Explaining the Nexus Requirement in Misconduct Cases

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By Deborah Hopkins, May 16, 2022

One of the considerable ways in which Federal employment is different from at-will employment, is that the Civil Service Reform Act allows a Federal agency to fire a career employee only for cause (with a few exceptions we won’t get into today).

An adverse action may be brought “only for such cause as will promote the efficiency of the service.” 5 USC 7513(a); 5 CFR 752.403. This is where we get the nexus requirement. A nexus is defined as a connection or a link.

The specific charges, no matter how they’re drafted, are notice concepts that relate to due process, but efficiency of the service is the legal criteria. The agency needs to prove two things in an adverse action:

  1. The reason, charge, and specified conduct (by the employee) occurred, and
  2. The action (taken by the agency) promotes the efficiency of the service.

Miller v. Dept. of Interior, 119 MSPR 331 (2013)

In law, as well as logic, there must be a clear and direct relationship demonstrated between the articulated grounds for an adverse personnel action and either the employee’s ability to accomplish his/her/their duties satisfactorily or some other legitimate government interest promoting the “efficiency of the service.” Doe v. Hampton, 566 F.2d 265 (D.C. Cir. 1977).

It’s dangerous for agencies to assume the nexus is clear. In most cases, even if an employee engages in egregious criminal conduct, the agency should not rely merely on speculation or an unfounded assertion that the misconduct impacts the efficiency of the service; the agency has the burden of establishing the nexus by specific evidence. Douglas v. Veterans Administration, 5 MSPB 313, 334 (1981); Allen v. U.S. Postal Service, 2 MSPB 582, 584 (1980).

If the misconduct occurs on duty, or using agency resources, it is much easier for the agency to show nexus. MSPB has said it is well-settled that there is a sufficient nexus between an employee’s misconduct and the efficiency of the service when … the conduct occurred at work. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP), citing Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987); Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006). But what if the misconduct occurs off-duty?

The MSPB generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service:

  • a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct;
  • a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers’ job performance, or management’s trust and confidence in the employee’s job performance; and
  • a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. \

See, e.g., Johnson v. Department of Health and Human Services, 22 M.S.P.R. 521, 526 (1984); Merritt, 6 M.S.P.R. at 590-606; Gallagher v. U.S. Postal Service, 6 M.S.P.R. 572, 576-77 (1981).

Here’s an example where the agency properly established nexus: The agency charged the appellant with conduct unbecoming and removed him after it learned the appellant had consensual romantic relationships with three subordinates. Even though no agency policy prevented such relationships, the Board upheld the removal because the agency showed the relationships affected his supervisory role, his interaction with his subordinates was negatively affected, and the appellant’s supervisor lost confidence in the appellant’s judgment. Robacker v. USDA, Fed. Cir. No. 2009-3289 (July 9, 2010)(NP).

And here’s an example when the agency did not properly establish nexus: An FBI agent filmed sexual encounters of himself and another agent without her knowledge. The FBI removed the appellant and using the concept of “clearly dishonest” behavior to establish nexus between the misconduct and the efficiency of the service. The Federal Circuit found the agency’s nexus argument to be too vague. Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009).

Nexus is too important to skip over, so join FELTG and instructor Bob Woods on June 7 for the 60-minute webinar Got Nexus? Accountability for Off-duty Conduct. Hopkins@FELTG.com

There’s a Lot to Learn From This Year’s FEVS Results

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By Michael Rhoads, May 16, 2022

The results are in! Every year, OPM takes the pulse of what Federal employees are thinking and catches the latest trends. It’s a great chance for agencies to take pride in what they are doing well, recalibrate what needs to be fine-tuned, and look for blind spots that may have eluded their attention.

So, what can we learn from this year’s Federal Employee Viewpoint Survey (FEVS)?  Quite a lot.

Let’s start with what agencies are doing well. The highest percentage level of agreement, at 88%, was “Employees in my work unit meet the needs of our customers. (Q. 14).” Most Federal employees know their colleagues work hard every day for our nation. Supervisors should also be given proper recognition as well: 86% of respondents felt their “supervisor treats me with respect. (Q.29)” and 82% feel “my supervisor listens to what I have to say (Q. 28).”

What could be fine-tuned? Employees seem to receive a mixed message about work-life balance depending on the messenger. Eighty-four percent report that “my supervisor supports my need to balance work and other life issues. (Q. 25).” However, only 60% believe “Senior leaders demonstrate support for Work-Life programs. (Q. 38).”

But this is not a time to rest on our laurels. At 42%, the second lowest percentage level of agreement is “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve. (Q. 10).” This is a common theme we here at FELTG address in many of our courses. However, managers can – and should – take action.

It is our mission here at FELTG to give supervisors the appropriate tools to handle poor performers.  If you are a supervisor who could use help dealing with poor performers at your agency, FELTG’s flagship course UnCivil Servant will take you step by step through the process of dealing with unacceptable performance. Join us on Tuesday, May 24 and Wednesday, May 25 from 12:30 – 4 pm ET each day.

Another important takeaway I found in the FEVS is employees want better recognition for their job performance, and “differences in performance” compared to their co-workers. Better communication is also on the minds of employees since only 59% report “Managers promote communication among different work units (for example, about projects, goals, needed resources). (Q.35)”

One thing is relatively clear in reviewing the FEVS, telework makes people happy. Looking at the individual questions there was a positive upward trend in responses from 2017-2020. The 2021 FEVS responses declined in almost every case.

I can hear the statisticians out there yelling, “correlation is not causation!”  However, when almost every metric comes down year over year, I’m willing to take the educated guess a decline in telework might be the culprit.

