under the law.

A Federal Bureau of Prisons medical officer complained about harassment “in the form of harsh supervision, denial of adequate staff assistance, daily intimidation, differential treatment, inappropriate schedule changes, and desecration of her religious practices.” According to the Commission, management reprised against the complainant when they told her she was “the problem” and “the one causing all of the drama” and that “problems always surround her.”  The AJ also found the complainant was subjected to reprisal when management reassigned her to a different work location. Gwendolyn G. v. BOP, EEOC Appeal No. 2021001396 (Oct. 18, 2021).

Disciplinary action

An agency is permitted to discipline an employee for misconduct as long as there is a nexus between the misconduct and the efficiency of the service, and provided the discipline is not motivated by that employee’s protected category or activity.

A program analyst filed an EEO complaint against two supervisors alleging hostile work environment harassment on Aug. 12, 2016. On Aug. 29, the supervisor reprimanded the complainant for discourteous behavior that occurred between the complainant and her supervisor on Aug. 10. The supervisor never put the reprimand in the complainant’s eOPF despite her statement she intended to do so.

The EEOC found a causal connection between the complainant’s protected activity and the agency’s disciplinary action because of the “close temporal proximity” between the two events. The AJ concluded, and the EEOC agreed, the reprimand was issued for the purpose of chilling the complainant’s EEO activity. Karolyn E. v. HHS, EEOC Appeal No. 2021003151 (Oct. 19, 2021).

Retaliatory harassment

Creating a hostile work environment because a complainant engaged in protected activity also violates the EEO statutes.A supervisory criminal investigator claimed retaliatory harassment when he was warned he “better be careful” and that if he continued to file EEO complaints “they will come after him.” An agency management official also confirmed that she informed the complainant about the comments and management’s attempts to legally “stop” his EEO activity. On top of that, another management official stated he believed the complainant’s EEO complaints were “ridiculous.” Also, agency management failed to timely approve or acknowledge the complainant’s leave requests, denied his telework request, and issued him a counseling memorandum without following the agency’s discipline policy. The EEOC found this conduct was motivated by the complainant’s protected activity and constituted unlawful retaliatory harassment. Terrance A. v. Treasury, EEOC Appeal No. 2020002047 (Sept. 13, 2021), request for reconsideration denied, EEOC Request No. 2022000139 (Feb. 9, 2022).

Reprisal is something easily avoided if you have the proper training and awareness. We’ll be teaching EEO counselors how to identify potential reprisal during our Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training Jan. 23-26, 2023. Hopkins@FELTG.com

Weingarten and Performance Counseling Don’t Mix

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By Barbara Haga, November 15, 2022

Last month, my colleague Ann Boehm wrote a great article The Good News: With Weingarten, The Law Is Enough. I cheered as she discussed the various elements of the Weingarten right and when she suggested that agencies should not agree to anything beyond what the law requires. How is it in management’s interest to add additional notice requirements? If the statute says annual notice is good enough, then, like Ann, I am all about complying with just that.

The basics

Understanding the reasoning behind the Weingarten right helps make it clear when it applies and when it doesn’t.  In Department of Justice, Bureau of Prisons, Safford, AZ and AFGE, Local 2313, 35 FLRA No. 56 (FLRA 1990), the Authority quoted from the legislative history of the Civil Service Reform Act (CSRA), where Congress adopted the same framework regarding representation for Federal employees in disciplinary situations that applied under the National Labor Relations Act.

In Weingarten the Court noted that “[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.” Id. at 262-63. In such circumstances, the Court concluded that “[a] knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.” Id. at 263. In support of its conclusion that representation could be beneficial to the employer as well as the employee, the Court quoted from an arbitrator’s award that described the representation process as contemplating “that the steward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified.”

Performance evaluation issues

When leading training sessions for various agencies, I hear some managers say they allow union representatives to participate in performance discussions and performance counseling sessions because they believe it is required. Perhaps, their agencies agreed to such a provision in contract negotiations, or it has become a past practice over time, or perhaps they are allowing the representatives even though their advisors would say it is contrary to their policies.

However, the situation the Supreme Court addressed in Weingarten — a lone employee being questioned by management about events that could lead to a disciplinary action — is quite different than discussions between a supervisor and employee about missing information in a report or whether the employee applied the wrong per diem rate in a travel reimbursement.

The FLRA’s view 

The question of whether Weingarten extended to performance conversations arose early after passage of the CSRA. The Authority issued decisions in 1981 and 1982 that clearly indicated that Weingarten was inapplicable to these types of situations.

In Internal Revenue Service, Detroit, MI and National Treasury Employees Union and NTEU, Chapter 24, 5 FLRA No. 53 (FLRA 1981), the Authority dealt with the case of an annual performance review. Mr. Goff was a GS-11 revenue officer whose work was subject to a 100 percent review by his manager. This was a normal process which had occurred in prior years. It included preparation of a form identifying the findings of the manager and then a meeting with the employee to discuss those findings. After prior such evaluations, Goff had to make adjustments on some cases. Prior to the meeting at issue, Goff requested that a union representative be present at the meeting.

The manager denied Goff’s request. As Goff expected, the manager criticized his work and gave him a “critical elements” letter, which was essentially a PIP notice.