To back up my assumption, the telework status of ‘I telework every workday’ started at 2% in 2019, rose to 47% in 2020, and came down to 36% in 2021 as reported in the FEVS. OPM also came to the same conclusion, “Telework is positively related to higher scores on Employee Engagement and Global Satisfaction and declines in telework could be linked to a decline in these scores.”

What is clear is that change marches on in our society. We’re still coming to terms with the drastic changes everyone in the world was forced to face over two years ago. When it comes to dealing with changes to Federal Employment Law, FELTG is here to assist you.  Stay safe, and remember, we’re all in this together. Rhoads@feltg.com

The New Board Offers a Lesson on Conduct Unbecoming

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By Deborah Hopkins, May 9, 2022

As new cases start coming out of the MSPB after its 5-year wait for a quorum, cases containing lessons with broad applicability to Federal agencies are still few and far between. But a recent decision, involving an appellant’s removal based on conduct unbecoming a Federal manager, caught my attention. The agency charged the employee with 18 specifications. After a 5-day hearing, the Administrative Judge (AJ) found that the agency failed to prove any of the specifications supporting the charge, and ordered the agency to reinstate the employee. The agency filed a PFR.

In its decision, the Board reiterated that a charge of conduct unbecoming has no specific elements of proof; the agency establishes the charge by proving the appellant committed the acts alleged under this broad label. Then it turned its attention to the specifications, a number of which the Board said did evidence conduct unbecoming, and several that did not. Let’s take a look.

The below specifications are conduct unbecoming.

  • During a meeting with another agency employee, the appellant held up a copy of an email the employee had sent him, which was seeking clarification about pay raises, and the appellant said, “[L]ooking at this email … I found it [expletive] offensive.” (FELTG’s best guess is that the expletive started with the letter “f” and rhymes with “trucking,” which we confirmed after reading the initial decision. And with that please, new MSPB, would you consider ending the practice of sanitizing expletives in your opinions? Let the words speak for themselves.)
  • In a meeting with a fellow manager about outsourcing information technology services, the appellant told the manager about a specific employee who had filed an EEO complaint in order to illustrate that one advantage of outsourcing is that the agency does not have to deal with personnel matters such as EEO complaints.
  • During a meeting with several colleagues, the appellant placed his hand over a Project Director’s mouth to prevent him from making further comments.
  • The appellant intimidated two attorneys who wrote a draft memo for the Director and told them that issuing the memo would be a “career ender.”
  • After he received a Level 3 performance rating, the appellant asked the HR Director to negotiate with the agency’s Acting Director on his behalf for a higher rating so that he would receive a bonus, “thus placing the HR Director in the untenable position of either refusing his supervisor’s request or negotiating with his former second-level supervisor for a better performance rating for his supervisor.”

These specifications are not conduct unbecoming.

  • During a meeting with the EEO Director, the HR Director, the HR Deputy Director, and agency attorneys about anonymous EEO complaints, the appellant commented that employees should not be allowed to make anonymous EEO complaints and that they should have more “skin in the game.”
  • The appellant told the agency’s EEO and Diversity Director and an EEO Counselor that he did not believe any of the complaints about the HR Deputy Director, and that if there were any more complaints about her there would be serious consequences. (While the Board found this behavior troubling, the agency’s lack of discipline of the employee when he made the comment several years earlier meant they failed to prove this specification, because the agency “merely [took] “the remedial step of advising the appellant of the legal and policy importance of allowing employees to file anonymous internal complaints.)
  • The appellant stated in front of a group of employees that a fellow senior-level employee should be put on a PIP.
  • The appellant told a fellow manager that the allegations in her grievance against the agency’s CIO would be reflected in the CIO’s performance evaluation.
  • The appellant “became agitated” when the Acting Director questioned him about a workplace matter.

Not all 18 specifications are listed; a number of specifications the AJ found the agency did not prove were left undisturbed because of the AJ’s credibility assessments of the evidence at hearing. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP).

Quite a lot in a non-precedential case, wouldn’t you say? We’ll be discussing a lot more takeaways at the July 20 virtual event Back on Board: Keeping Up with the New MSPB. Hopkins@FELTG.com

And Now a Word With … OPM Director Kiran Ahuja

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By Dan Gephart, April 25, 2022

A key milestone in the Biden Administration’s Diversity, Equity, Inclusion, and Accessibility efforts passed by quietly last month, as the deadline passed for agencies to submit their DEIA strategy plans to the Office of Personnel Management.

With the passing of the deadline, we reached out to OPM Director Kiran Ahuja to ask: Now what?

“OPM will be leading efforts to provide recommendations and technical assistance support to agencies as they implement those plans,” Ahuja said. “We are hoping to see agencies demonstrate a well-coordinated and implemented vision and strategy of DEIA priorities, policies, and practices. The agency should show how it is working in a collaborative effort with leadership and accountability at the highest levels of agencies, cross-agency partnerships, data-driven approaches, transparency, and resource investments to ensure success. Ideally, agencies should be able to show progress in executing their DEIA strategic plans, as well as monitor progress and make appropriate adjustments.”

Director Ahuja took time recently to answer our questions about DEIA efforts, recruitment efforts, and telework.

DG: How does the creation of the Chief Diversity Officer position impact the roles of each agency’s EEO office?

KA: Earlier this year, OPM released guidance encouraging federal agencies to appoint Chief Diversity Officers – or CDOs – who will work with senior leaders and others to elevate DEIA work across their respective agencies, including identifying new sources of talent through engagement with underrepresented communities. This includes, but is not limited to, veterans, people of color, persons with disabilities, older workers, individuals who live in rural communities, LGBTQ+ individuals, first generation professionals, and others who have been denied opportunities. To leverage expertise and maximize impact, we’re also looking at convening a CDO council for engagement across the federal government.

While the Chief Diversity Officer (CDO) and EEO Director each have distinct responsibilities, they are also intended to be complementary. They are each responsible for advising the agency head on matters related to different aspects of DEIA. EEO and CDO communities work together to analyze data to assess progress, evaluate root causes and build evidence on key questions regarding DEIA initiatives.

Federal agencies are being asked to establish Chief Diversity Officers in addition to EEO Directors. The EEO Officer is part of the existing DEIA infrastructure within federal agencies. The DEIA infrastructure generally includes the offices of equal employment opportunity, human resources, budget, human capital, chief data, and information management.

DG: Other than the actual virus, what is the biggest obstacle for agencies implementing re-entry plans?

KA: Throughout the pandemic, more than two million civilian (non-postal) Federal employees have been hard at work, protecting our country, providing critical services, and combatting COVID-19 and its impacts.

We now have the tools in place to allow us to safely increase the work we do in person together. As we come back together in our workplaces, we must build on the innovation and technology that we put to work over the last two years to make us even more efficient, resilient, and effective.

Recently, you’ve likely noticed that public-facing federal government offices have been open for longer hours. There are more in-person appointments available for those who need them, more walk-up services, and more in-person interactions. The federal workforce has made it clear that they are extremely resilient and hardworking, even in the toughest of unprecedented times. The federal government will continue to embrace workplace flexibilities as we enter this new hybrid work transition.

DG: 45 percent of all Federal employees teleworked in 2020 and I imagine it was a similar number in 2021. Is that a reasonable figure in non-pandemic times?

KA: I think it’s important to remember here that a lot of our colleagues continued to work in-person during the pandemic. Many showed up in person for the American people because their specific job is tied to a physical location.

Others adapted quickly to working from home, and what we found is that workplace flexibilities like remote work and telework were key to ensuring mission-critical services continued for the American people. We are also learning that greater telework and remote work makes the federal government a more competitive employer as most sectors embrace workplace flexibilities in post-pandemic work environment.

We are currently in a phased transition into a hybrid work environment that combines some in-office work with some telework. This is all dependent on if the employee’s role is conducive to telework, of course.

Our goal is to couple the efficiency and work-life benefits that telework offers with the important benefits of in-person interaction that have been on hold for so many because of this pandemic, like direct person-to-person interaction and collaboration.

DG: What specifically needs to change for agencies to be able to compete more effectively for top talent – and retain them?

KA: The federal government wins on mission – if you want to see the positive impact of your work on the world around you, there’s no better place to build a career. Where else can you find people curing disease, combatting climate change, and landing rovers on the surface of Mars, all in the same workforce? And when you’re in the business of achieving the unachievable, you need cutting-edge skills, fresh perspectives, and people who are hungry to have an impact.

OPM is doing a number of things to meet that need and help recruit early-career professionals to the federal workforce:

  • We created new hiring rules that allow agencies across the government to hire post-secondary students and recent college graduates for positions that pay up to $75,000. This opens the door to so many people who may not have long resumes to point to, and to people who would face financial hardship if their only option was an unpaid internship.
  • We’re looking into ways to reform long-standing opportunities like the Pathways Program, which offers internships and fellowships, including the prominent Presidential Management Fellowship.
  • And we’re renewing partnerships – and in some cases, forging new ones – with four-year colleges, community colleges, trade schools, and Minority Serving Institutions (MSIs), including Historically Black Colleges and Universities (HBCUs), Hispanic-Serving Institutions (HSIs), Asian American Native American and Pacific Islander-Serving Institutions (AANAPISIs) and schools with large Tribal student populations.

Targeted recruitment — whether early or mid-career talent — and a focus on workplace flexibilities will help us recruit and retain a strong workforce. We see the federal government as the model employer. The federal government is the largest employer in the nation, with well over two million civilian employees working in every state across the country. The policies we set for our workforce and the way we treat our employees matters, and it matters to countless more who are impacted by the example we set. We want every worker in every sector across our economy to see how we treat our employees in the federal government and understand that they deserve nothing less at their workplace, too.

Gephart@FELTG.com

And Now a Word With … FLRA Chair Ernest DuBester

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By Dan Gephart, April 18, 2022

Ernest DuBester holds the Federal Labor-Management Relations statute close to his heart.

Literally.

During our recent conversation, the FLRA chairman pulled a mini printed version of the statute from the left breast pocket of his shirt several times to emphasize the points he was making. Those close to the chairman know he likes to carry that Pocket Statute with him everywhere he goes.

As Chairman DuBester’s nomination for another FLRA term remained stuck in committee, he took time to discuss the FLRA’s plans for returning to the workplace, the status of the Authority union, the legal issues that he’s most looking forward to addressing, and more.

[Editor’s note: Join FELTG for FLRA Law Week May 9-13 to get up to date on all things federal labor relations. Sessions will run from 12-4 pm each day. Early bird pricing ends this Friday, so register now.]

DG: What has been the biggest challenge the agency has faced during the pandemic? And what did you learn from it?

ED: The pandemic has had a huge effect on our society. And it has certainly had a big effect on the FLRA. From Day One, and it continues today, my focus has been on employee well-being, employee health and safety, but also combined with what I call the appropriate and requisite ability to run an agency that fulfills its mission. That has been the hard thing.

There were a lot of things that were not only my preference to do in person, but that I think are actually done better in person. (When the pandemic hit), they had to be done virtually or remotely. Converting to mostly an all-virtual workplace is huge.