The union filed an unfair labor practice charge. The ALJ who heard the case found no violation and the Authority adopted the ALJ’s findings. The ALJ found that the performance review meeting was not an examination and that there was no reasonable basis to conclude that disciplinary action could arise from it. It was noted that the “critical elements” letter was not a disciplinary action, but instead, “… identifies serious work performance deficiencies and does advise the employee what is expected to improve performance to an acceptable level within a specified period of time, at the end of which there will be a further evaluation of the employee’s performance on these identified elements.”

Roughly one year later, the Authority issued its decision in Department of the Treasury, Internal Revenue Service and National Treasury Employees Union and NTEU, Chapter 22, 8 FLRA No. 72 (FLRA 1982). In a similar set of circumstances, Mr. Kotofsky’s cases were reviewed. He had received several written counseling notices that year about deficiencies in his work. His supervisor told him a branch chief was coming in to hold a discussion with him and the supervisor about the unacceptable work results. Kotofsky asked for a representative, which was denied. Kotofsky was not asked to provide responses on any of the case reviews. In fact, neither the branch chief nor the supervisor took notes during the meeting.

The ALJ in this case found that there was no right to representation under the circumstances. The decision includes the following finding:

“The purpose of the meeting was to generally highlight these known deficiencies to the employee and tell him how to raise the level of his performance to expected standards. This was nothing more than a pure counseling session and was remedial in nature; without the requisite investigatory element it did not qualify as an ‘examination of an employee . . . in connection with an investigation,’ even though the employee asked to be represented by the union. The Statute does not provide a right to representation under these circumstances.”

Bottom line  

In the situations described in these cases, the Authority found that Weingarten did not apply. If union representation is being allowed in performance meetings, it isn’t because Weingarten makes it so. So, please allow me to echo Ann’s message from last month: Agencies don’t need to go beyond what the law provides. And please make sure your managers know what the limits are. Haga@FELTG.com

Lessons Reinforced: DOs Can Be Heavily Involved Early in Discipline Situations

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By William Wiley, November 7, 2022

As the new Merit Systems Protection Board (MSPB) members plow through the 3,000-plus pending PFRs, we keep an eye out for any new principles of law being developed by the issuance of precedential decisions. However, it is just as valuable to watch for the affirmation of existing Federal employment law principles in new opinions, regardless of whether new law is being created. We all need to know whether any current Board members have a different take on existing precedence or plans to change how we do things.

[Editor’s note: See Bill’s recent article on other principles affirmed in recent MSPB decisions.]

A recent Board decision reminds us that a Deciding Official (DO) can be involved significantly in a disciplinary case before the Proposing Official (PO) issues the proposal notice. In Dieter v. DVA, 2022 MSPB 32 (Sept. 14, 2022), the new Board had to address a claim by the appellant that the agency violated his Constitutional due process rights because, among other things, “the deciding official was biased against him and considered ex parte information in deciding to impose the removal,” Dieter, ¶7. In evaluating this argument, the Board relied on precedence that broadly reinforced that a DO can be significantly involved in the initiation of a disciplinary action.

This is an important issue. At FELTG, we frequently hear from agency DOs who have been told that they must remain isolated from any proposed disciplinary action for fear of violating the employee’s due process rights. This is often frustrating for the higher-level manager who is concerned about workplace misconduct or poor performance yet is supposed to remain above the fray until the lower-level supervisor issues a proposal notice. We all need to appreciate that such isolation of the DO is not required by Board law and is usually bad for workplace management.

In finding no due process violation relative to this issue in Dieter, the Board referenced solid existing precedence that tells us that a DO can be very active in a discipline case without violating due process, e.g.,

  • “A deciding official’s awareness of background information concerning the appellant, her concurrence in the desirability to take an adverse action, or her predisposition to impose a severe penalty does not disqualify her from serving as a deciding official on due process grounds.” Lange v. DoJ, 119 MSPR 625 (2013).
  • “A deciding official’s mere knowledge of an employee’s background does not rise to the level of a due process violation unless ‘that knowledge is a basis for the deciding official’s determination on either the merits of the underlying charge or the penalty to be imposed.’” , 675 F.3d 1349 (Fed. Cir. 2012).

The key to avoiding a due process violation is for the heavily involved DO to be able to testify truthfully something like this:

“Yes, I was deeply involved in this incidence of misconduct. Yes, I have known the appellant for many years and previously witnessed several similar dishonest acts. Yes, I spoke to the employee’s supervisor and told him that he should consider proposing that the employee be fired. And yes, I told the supervisor that I considered that Douglas Factor 1 in the Douglas Factor Worksheet should be specific as to the extent of the harm caused by the misconduct. However, when I made my decision I considered only the evidence file, the employee’s oral and written responses, and the Douglas Factors as assessed by the proposing official.”

The Dieter opinion and order reminds us: If the DO can truthfully deny considering anything outside of these sources, there will be no due process violation.

For this case law reaffirmation, we can say, “Thank you, new Board members.” This principle validates the reality of a typical workplace. Higher level managers are involved in serious personnel situations in the organization, and such involvement is OK. No need to isolate DOs from an incident so long as they know to make their final decision only on facts told to the employee in the proposal materials. We hope all readers of our newsletter understand this concept and work to implement it in real time in their respective roles in discipline and performance-based actions.