For example: One of our responsibilities, which stopped for over three years during the Trump Administration, is that we handle unfair labor practice cases, and we have hearings. Those are run by our Regional Offices and Office of General Counsel personnel. We haven’t been able to do those in person.

Similarly, and related to that, our administrative law judges have the responsibility then with respect to unfair labor practices. They hold ULP hearings at a later stage. Those decisions may come up to me and my colleagues, the other members, on what I’ll call appeal.

The administrative law judges have had to move to virtual hearings. And that’s a big thing, not only practically and logistically. It really has a huge bearing on the way you relate, interact, and share information.

I’m all about effective communication. To me, it’s the secret of everything. It’s certainly the secret to effective management-labor relations, which are based on relationships and human behavior, in particular. There’s no doubt, and I’ll say this emphatically: The ability to communicate and solve problems and hopefully to address and resolve disputes more effectively requires effective communication. And you can’t do it as well on a computer, or telephone or email.

Our employees are dedicated employees. They have gotten, in some respects, accustomed to working remotely, and to some extent enjoy the benefits. We’re all human. We don’t like to commute to work. So, we’re going to have to practically work through how best to harmonize those kind of work/life issues for individuals, and that’s not just employees, but it’s managers and supervisors, too. And it’s leaders, too. What I call the practical dimensions of the job is about labor-management relations, and it requires human interaction to be most effective.

DG: What is the status of the union of Authority employees?

ED: When I was made Chair over a year ago, the first thing I did on Day One was to restore recognition of our in-house union. As you may know, the FLRA had recognized that union since the first year of its existence in 1979, through Republican and Democratic administrations alike, until the end of 2018.

We went through nearly 40 years having recognized the union, and then that was ended in 2018.

Just for context. That recognition initially back in 1979 had been done after seeking an opinion from the Department of Justice whether we could do that. Under our own statute, we’re one of the agencies exempt from coverage. We’re not covered by our own law, for practical reasons. But then the question is: Could we voluntarily recognize a union in-house? The answer came back in a very thoughtful and thorough memo from Justice that said, yes you could, with a couple caveats. For example, our employees couldn’t be represented by a union that had business before us.

Last year, I restored recognition. It was very important to our employees. Morale had already plummeted. From Day One, we’ve been in negotiation with our union, and discussing with them several aspects that involve the pandemic, wrapping up three different agreements:

1.    Telework.

2.    Remote work.

3.    And then have begun to consider the future and a re-entry plan as directed by OMB and OPM. We’ve been negotiating a re-entry plan which we’re about to finalize.

[Editor’s note: The FLRA’s telework Memorandum of Understanding allows employees in appropriate circumstances to work from somewhere other than their assigned FLRA office for up to 8 days per pay period. The remote work MOU allows employees, in appropriate circumstances, to work from somewhere other than their assigned FLRA office more than 8 days per pay period, and generally does not require them to come into their assigned FLRA office on a regular basis. This agreement is moving forward as a 24-month pilot program. The parties will evaluate the pilot and decide whether to continue it past 24 months.]

So that restoration of the union has led to the negotiation of these three agreements that are offshoots of the pandemic, giving our employees a voice. I anticipate that we’ll be returning to the office in a different way than existed the last two years, and in different ways than existed before the pandemic hit.

DG: When do you expect to return employees to the physical office?

ED: We agreed we wanted to see 14 straight days with a reduction in transmission rates recorded. We still have a couple regional offices located in areas where we haven’t nailed that down yet. Then we have a 30-day notice provision before we transition back. I guess somewhere around mid-May, we’ll be getting ready to transition.

DG: What are the most important legal areas you will look to reexamine if given the opportunity?

ED: If you followed us closely, we got into areas over my objections that were based on what are characterized as requests for policy guidance. It wasn’t a specific case or controversy between parties, it was just some entity requesting policy guidance in certain areas. Those entitles were varied, some were parties before us, but eventually some of them weren’t.

In my view, it’s somewhat analogous to rulemaking. It’s my view that those kinds of serious matters should be addressed and resolved by cases. But many were over my dissent, and I dissented substantively as well.

I think it’s important to say this to set the table. And I think it’s historically factual.

Three Federal agencies oversee three collective bargaining laws – the NLRB, the National Mediation Board, and we have the FLRA, which, as you know, has jurisdiction over approximately 2 million Federal employees. I’ve worked at all three agencies. Throughout its history, at the NLRB, you’ve seen a lot more political swings in their case law and decisions. It does change. Sometimes, it changes by administration. Certainly, long-standing precedents are overturned at certain points in time.

That hadn’t been true of the FLRA in the same way. With a couple of exceptions – and only a couple — we’d had a lot of long-standing precedents that have been in existence for decades. Then, in the last 5 years, while I’ve been in the minority, there has been a unique noteworthy change in our history. I don’t think you can deny, there’s been a very purposeful objective of overturning long-standing precedents that had continued through Republican and Democratic Administrations. To me, with all due respect because people are entitled to their opinion here, they also reflect an undermining of what I consider to be some of the key policy underpinnings that are reflected in this statute.

When this statute was enacted, it was discussed in the context of what is unique to the Federal sector, not just the public sector. Everybody says (the statute) was modeled on the National Labor Relations Act. It was, in some respects, but that is really misleading. It’s a much different statute in many ways, based on policy considerations in the Federal sector, and those have been violated in my opinion.

Here’s one good example: It’s important to every workplace in every sector, but there’s a unique importance of grievance arbitration in federal labor management relations. Why is that so? Because of a lot of other decisions that were made.

Number one is (Federal unions) don’t have the right to economic weapons. They don’t have the right to strike under our law. So, you need mechanisms to resolve disputes.