In fact, being the aggressive little devils we are at FELTG, we encourage you to go one step further. When drafting a proposed removal letter for misconduct, why not have the PO and the DO sit down together with staff support from legal or human resources, and jointly develop a Douglas Factor Worksheet to be attached to the proposal notice? That way, any predispositions and concerns can be fleshed out early by both management officials simultaneously, and the employee properly notified of those concerns in the proposal notice so he can have a fair chance to respond to them? That should make it easier for the DO to consider the employee’s focused defenses and preclude a need for the DO to bring into the decision-making process any facts or issues not in the proposal.

New decisions that reinforce old principles are good. New ways of doing things built on those old principles that make this business more efficient are even better. Come to our training at FELTG, specifically the upcoming MSPB Law Week December 5-9, and learn how to do this work as well as it can be done. Wiley@FELTG.com

How Do You Feel About This 2-1 MSPB Decision?

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By Deborah Hopkins, October 24, 2022

FELTG Nation, we have our first 2022 MSPB decision with a dissent! Let’s take a look.

The appellant was a GS-14 Security Specialist at DTRA. One morning, he put food from the cafeteria’s self-serve breakfast buffet in a container, paid for it, and put the container in a bag. He then returned to the breakfast buffet, removed the container from the bag, put more food in the container, and returned the container to the bag. He then left the cafeteria without paying for the additional food, which was valued at $5.

A cafeteria employee who witnessed the incident reported it to her supervisor, and the matter was referred to the OIG. Investigators interviewed the appellant and the cafeteria employee, reviewed the video surveillance footage, and concluded that the appellant “knowingly took food from the cafeteria without rendering payment.”

The agency proposed removal based on a charge of larceny in violation of 18 U.S.C. § 661. The Deciding Official (DO) upheld the removal.

On appeal, the appellant claimed his failure to pay for the second helping of food was inadvertent and occurred as a result of his Type 2 diabetes. He stated that he urgently needed to eat because his blood sugar level was low, and that his fixation on eating caused him to lose focus on paying for the additional food.

The Administrative Judge (AJ) assessed the appellant’s credibility and determined the blood sugar argument was not convincing. The judge also noted the appellant failed to exhibit a clear, direct, or straightforward demeanor during his testimony. In addition, his testimony was not consistent with the record evidence, including the cafeteria video footage.

On PFR, Members Harris and Limon held that the DO failed to appropriately consider all relevant Douglas factors in determining the penalty.

The de minimis nature of the theft. The DO said that “what matters is the action,” and someone who would steal “has a character flaw” and “should not be working as a senior security professional … with a security clearance in the Department of Defense.”

The appellant’s 30 years of discipline-free service and the appellant’s outstanding performance record.

The DO referenced these factors as “NEUTRAL” and at hearing that she considered these factors irrelevant because stealing “shows a character flaw.”

The Board majority said the DO should have considered those factors as mitigating, rather than neutral.

Another interesting piece of the case: Although not addressed by the DO or the AJ, the Board held that the appellant did not have custody or control over the stolen items as part of his official duties. The Board considered this a mitigating factor as well. The outcome: “A 90-day suspension recognizes the seriousness of the offense and its severity.”

Member Leavitt disagreed with his colleagues. In the dissent, he said the agency should have received penalty deference. His explanation relied on video evidence of the appellant that indicated he was hiding from a police officer in the cafeteria and, therefore, was aware of his actions. In addition, the appellant initially answered the OIG investigator’s question denying the conduct, then changed his story when shown the security video.

Member Leavitt also wrote that he believed the DO considered all the DFs, and properly determined that the mitigating factors were outweighed by “the level of responsibility, the fiduciary responsibilities, and the expectation of exemplary personal conduct.” His impression of the penalty: “To me, the deciding official clearly demonstrated that she considered all specific, relevant mitigating factors before determining the penalty and showed that the agency’s judgment to impose a removal did not clearly exceed the limits of reasonableness.”

Chin v. DOD/DTRA, 2022 MSPB 34 (Oct. 7, 2022).

In speaking with students and with other FELTG instructors about this case, I’ve concluded that not everyone will agree with the outcome.

  • Some of you will agree with the Board because a removal seems too severe for such a small amount of money.
  • Others of you might think that removal was warranted given that the conduct violated the law.
  • Some of you might personally disagree with the removal but acknowledge that the agency should receive deference on the penalty, as it was not outside the bounds of reasonableness.
  • And others might think a different penalty was appropriate.

Let’s continue the discussion December 5-9 during MSPB Law Week. Hopkins@FELTG.com

And Now a Word With … EEOC Commissioner Keith Sonderling

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By Dan Gephart, October 18, 2022

Efficiency.

Enforcement.

These two words are probably not among the first to spring to mind when you think of the Equal Employment Opportunity Commission. But EEOC Commissioner Keith Sonderling has a whole lot of statistics to explain why they should be.

Let’s look at FY 2021, the last year for which data is currently available. The EEOC collected a total of $485 million for more than 15,000 victims of discrimination. Out of that large sum, almost $100 million went to 2,169 Federal employees.