Grievance arbitration was made paramount. Every agreement must have a grievance arbitration provision. The definition of grievance is very broad in here. What I would say: The language of our statute makes clear and other decisions also made clear that arbitrators doing Federal sector work should be accorded the same deference we accord them when doing private sector work.

One of the FLRA’s most important responsibilities is we sit as the surrogate for the Federal courts in handling appeals or exceptions for grievance arbitration awards in the federal sector.

Arbitrators should be given that deference. Now I will say that that’s my very strong view, but like on everything, don’t take my word for it. I will tell you that the DC Circuit has come up, in a number of decisions, and overturned my colleagues, tracking my dissent.

In 2020, the DC Circuit overturned my colleagues and said, as I said to you today and throughout my professional life, the FLRA is required to apply the deferential standard of review used by the Federal courts in the private sector. That principle needs to be enshrined and re-established. It’s so central to the day-to-day workings of labor management relations at any agency over which we have jurisdiction.

If you look at the decisions that have discarded longstanding precedent. and they fall into different areas, the common theme there is that they’re restricting access to the rights provided here, or they’re limiting the scope of collective bargaining, one of the purposes of this law.

To me, it doesn’t just reflect what I would call a different view on policy, it reflects a disagreement with the law. One of the unique attributes of this statute and a striking contrast to the law in the private sector under NLRB is the narrow scope of bargaining. It’s already very narrow. You don’t bargain over anything under which there is a Federal law, like wages, salaries, fringe benefits. They are essential to most bargaining anywhere else.

And (the statute) is pro-management. To try to whittle it away, little by little, to me, is basically saying we don’t believe in the statute, so that’s my concern.

Beyond what I mentioned, it’s important to focus and highlight the underlying policy around grievance arbitration. So many areas need to be addressed. Just look where precedent has been overturned … Just speaking generally, and without prejudging how I would rule in any particular case, I think the precedent was probably for the most part well-founded and needs to be restored.

Gephart@FELTG.com

Three Lessons Learned from the New MSPB’s Decisions

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By Deborah Hopkins, April 11, 2022

My morning routine has changed significantly in the last few weeks. Now, along with my coffee, instead of reading the news, I’ve been eagerly checking the MSPB website for new cases (a decision on a PFR is officially called Opinion & Order, or O & O) issued by the Board. They’ve issued a few dozen decisions so far. Ann Boehm will touch on some of these cases in her Federal Employment Law Update: Significant Cases and Developments session during Emerging Issues in Federal Employment Law later this month.

Until then, here are three takeaways from our first read of the cases.

1 – The Board is keeping non-precedential (NP) decisions, though not all are lengthy. FELTG has long advocated that the Board do away with NP decisions, since they don’t add anything significant to the body of MSPB case law (5 CFR 1201.117), but alas, we don’t always get what we wish for. In fact, in our recent interview with Acting Chair/Vice Chair Raymond Limon, he informed us that NP decisions were here to stay.

That said, most of the NP cases the Board has issued are only a page or two. And of the longer ones that contain a more detailed discussion of the merits, we’ve seen some interesting things, including:

  • This Board’s interpretation of how many specifications must be proven to uphold a charge,
  • What it plans to do with Lucia challenges,
  • Appropriate (and inappropriate) methods of notifying a probationer of their separation, and
  • What types of evidence in response to alleged whistleblower reprisal actually rise to the level of “clear and convincing.”

2 – Whistleblowers are a priority. Speaking of whistleblowers, we estimate that somewhere between 700-800 of the 3,600+ petitions for review in the backlog contain allegations of whistleblower reprisal, and the Board has already issued decisions on several of these cases. Both members have spoken publicly about how important it is to protect whistleblowers from unlawful retaliation, so it’s no surprise that these cases are already coming out.

3 – Back pay is already adding up. A lack of quorum for half a decade did no favors to anyone, and the back pay for employees who were wrongfully removed or demoted is going to cost agencies (and taxpayers) a lot of money. Two of the new cases have ordered corrective action going back over a dozen years. Add interest and attorney fees to back pay and the cost is easily over a million dollars (or more) in these cases. In addition, while we anticipate agency actions will be upheld in a significant majority of these cases, there are employees who have been wronged who have been waiting years for a Board decision. We’ll never be able to know the true cost of the lack of quorum – but thankfully we have one now.

Is anyone else as excited as we are that we finally have new cases? We’ll keep you posted in this space, and with updated events on our virtual training and webinar training pages – and in our return to the classroom this summer. Hopkins@FELTG.com

The Good News: The Union Doesn’t Get to Attend Every Meeting (Part 2)

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By Ann Boehm, April 11, 2022

This is final of my two articles on union attendance at meetings. Last month, I covered the Weingarten right. This month, it’s formal discussions.

The statutory guidance on both types of meetings is in 5 U.S.C. § 7114(a)(2). The formal discussion language is in subpart (A): “An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at … any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.”

Let me be honest. I could write a long article discussing all the intricate aspects of what is and is not a formal discussion. Fortunately, I do not have to do so. Here’s my public service announcement: In 2015, the FLRA Office of the General Counsel published “Guidance on Meetings.” It’s a must-read for anyone in Federal sector labor relations. The guidance summarizes key case law and highlights the important aspects of both formal discussions and Weingarten meetings. It’s also 43 pages long.

The goal of this article is not to regurgitate all the details in that guidance, but instead to give you my own highlights regarding formal discussions, including some key practical advice.

Why does the union have this right?

In evaluating the union’s right to be present at a formal discussion, you need to understand why they have the right in the first place. The right exists “to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit–viewed in the context of a union’s full range of responsibilities under the Statute.” Dep’t of Justice, Bureau of Prisons, FCI Ray Brook, 29 FLRA 584, 589 (1987), aff’d, AFGE v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989). The biggest takeaway from the “why” is to realize that the union’s right to be present at a formal discussion is to represent the entire bargaining unit, not any individual employee!

Why did Congress use the word “formal”?

The above-mentioned FLRA guidance explains this very nicely. Let me highlight the key information from that guidance (at page 5, emphasis added):

Where a meeting is brief, spontaneous or deals with a performance issue particular to the bargaining unit employee, the Authority is less likely to find that it meets the “formality” requirement. In reaching this conclusion, the Authority has noted that the word “formal” was inserted as an amendment to the Civil Service Reform Act of 1978 “‘to make clear that this subsection does not require that an exclusive representative be present during highly personal, informal meetings such as counseling sessions regarding performance.’” (citing F.E. Warren AFB, Cheyenne, Wyo., 52 FLRA 149, 156 (1996) (Warren AFB).

Isn’t that great to know!

So, what exactly is formal?

The FLRA highlighted the factors to consider to determine formality in Department of Energy, Rocky Flats Field Office, 57 FLRA 754, 755 (2002): “1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted.” There is another potential factor — whether attendance was mandatory. DVA, Central Ark Veterans Healthcare System, 63 FLRA 169, 172 (2009).

It gets a bit tricky, though. The FLRA lists out these factors, but also has said they are “illustrative, and other factors may be identified and applied as appropriate.” VAMC, Richmond, Va., 63 FLRA 440, 443 (2009). Oh gee. That’s helpful.

If it is a formal discussion, then what?

Prior to conducting a formal discussion with unit members, management must 1) notify the union, 2) within a reasonable time in advance of the meeting, 3) allow the union representative to be present, and 4) participate. Simple enough, right?

Practically speaking, Ann Boehm of 2022 has this advice for you: If it’s not clear whether a meeting is a formal discussion or not, invite the union.

What? Ann, are you crazy?

Let me explain. Early in my career, my goal (as directed by management) was to try keep the union out of every meeting. Over time, however, I mellowed. I mean, why would you not invite the union to a meeting between management and bargaining unit employees?

Let’s face it, if a bargaining unit employee is in the meeting, it is likely that the union will hear about it. If the union attends, and management does something the bargaining unit members don’t like, the managers can always say, “Well, the union was present at the meeting.”

And let me tell you the biggest thing I learned over a fairly long labor relations career. If you invite the union, you have satisfied your obligation. If they do not attend, that’s on them. In case you hadn’t noticed, federal employees meet a lot. If you invite the union regularly, you may find that they opt not to attend.

Here’s another bit of practical advice. If you don’t invite the union, and they think it was a formal discussion, the union can file an unfair labor practice — a “gotcha.” They get to say, “Bad management, you violated the Statute when you failed to invite us to this meeting.” If you invite the union, you avoid the “gotcha.” It’s not as fun for the union.

What if the employees don’t want the union there?

Believe it or not, bargaining unit employees do not always want the union to attend their meeting with management. But as I mentioned initially, the union’s formal discussion right is intended to enable the union to represent the best interests of the entire bargaining unit. It is not the employee’s right.

Where this gets a bit bizarre is on the grievance aspect of the formal discussion rights. For example, the FLRA considers EEO complaints and MSPB appeals to be grievances, so settlement discussions in such cases can be formal discussions. In practice, a bargaining employee may have private counsel for their EEO or MSPB case, and yet the union will have a right to attend a settlement discussion between management and the employee. You will find that bargaining unit employees are often concerned about the union attending their EEO settlement meeting. If that occurs, it’s not management’s problem. The agency is obligated to notify the union, and the union has a right to attend. If the employee has a concern, they should raise it internally with the union.

Conclusion

I hope these two articles have helped you know when the union has a right to be present at management meetings. Just because the union wants to attend a meeting does not mean they get to attend. And that’s Good News. Boehm@FELTG.com

[Editor’s note: For more guidance on all things Labor Relations, join Ann and Joseph Schimansky for FLRA Week May 9-13. Register now.]

What Types of Leave Count in an Excessive Absence Case?

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By Barbara Haga, April 11, 2022

Excessive absence seems so basic we shouldn’t need to address it anymore. However, questions do still arise about what works and what doesn’t. Occasionally, someone asks a question about something new, as happened recently when a FELTG customer inquired about excessive absence and COVID-related leave. First, let’s trace how we got here.

Back in the olden days of excessive absence cases when I was a Navy HR practitioner, the interpretation of when excessive absence worked was that the employee had to exhaust available paid leave, both sick and annual, and then go on leave without pay for a significant period for the agency to be able to proceed. That left management in a tough spot when the employee had done the right thing and accumulated potentially thousands of hours of sick leave. Board decisions added further confusion over the years regarding whether you really had to wait for the employee to use up the paid leave.

In 1993, the FMLA created another leave category that was guaranteed each 12-month period. However, it could not be included in an excessive absence charge.