“When I speak across the country and I talk about that statistic, people are shocked,” EEOC Sonderling said. “That’s a big chunk of change from an overall picture.”

What about efficiency? Try on this statistic: The 7,664 hearing requests received in FY 21 was a decrease of 6.2 percent from the previous fiscal year. This can be partly attributed to the resolution of 9,082 complaints by the Commission’s hearings program. “Getting 9,000 complaints out the door, that’s really efficient.”

Meanwhile, employees took advantage of the EEOC’s free mediation program. More than 600 Federal sector mediations were conducted, resulting in another $8.4 million for Federal employees and applicants.

“We’ve seen a lot more interest in mediation since the pandemic when we went virtual,” Sonderling said. “Before, you had individuals hesitant to enter mediation. Think of an old-school mediation. You go into a conference room with the person who discriminated against you and your old boss. You never want to see these people again. It’s traumatic. But virtually, you can be in a separate breakout. You don’t even have to see the people.”

The EEOC has been criticized in the private and Federal sectors about case backlogs. Progress is being made there, too, according to Sonderling. In the Federal sector, the aged inventory was reduced by 11.5 percent. And resolutions result in a 6 percent reduction of cases that were more than 300 days old.

“The reduction of pending and aged inventory will have a positive impact on the agency’s ability to more timely process the hearings complaints received and better serve participants in the hearings process.”

The agency is developing its next Strategic Enforcement Plan – an important document that will determine the Commission’s priorities for the next five years. The last strategic plan was approved in 2016. It set the EEOC’s focus over the past five-plus years on, among other things, eliminating barriers in recruitment and hiring, protecting vulnerable workers in underserved communities, ensuring equal pay, and preventing systemic harassment.

Why is this important? Of the EEOC’s 99 findings of Federal sector discrimination in FY 2021, 83 were “identified as implicating one or more Strategic Enforcement Plan priorities, including numerous decisions addressing equal pay or other wage discrimination issues.”

There have been three hearings on the new SEP, all are available on the EEOC’s YouTube page. There will be an opportunity to submit formal comments through the Federal Register. As the agency looks forward, we thought it was a good time to check in with Commissioner Sonderling (pictured at top next page) about priorities, trends, and more. “The most important thing for me and, I think, for all of us at the EEOC is to ensure that the Federal government is leading in creating an inclusive, barrier-free workplace because the US government is the largest employer in the country,” Sonderling said. “It’s important for Federal government to be the model employer. That falls on the EEOC to give guidance to the agencies compliance assistance to prevent discrimination and also from an enforcement perspective when discrimination occurs.

DG: Charges of discrimination are down. Why is that?

KS: I’d love to say it’s because (employees are) realizing employers are trying to do the right thing and prevent discrimination from occurring. Or that the EEOC has provided enough information to employees to know what happened may not have been discrimination. Also, too, with the economy we have now and so many jobs available, instead of going down this very long road of filing charges of discrimination, they may give up because they got another job and think, “I don’t need this anymore.”

DG: Reprisal continues to be a major problem for agencies. Based on the cases before you, what can agencies do best to limit reprisal?

KS: Well, let me tell you: It’s not just the Federal government. It’s across the board. It’s the number one filed alleged basis of discrimination in the United States. Hands down. Those are the most claims. It’s a persistent thing.

It’s not just at EEOC and in the discrimination context. The NLRB has retaliation provisions. Department of Labor, OSHA has provisions, as well.

Back in 2016, the EEOC put out broad guidance and tried to define reprisal very broadly. It’s treating employees differently because they complained about discrimination on the job, filed a complaint, participated in any manner in a charge or proceeding — theirs or someone else’s. Second, something negative has to happen

to your employment, generally, in addition to just filing charge of discrimination. What happens if you’re resisting sexual advances? Or you requested an accommodation for disability or religion? Did your work situation change in an adverse way once that occurred?

For agencies, it’s really just maintaining plain language anti-retaliation policies.

We simplified the definition in our guidance available to the public. Federal agencies’ policies and retaliation reporting procedures must do the same, just make it simple. Make it so plain language with examples of what is retaliation and what is not retaliation.

If you are fired or demoted because you are not performing well at work, you’re not hitting your goals, or just not doing the job, that’s not retaliation. But, if you are fired or demoted because you were sexually harassed or filed a charge, that’s a different story. Make it clear: This is retaliation, and this is not.

And it must come from the top. We saw this really changed with the MeToo movement. When the movement happened, it was national news. Harvey Weinstein and offending CEOs were fired. New management teams came in: What was the first message they were saying? From that CEO level, they were saying: “We’re not going to tolerate this harassment. We’re willing to fire the CEO. We’re willing to fire our rainmakers, our best performers if they are sexually harassing. And the same needs to happen here. In cabinet agencies, it needs to come from the top. It needs to come from the highest career SES, the cabinet secretaries themselves, the leaders of the agencies. This is just not going to be tolerated. We have an open-door policy. If you feel like you’re being harassed, here’s the mechanism we put in place in our agency. If you don’t feel comfortable going to that, here are alternate ways to report harassment, so you’re not dealing with the harasser or the direct manager. You can go to neutral HR or the civil rights office in your agency and not have that fear of reprisal.”

DG: Policies are important.

KS: Let’s make them easier to understand, and let’s have that commitment come from the top. So that from very first day, they know the leader of the agency is against this and it’s part of the culture at this agency.

That’s my best advice.

DG: Federal agencies often require a bar on reemployment as a term in an EEO settlement agreement for an employee who no longer works at the agency and filed an EEO complaint. Does the EEOC have a position on whether such clauses constitute retaliation per se?  

KS: Yes, the EEOC has dealt with this. And the Supreme Court has dealt with this in the private sector. They basically said: Look, it’s a contract and the parties in the settlement agreement or consent decree or however you get there, if you agree to this no re-hire policy, if it’s very clear and if it’s a legitimate nondiscriminatory reason for refusing to re-hire, then it’s valid. That is the key.

Even if settling claims of discrimination, if you’re putting in no-hire provisions, they should be explainable, and if it is later challenged, you may have to be able to provide the reasons the no-re-hire position was related to legitimate nondiscriminatory reasons. Basically, it’s a contract claim. However, Courts will not enforce contracts about future discrimination. So even in the event you have a no-rehire clause and you re-hire the individual, you cannot waive future claims of discrimination.

The EEOC dealt with this in 2003 in a Federal sector opinion [Jablonski v. NLRB, EEOC Appeal No. 01A23730]. That was a case of an employee against NLRB. We upheld that a no re-employment clause in a settlement agreement with a former employee was valid. The agency also declined to impose a reasonable limitation on the no-rehire period.

Like the Supreme Court, the EEOC finds that settlement agreements are contracts between the complaint and the agency. If the intent of the party is in the contract, that’s what’s going to control.  We rely on the plain meaning of the contract.

Where confusion arises when settling with current employees is waiving future claims of discrimination, including retaliation that has not yet occurred. Even if you had that no re-hire, and agency goes and prevents you from getting another job, that’s still retaliation.

DG: What impact did the pandemic have on employees with disabilities?

KS: Employees with existing disabilities have been largely impacted by the pandemic. For instance, they had a disability before and now the disability is more severe and now they need additional accommodations. Or, you have Federal workers who weren’t disabled and now need those accommodations because of long haul COVID.

So many Federal workers who were not disabled suddenly have become disabled post-COVID and we’re seeing that across the board, related to long haul COVID.

We’ve given out a lot of guidance on this to help Federal agencies make that determination: What is a disability now post-COVID? What is long haul COVID? Our guidance has very specific examples of the types of long haul COVID, like needing supplemental oxygen, having heart-related issues, severe fatigue, heart palpitations versus what is not COVID — a cold, congestion, sore throat.

I think the Federal agency EEO/Accommodation manager will be flooded with these requests, especially as more employees come back to the office.

[Editor’s note: Join FELTG for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency on Nov. 17, from 1-3 pm ET.)

DG: Technology is accelerating at such a fast pace, especially workplace technology. Is accessibility to this technology keeping up the same pace?

KS: In the private sector, companies are rapidly implementing technology like artificial intelligence to make decisions about their workforce, whether to recruit, whether to hire. The future is now.

A big concern is that workers with disabilities have the same ability to use these platforms with their disability as they would any kind of screening test. Federal agencies have had these assessment tests for decades, and a lot of them are going online. The agencies know they must accommodate both applicants and employees who are being subject to these tests.

The technology can certainly affect workers with disabilities when it comes having to do your interview online or having to take your test online.

Make sure these newer technologies don’t discriminate against any of the categories we enforce here, especially workers with disabilities. Outside of retaliation, disability discrimination is our number one cause of action in the private sector. Employers using these technologies should go through the same interactive process on the front end for applicants and during the life cycle, so employees feel comfortable asking for requests without fear they’re not going to get the job because they’re not using the program the employer spent a lot of money on buying and implementing.

With artificial technology in the ADA space, there are three takeaways:

  1. It needs to provide reasonable accommodation.
  2. The tool can’t intentionally or unintentionally screen out employees with disabilities.
  3. Make sure these tools are not seeking disability-related inquiries or not medical examinations and relevant to the job.

These are the same principles we know for reasonable accommodation, but they can’t be lost here. With HR technologies, you can’t have that set-it-and-forget-it approach.

Gephart@FELTG.com

Why F-Words Get Agencies in Trouble

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By Deborah Hopkins, October 18, 2022

For as long as we’ve been a company (since 2001, in case you’re wondering), FELTG has taught agency reps and supervisors that if you’re charging misconduct that begins with an f-word (falsification, fraud, false _______, etc.), you’d better make sure you have evidence the employee intentionally provided false information. Otherwise, you will lose the charge, which often means losing your case.

So, it was no surprise to see a recent MSPB decision, Conaway v. Commerce, CH-0752-16-0166-I-2 (Sept. 22, 2022)(NP), that overturned an agency’s discipline because of an f-word the agency couldn’t prove. The real heartbreaker is that this case cost the agency eight years and more than a quarter million in back pay, thanks to the lack of quorum at the MSPB. And to be fair, it also dragged out for eight years on the appellant’s side which is no picnic either.