The Board resolved the first issue about what counted in the excessive absence charge in McCauley v. Interior, 116 MSPR 484 (2011). In this decision, the Board overruled prior interpretations about what leave could be counted. Here is the key ruling:

There appears to be some inconsistency in Board precedent regarding what leave can be used to support an adverse action based on excessive leave use. See, e.g., Curtis v. U.S. Postal Service, 111 M.S.P.R. 626, ¶¶ 9-11 (2009) (holding that an agency cannot discipline an individual for his use of approved sick leave but can discipline an employee for his use of unscheduled LWOP); Allen v. Department of the Army, 76 M.S.P.R. 564, 570 (1997) (holding that an agency can bring an action against an employee for excessive absence even if the absence is excused on grounds of poor health); Webb v. U.S. Postal Service, 10 M.S.P.R. 536, 543 (1982) (holding that an adverse action taken by an agency against an employee based on periods of approved leave does not promote the efficiency of the service). Because the efficiency of the service may suffer in the absence of an employee’s services, regardless of the type of leave used, we hold that whether the leave is sick leave, annual leave, LWOP, or AWOL will not be dispositive to a charge of excessive absences. To the extent that the Board has held or implied otherwise in cases such as Curtis, 111 M.S.P.R. 626, Ryan v. Department of the Air Force, 107 M.S.P.R. 71 (2007), Scorcia v. U.S. Postal Service, 78 M.S.P.R. 588 (1998), Holderness v. Defense Commissary Agency, 75 M.S.P.R. 401 (1997), Clark v. Department of the Navy, 12 M.S.P.R. 428 (1982), and Webb, 10 M.S.P.R. 536, those cases are expressly overruled. (italics added)

The next paragraph reiterated that FMLA hours could not be included in the charge:

“Because Congress’s clear intent when enacting FMLA was to provide job security for individuals who needed to be temporarily absent due to a serious medical condition (whether their own or that of a family member addressed by the FMLA legislation) and the law unambiguously promises this job security, use of FMLA in any calculation to remove an employee is inappropriate. Therefore, it is improper to consider FMLA absences as a part of the equation when evaluating if an employee has taken excessive leave.”

A footnote states:

“When enacting FMLA, Congress found that there was a “lack of employment policies to accommodate working parents [that could] force individuals to choose between job security and parenting” and there was “inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.” H.R. Rep. No. 103-8(I) at 1 (1993).” (italics added)

Excessive Absence and Savage

In Savage v. Army, 122 MSPR 612 (2015), the Board revised the interpretation in McCauley that AWOL hours could be included in excessive absence charges, since an excessive absence charge by its nature is a charge regarding approved absences and AWOL is unapproved. Thus, since 2015, AWOL must be cited separately in its own charge.

A reader asked whether Emergency Paid Leave (EPL) could be counted in an excessive absence charge. We won’t know for sure until such a case is ruled on by the Board, but here is the conclusion I reached and the basis for it.

EPSLA and EPL

 We have two different laws implementing COVID-related leave. In 2020, the leave was implemented by the Families First Coronavirus Response Act (FFCRA), which established two paid leave benefits, but only the Emergency Paid Sick Leave (EPSLA) applied to most Federal employees.

The EPSLA regulations issued by the Department of Labor begin with the following statement: “The Department of Labor published in the Federal Register on April 6, 2020, a temporary rule to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of the Coronavirus Disease 2019 (COVID-19) global pandemic.” (italics added)

EPSLA included a section on prohibited actions which stated, “It shall be unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who — (1) takes leave in accordance with this Act; and (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.” Thus, it’s clear that the 2020 type of COVID-related leave could not have been used in an excessive absence case.

EPL was created by President Biden’s American Rescue Plan, which was signed in March 2021.  There is no preamble in the Act itself or anything in Sec. 4001 which created the EPL benefit for Federal employees that describes Congress’ intent in providing the leave. But it is important to remember that EPL was designed to give a much greater amount of leave tied to the same public health emergency that FFCRA had dealt with. It should also be noted that the Treasury provided funds for agencies to receive reimbursement for the Emergency Paid Leave specifically to limit the impact on agencies.

Conclusion

I see significant parallels between the language regarding implementation of FMLA, which was specifically enacted to protect workers because of temporary absence due to a serious medical condition, and the language that is used where Congress has responded to COVID-related absences. The 2020 bill specifically indicated there could be no disciplinary penalty for its use. My gut reaction is that the MSPB will say an employee should not be penalized for using the EPL provided in 2021 specifically because of the pandemic. Haga@FELTG.com

COVID-related Harassment Should NOT Outlast the Pandemic

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By Deborah Hopkins, April 11, 2022

Last fall, in the first filing of its kind, the EEOC filed a lawsuit against a private sector company for COVID-related harassment. According to EEOC’s press release, “the pharmacy discriminated against a pharmacy technician with asthma who asked to wear a face mask at work as an accommodation of his disability immediately following the COVID-19 outbreak to help protect him from the virus. The employee was harassed because he requested this accommodation and was sent home twice when he asked to wear a mask, and then taunted and humiliated for questioning management’s policy prohibiting masks, leading him to quit…”

Mask mandates are being lifted all around the country, and COVID cases continue to drop. However, your agency needs to be aware that the potential for discrimination, harassment, and reprisal related to COVID is far from over. Your agency’s job is to prevent that from happening in the first place, or to take immediate, effective corrective action if it discovers such mistreatment has occurred.

It’s probable that every theory of discrimination has been implicated since this pandemic began more than two years ago. Here are a few examples of areas where there could be potential liability if the agency or its employees do not respond according to the law:

  • Employee requests telework as an accommodation because he is at high risk for severe symptoms of a COVID infection
  • Employee chooses to wear a mask or to continue to socially distance after mask mandates are lifted because she has underlying medical conditions that rise to the level of a disability
  • Employee reveals to supervisor he could not be vaccinated against COVID-19 for medical reasons, and the supervisor refuses to consider a promotion for that employee
  • Employee reveals to coworkers she could not be vaccinated against COVID-19 for religious reasons, and coworkers begin to ostracize the employee
  • Reprisal or harassment against employees who requested exemptions from the vaccine mandate as an accommodation, including verbal comments, disparate treatment, and more
  • Agency refuses to consider telework as an accommodation for employees who have been teleworking throughout the pandemic, and are now ordered to return to the worksite
  • Supervisor doesn’t allow an employee to return to the physical workplace because the employee has a known disability the supervisor believes makes the employee susceptible to more severe COVID, even though the employee is willing and able to work within their medical restrictions
  • Asian American and Pacific Islander (AAPI) employees are harassed or discriminated against over the origin of the virus
  • Harassment in a virtual or telework environment

There’s a lot to consider as we start to discover what the Federal workplace will look like in the near future. Join FELTG for the 60-minute webinar The Changing Nature of Hostile Work Environment Claims on May 19 and learn how handle these new types of harassment to ensure a safe and productive work environment for your employees.

Or, let us know if you’d like us to present a training session to your agency attorneys, LR/ER specialists, EEO professionals, supervisors or employees. We’re happy to help. Hopkins@FELTG.com

OPM Offers Roadmap for Your DEIA Plan

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By Michael Rhoads, April 11, 2022

OPM has released its Strategic Plan for FYs 2022-2026. To put this report together, OPM did its homework.

The OPM Strategic Plan for 2022-2026 represents 132 reports and studies reviewed, interviewing 30 internal stakeholders and 58 external stakeholders over 36 organizations. The plan is divided into the four Goals OPM would like to accomplish during that period. OPM wants to position the Federal Government as a model employer, transform OPM’s organizational capacity, provide greater customer satisfaction for OPM’s customers (that’s you!), and provide data-driven solutions that help with your agency’s mission.

The objectives, which expand on each goal, reflect the Biden Administration’s goals of increasing Diversity, Equity, Inclusion, and Accessibility (DEIA). I found the strategies outlined in Goal 1’s objectives to be applicable to any agency, and a good reminder of best practices for everyone as many agencies transition back into the physical workspace.

Goal 1: Position the Federal Government as a model employer. To improve the Federal government’s workforce and become a more model employer, OPM looks to draw on the diversity of all communities around the United States. “As a model employer, the Federal Government will recruit from all segments of society to attract a workforce that draws from the diversity of the American people.”

Strategies for implementation for Objective 1.1 – DEIA. OPM encourages a top-to-bottom review of policies and practices to eliminate barriers to equity by tracking demographic data and leveraging expertise to examine DEIA at all levels of grade and pay. To attract new talent from a more diverse population, use partnerships, paid internships, fellowships, and apprenticeships to reach out to historically underserved communities. Use DEIA as a tool to assess agency recruitment, hiring, promotion, retention, professional development, pay equity, reasonable accommodations access, and training policies and practices for fairness and impartiality across all pay levels.  Assess barriers which deny employment opportunities, including at the SES level, to the LGBTQ+ community and to people with disabilities, and develop plans to eliminate those barriers. Promote pay equity at all levels of Government by reviewing job classifications.

FELTG’s DEIA courses are designed to meet the Presidentially-mandated training for all agency employees from front-line supervisors to SES professionals.

Strategies for implementation for Objective 1.2 – Future of Work/Model Employer. OPM seeks to support agencies by providing human capital tools, guidance, and services as each agency returns employees to the physical workplace. In alignment with the President’s Management Agenda,  OPM will, “create a vision and strategy for how the Federal Government can be a model employer with respect to hiring, talent development, competitive pay, benefits, and workplace flexibilities…, and develop and advance human capital policies to support the longer-term future of work.”  Be sure to register for Emerging Issues in Federal Employment Law April 26-29, and see where the future of work is really headed.

Strategies for implementation of Objective 1.3 – Building Skills through Training. No organization, private or public, can hope to succeed without focused, high-impact training. OPM seeks to strengthen Federal HR by recruiting diverse, early-career talent, modernize the Pathways program, and design paid internships.  Paid internships also loop back to Objective 1.1, since unpaid internships or similar programs designed to learn new skills, are a barrier to most low-income workers and students. OPM also encourages agencies to launch initiatives to “identify and develop, select, high-impact talent projects.”

Agencies should improve the competitive hiring process with new selection rules and focus on customer service and problem solving in training opportunities for human capital professionals.

To provide agencies with access to more tools, OPM will improve assessments for hiring with a government-wide hiring assessment line of business and agency talent teams.  All of FELTG’s webinars and Virtual Training Institute courses are designed with your agency’s mission in mind, and will help expand your employee’s skills and work IQ.

Strategies for implementation of Objective 1.4 – Employee recognition. As luck would have it, yours is not the only agency in the Federal government.  OPM encourages agencies to, “share leading practices related to engagement and recognition across Federal agencies through Chief Human Capital Officers (CHCOs), Federal Executive Boards, the White House, and other stakeholders with shared missions.”

Agencies should also, “increase attention to programs that regularly spotlight workers and union members at OPM and across the Federal Government throughout the year, culminating with Public Service Recognition Week,” which is May 1-7, 2022 this year. [As a side note, I’d love to hear what your agency will do this year to honor our public servants.  Feel free to send me an email, Rhoads@feltg.com.]

In the introduction to the Strategic Plan, OPM Director Kiran Ahuja said it best.  “We will promote a diverse, equitable, inclusive, and accessible Federal workforce based on merit; develop a strategic vision for the Federal Government to prepare for the future of work; support Federal agencies to attract early career talent; and equip current and future Federal workers with the ability to build new skills over time to adapt to a rapidly changing world.”

At FELTG, we strive day in, day out to train federal workers to adapt to a rapidly changing work environment, and offer courses to promote the ideals of Diversity, Equity, Inclusion and Accessibility. Stay safe, and remember, we’re all in this together.  Rhoads@feltg.com