In Conaway, the agency removed the appellant, a Census Bureau GS-6 Field Supervisor, on one charge of providing false information regarding Census Bureau questionnaires, with one specification regarding a March 24, 2014, interview.

The MSPB equates this type of charge to one of falsification. In order to have a falsification charge upheld, the agency must prove the following by preponderant evidence:

  • the appellant supplied incorrect information; and
  • did so knowingly with intent to defraud, deceive, or mislead the agency for her own private material gain.

Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014).

The basic premise of Conaway’s misconduct was that she entered information into a survey form she had obtained in a months-earlier interview with a questionnaire respondent, even though procedures required her to ask the respondent questions and enter information in the current interview (held March 24, 2014). At hearing, Conaway presented unrebutted testimony that the respondent had provided her with information during an interview weeks prior to the March 24 interview, and had told her that “nothing had changed” during her phone conversation with the respondent about the March 24 questionnaire.

Here’s how the case fell apart for the agency, according to MSPB:

[While] the record clearly established that the appellant entered information into the survey …that she did not obtain from the March [24], 2014 interview, the agency has not provided any evidence suggesting that this information was incorrect, as required to prove a charge of falsification. To the contrary, it is likely this information is correct given the appellant’s unrebutted testimony…

Moreover, even if this information was incorrect, we find that the appellant had a reasonable good faith belief in the truth of the information, which precludes a finding that she acted with deceptive intent. Therefore, we find that the agency has not proven a charge of falsification.

Although the appellant’s handling of the … survey may have been contrary to established procedures or otherwise improper, the agency did not assert such a charge against her. Rather, as stated above, the agency charged her with providing false information … The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency and may not substitute what it considers to be a more adequate or proper basis. Therefore, we cannot sustain a charge of failure to follow survey procedure against the appellant, and such failure cannot serve as a basis to sustain a charge of falsification. In light of the foregoing, we reverse the initial decision in part and do not sustain the appellant’s removal. (Citations omitted.)

I talked to FELTG Founder Bill Wiley about this case. He believes the agency made two notable mistakes, both of which FELTG addresses in our training:

  1. If you charge The Effing Word (Falsification), you have to prove, inter alia, that the information provided is false. That’s straight from the Charges day of MSPB Law Week, next held December 5-9. Here, although the employee did not follow procedures, the actual information provided was in fact true. Therefore, bye-bye Effing charge.
  2. The agency did a decent job of describing how the employee failed to follow procedures. However, they did that in some sort of “Background” section rather than in the “Charge” section of the proposal. Agency representatives who attend FELTG’sMSPB Law Week and learn not to waste words in a Background section hardly ever have to tell payroll to cut a backpay check for over a quarter of a million dollars.

We hope this helps you think twice before the next time you charge an F-word. Lots to learn from these new Board cases, and lots of lessons re-affirmed too.

The Good News: With Weingarten, The Law Is Enough!

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By Ann Boehm, October 18, 2022

Once again, I’m writing about the Weingarten union representation right. This time I want to emphasize something that may seem overly obvious: Stick to the law!

Let’s start with a refresher about the statutory language. The Weingarten right is established in 5 U.S.C. § 7114(a)(2)(B).  To trigger the Weingarten right, there has to be an investigation by the agency. That typically means a misconduct investigation. If there’s no investigation occurring, you can pretty much stop there—no right to a union representative.

If there is an investigation, the next consideration is whether the representative of the agency is examining a bargaining unit employee, or to put it another way, asking questions. No questions, no right to representation.

If there is an investigation, and there is an examination of a bargaining unit employee by an agency representative, the employee still has to reasonably believe that disciplinary action against the employee could result from the examination in order for the employee to have a right to union representation in that meeting. No reasonable fear of disciplinary action, no right to union representation.

One big part of the statutory Weingarten right is this: The employee has to request a union representative. The agency representative has no statutory obligation to notify the employee of their right to representation (other than the agency’s an obligation to inform employees of the right annually). It’s up to the employee to seek the representation. No request for representation, no right to representation.

Here’s a problem I discovered during a recent training session. An attendee said, “Our attorneys strongly suggest we advise the employees of their Weingarten right.” Good heavens! Why in the world would that be a good idea? The statutory language makes it crystal clear that the agency representative does not have any such obligation.

Another way the agencies and unions go beyond the statutory language is by negotiating into the collective bargaining agreement an obligation on the agency to inform the employee of the Weingarten right before questioning an employee during an investigation. Good heavens! Why in the world would that be a good idea? Congress did not require it, so why agree to more than what Congress established in section 7114(a)(2)(B)?

There is really no practical reason to go beyond what the Statute says. In the worst-case scenario, if the agency proceeds with an interview without allowing the union representation, a typical unfair labor practice remedy would be to order a re-do of the interview with a union representative present (the “interview remedy”). The interview remedy may not even be necessary. A 2018 case from the FLRA indicates an interview remedy is not necessary if the Weingarten violation did not negatively impact on the outcome for the employee. U.S. Dep’t of Justice, FBP, FCI Englewood, 70 FLRA 372 (2018).

In FCI Englewood, the employee tested positive for marijuana on a random urinalysis drug test. The agency investigated his drug use, and a urinalysis retest confirmed the original results. When the agency interviewed the employee about the drug test, he requested a union representative. A union representative attended, but the agency investigator told the representative to stop asking questions. The employee then admitted to using marijuana. The agency removed the employee from his position, and the union filed a grievance challenging the removal. The arbitrator reduced the penalty to a 14-day suspension.

The union also filed an unfair labor practice charge, claiming violation of the Weingarten right based on the agency’s refusal to allow the union representative to participate actively. The General Counsel filed a ULP complaint. The Administrative Law Judge found the agency committed a ULP, and ordered an interview remedy.  Id. at 373.

The agency challenged the ALJ’s interview remedy, claiming that it would be a duplication of effort and resources, and the FLRA agreed. The FLRA explained that the interview remedy would be appropriate if allowing the union representative’s participation would reasonably suggest no discipline would have been imposed. But in this case, “there is no dispute that some type of discipline was justified” because the employee tested positive for marijuana use. The FLRA set aside the interview remedy. Id.

The law provides enough protection for the employee. Agencies, you do not need to go beyond that. And that’s Good News! Boehm@FELTG.com

‘Government Careers are Retirement Schemes for the Incompetent’

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By William Wiley, October 18, 2022

Oh, did you like that one?

Well, how about this: “Federal employment is basically welfare with an attendance requirement, but not a very strict one.”

Are you offended yet?

No?

Well you just might be if you read any more of the hundred or so comments relative to a recent media piece on the cable network MSN, entitled Afraid of Being Fired? Consider Working a ‘Forever Job’ with the Federal Government.

If you read the article in its entirety, you probably won’t find anything new. It’s a word salad of labor/employment terms, put together to gain the attention of readers who are predisposed to have a negative view of Federal civil servants. Take several labor/employment terms, throw them together in a scary way and voila! you have an article that makes people angry. And anger gets clicks. One of the saddest realities of life is that a lot of people would rather read something that gets them angry or reinforces a predisposition that they already hold rather than read something that might provide new information to consider.

This human tendency is nothing unusual. I remember a psychological study from the 1970s that looked at the viewing habits of people the weeks after they had bought a new car. Most people tended to pay closer attention to and view ads for longer if they were advertisements for the make of automobile that they had just bought even though they had already committed to that brand. They weren’t looking for new information for a future purchase. Rather, they were looking for confirmation that the make of car they had just bought was as cool as they thought it was. Psychologists call this tendency “confirmation bias,” a term you might have picked up on in your undergrad “Introduction to Psychology” course (if you hadn’t still been recovering from your party-full weekend).

Although reinforcement of a previously held belief isn’t a bad thing in itself, there is a dark side if you think about it. When someone spends time reading things that they agree with, they may forgo spending additional time to read something else with which they do not agree that could be helpful. If you bought a new Ford and then read car ads only about Fords, you might neglect to read that article that provides evidence that a Toyota is a better long-term investment. That would be helpful information for you the next time you buy a car.

With this background in human behavior, how should those of us who believe that the Federal civil service is an honorable, hard-working, and honest calling respond when someone confronts us with this kind of misinformed nonsense? Well, being experts at firing bad people from government, and with a touch of background in psychology, we here at FELTG humbly suggest the following:

  1. As a society we want it to be harder to fire a civil servant than a typical employee in the private sector. That’s to protect us citizens from a government composed of partisans interested mainly in their personal philosophy. Try out this thought experiment: If you are a conservative, do you really want a government filled with a bunch of socialist liberals giving away our tax dollars to dangerous undocumented immigrants? Or, if you are a liberal, do you really want a government filled with a bunch of fascists giving away our tax dollars to fat-cat billionaire polluters? If we did not have extra protections for career civil servants, every time we changed from a liberal to conservative White House, we could expect a significant change from one biased civil service to another biased civil service. The extra protections provided by law to Federal employees is intended to keep that sort of patronage from happening.
  2. Career civil servants have already proven themselves to be above average employees, theoretically among the best and the brightest. First, they have won a merit-based competition for their jobs. Then, they have survived probationary periods (during which they can be summarily dismissed) that are much longer than probationary periods in the private sector: one, two, and sometimes of even three years in length. After surviving these hurdles, a claim that they can no longer do a good job should receive scrutiny. They have proven themselves to warrant continued employment. There should be proof when it is claimed that they do not.
  3. These extra-protections that career civil servants have by law are not really that onerous for an employing agency IF the agency knows what it is doing. Here is all that it takes to fire a bad government employee:
    • The supervisor has to tell the employee what to do. That can be done by giving the employee performance standards or work instructions. There’s no particular form this notification must take. It can be as simple as an email or even oral direction. It would be hard to argue that an agency should be able to fire an employee for not doing something that the supervisor never said had to be done.
    • If the employee makes a mistake and does not do what the supervisor says needs to be done, the supervisor has to tell the employee about the mistake and usually has to give the employee the chance to behave correctly. This can be done through the initiation of either progressive discipline or a performance improvement plan. Unless the employee’s mistakes are causing significant harm, sometimes this might take two warnings. But hardly ever any more than that. Yes, this is more than is required in the private sector where an employee can be fired for a first offense of coming to work five minutes late. But given the goal of our society of having a neutral, non-political civil service, this extra step should not be a big deal.
    • If the employee continues to make mistakes, the supervisor has to give the employee written notice of what has been done wrong and allow the employee to offer a defense or explanation. Once the supervisor issues this notice, the employee must be paid for another 30 days, although there is no mandate that the supervisor keep the employee in the workplace to make even more mistakes. When the law was passed to require this 30-day paid notice period, one of the sponsors of the bill said that 30 days of salary would act as a type of severance pay, allowing the individual some time to find another job. You and I may not think such largess is warranted, but we still would need to concede that these last couple of pay checks are not a significant bar to firing the employee.

That’s it. The employee is now off the government payroll and once more a private citizen. There are a few exceptions and twists to the above, e.g., sometimes the supervisor needs to give the employee only 7 days of a paid notice period instead of 30, or maybe the harm caused by the employee is so significant that there is no need to give the employee a second chance. However, in most situations, not much different from the above is required from one case to the next.

Once the employee is fired, the agency may have to produce evidence that the removal was justified. And for Federal civil servants, “justified” means that it is either probable or possible that the individual really was a bad employee. These are significantly lower burdens of proof than the oft-cited “beyond a reasonable doubt” proof burden required in criminal cases. If a supervisor cannot come up with either preponderant or substantial evidence of bad employee performance or conduct, then the protections against unfair treatment for Federal employees do their job and the employee is entitled to be restored to the government payroll.

In 1883, Emma Lazarus wrote: “Give me your tired, your poor, your huddled masses yearning to breathe free.” In recognition of the 44th anniversary this October of the Civil Service Reform Act of 1978, the law that defined these civil service protections above and made it relatively easy to fire a bad government employee, with apologies to Ms. Lazarus, I would say, “Give me your incompetent, your lazy, your no-good civil servants who think they are on welfare in a forever job.” Using the procedures in the CSRA, a FELTG-trained practitioner can take it from there.

So, if I’m so darned smart, why don’t I do that for you? Hey, I’m retired! Ain’t nobody got time for that. Wiley@FELTG.com

Know the Warning Signs of Employee Stress and What You Can Do to Help

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By FELTG Staff, October 18, 2022

Project deadlines, that one co-worker who rubs you the wrong way, work-life balance, worries about keeping your job. Sometimes, the stress of work can feel overwhelming. Even with a low unemployment rate, which allows workers more choice in job selection, people are feeling more stressed out than ever when dealing with workplace issues.

We sat down with Shana Palmieri, LCSW, FELTG Instructor, and Chief Clinical Officer and Co-Founder of XFERALL, to find out how managers can help employees ease the tension they have at work.

FELTG: What are some of the more frequent causes of workplace stress?

SP: Reports of stress in the workplace reached an all-time high in 2021 at 43 percent, up from 31 percent in 2009 and 38 percent in 2019.

The impact on employees and employers is significant. Workplace stress leads to employee disengagement.

Current employee disengagement rates are at 50 percent, resulting in a significant loss of employee productivity. Job-related stress is estimated to cost United States Industry $300 billion annually in diminished productivity, absenteeism, and accidents. The main causes of workplace stress are:

  • 39 percent report their workload
  • 31 percent report interpersonal issues/conflict in the workplace
  • 19 percent report juggling work and personal life
  • 6 percent report job security

FELTG: How can supervisors and managers help employees deal with workplace stress?

SP: Based on all-time record highs of employee stress in the workplace and disengagement, it is critical for employers to focus on employee well-being and engagement.

Key recommendations include:

  • Add employee well-being to executive dashboards.
    • Key measurements may include employee engagement, economic cost, turnover rates, productivity, healthcare and disability costs, company reputation, employee attitudes and well-being.
  • Formalize and prioritize employee well-being programs.

It is important to assess and address potential risk factors for employee stress and disengagement:

  • Poor team cohesion
  • Lack of clarity in strategy or objectives
  • Insufficient employee support
  • Hostile work environment, bullying, harassment
  • Employees having little or limited control over their work
  • Poor management and weak communication styles
  • Inflexible work hours/limited PTO
  • Poor safety policies/health risks at the workplace

Employers will improve well-being and reduce disengagement by proactively creating a workplace culture that promotes physical and mental well-being and implementing practices that drive employee engagement.

FELTG: What are some of the warning signs managers and supervisors can look for in  employees which might indicate employees need professional help?

SP: High levels of stress can lead to burnout, mental health conditions and substance abuse. Some warning signs employees may need professional help include:

  • Increasing use or abuse of substances
  • Increased social isolation
  • Increased agitation, low frustration tolerance (can be a sign of depression)
  • Low mood with apathy, difficulty making decisions, tearfulness
  • Increased anxiety
  • Reports or comments concerning suicidal thoughts
  • Extreme fatigue in combination with significant changes in mood
  • A significant change in work productivity and/or decreased quality of interactions in interpersonal relationships

If an employee makes threats to harm themselves or others, it is important to obtain immediate assistance available by calling 911 or the 988 crisis line.

[Editor’s note: For further insight on how to help your employees deal with stress, join Shana on Thursday, March 23, 2023 from 1:00-2:00 PM ET for Grappling with Employee Stress in the Workplace: Improve Performance and Morale in Your Agency.] info@FELTG.com