The Good News: A Letter to Santa 2021

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By Ann Boehm, December 7, 2021

Dear Santa:

I hope you and Mrs. Claus had a good year, despite the continued pandemic. I guess you’re happy to have your own elf labor and reindeer transportation, since the supply chain appears to be a problem now.

I think I should be on the good list this year. I have decided that I won’t mention the pony this year, even though a pony would be really neat. And since I’m not asking for a pony, I hope you will help me with some other things I really want for Christmas. Here they are.

1. A revised Federal EEO process.

Yes, Santa, I know that the pony would probably be easier than this, even with the sleigh limitations. But this one would really help EEO complainants and Federal agencies.

2. Senate-confirmed MSPB Board members.

Santa, please stop laughing. This one is serious. No quorum at the MSPB since January 2017 is getting a little silly. The three nominees are through committee and just waiting for confirmation. Can you help?

3. Senate-confirmed FLRA members and General Counsel.

There are three FLRA members, but two are on expired terms. It would be bad for the FLRA to go the way of the MSPB and not have a quorum. And the Acting General Counsel can only serve for so long. Not having a General Counsel means no ULP processing, and that’s a bad thing. Two FLRA nominees and the General Counsel nominee are through committee and waiting for confirmation. Please help with these nominations, too.

4. Acknowledgment from this Administration that pro-Union doesn’t mean pro-bad employee.

The Biden Administration is really pushing agencies to encourage union membership and work with bargaining unit employees. That’s a nice theory, but too often unions take the side of the toxic, draining employees at the expense of the effective, hard-working employees. Santa, it would be great if you could help everyone understand that bad employees are bad employees, regardless of their bargaining unit status.

5. Progressive discipline (reprimand, suspension removal) even for non-vaccine disciplinary cases.

Santa, we here at FELTG have taught about progressive discipline for a very long time. Sometimes agencies don’t always believe us when we tell how it works, and then bad employees stay employed for far too long. The vaccine mandate has highlighted how progressive discipline works. I would like to ask you to make sure agencies (and this Administration) understand that progressive discipline is appropriate to use for all misconduct cases (unless misconduct is bad enough to remove an employee in the first instance—and yep, that can be appropriate).

6. More in-person training.

It’s been amazing to be able to train agencies virtually during this bizarrely long pandemic crisis. But I do miss the in-person interaction. I’m fully vaccinated and willing to travel. If any agencies want in-person training, I’m ready to roll.

7. A pony.

OK. I said I wouldn’t ask, but I have to keep trying. Stay safe, Santa. Merry Christmas and Happy New Year! Ann

Boehm@FELTG.com

Updated Guidance on Vaccine Refusals – Just in Time for the Holidays

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By Deborah Hopkins, December 7, 2021

While the federal mandate for COVID-19 vaccination had a compliance rate of more than 97% from civilian and military personnel as of the end of November, there are still a number of personnel who have not complied with the Executive Order or requested an exemption. The deadline for compliance of civilians was November 22. Until a few days ago, the guidance from the administration had been that agencies should begin the process of counseling, then quickly disciplining, employees who refused to comply.

Perhaps, as a direct result of requests for delay by labor unions, the Safer Federal Workforce Task Force updated its guidance on discipline for vaccine refusals, encouraging agencies to counsel and educate employees on the benefits of vaccination for an “appropriate period” of time rather than the 5 days previously recommended.

In an email to agencies, OPM more closely defined that time period by advising agencies to refrain from suspensions until after the holidays. This timeline aligns more closely with the January 4 deadline the administration set for federal contractors to be fully vaccinated against COVID-19.

The Task Force guidance also included a new suggested step in the disciplinary process of noncompliant employees — the reprimand.

If the employee does not demonstrate progress toward becoming fully vaccinated through completion of a required vaccination dose or provision of required documentation by the end of the counseling and education period, agencies may issue a letter of reprimand, followed by a short suspension (generally, 14 days or less).

Reports from the end of November revealed that some agencies were already beginning the disciplinary process for employees who did not comply with the vaccine requirement. Most of those actions will likely be held in abeyance, but the email from OPM does not say agencies are prohibited from disciplining certain noncompliant employees before the end of the year.

According to a November 29 article by Government Executive, OPM’s email said “We understand that your agencies may need to act on enforcement sooner for a limited number of employees, such as where there are additional or compounding performance or workplace safety issues under consideration, but in general, consistency across government in further enforcement of the vaccine requirement after the start of the new calendar year is desired,” they wrote. “We believe this approach is the best one to achieving our goal of getting the federal workforce vaccinated.”

I’m sure this is frustrating for some of you who had already begun work on the disciplinary process and is welcome news to others who are inundated with discipline issues. Wherever you might be, and however you might feel about the vaccine requirement, FELTG thanks you for your service to the American people and promises we will keep you posted as new developments arise. Hopkins@FELTG.com

Performance System Failures: Lack of Feedback, Poorly Written Narratives

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By Barbara Haga, December 7, 2021

Picking up from last month’s column, we look at who’s responsible for setting the stage for feedback to take place and what a good narrative should include.

It’s common to find language in agency appraisal plans that sets out requirements for which official(s) are responsible for ensuring that feedback is provided to employees and that it is usable feedback.

Most agency plans assign responsibility for ensuring that the appraisal program operates as it should to the head of the component, installation, or operating division. The DoD Instruction on the Performance Management and Appraisal Program (DOD 1400.25, Volume 431) states on page 5 that DoD Component Heads (think Army, Navy, Air Force) are responsible for overseeing “the implementation, application, and evaluation of performance management programs within their respective Components.”

That’s an incredibly broad statement. However, included within it is ensuring that supervisors provide required feedback and that narratives actually contain documentation of accomplishments around the elements that are designated in the plan.  Usually, this responsibility would be delegated further down the line to subordinate levels of managers until we get to raters and reviewers. Here is the language regarding those officials from the HHS Performance Management Appraisal Program (430-1, Sections VIII and IX):

HHS – Rating Officials

  • Manage the full performance cycle from:
    • Clearly communicating expectations to holding employees accountable
    • Monitoring performance to providing regular feedback

HHS – Reviewing Officials

  • Implement performance management policies and practices within the appropriate span of control
  • Ensure that Rating Officials (ROs) carry out their performance management responsibilities within established deadlines and evaluate Rating Officials to ensure accountability for HHS’s PMAP

Here is where the rubber should hit the road. The requirement for the feedback sits squarely on the shoulders of the supervisor, but the enforcement comes from the reviewing level. Yet, I’ve heard countless stories of managers not carrying out these responsibilities without any consequence.

System Failures

Many years ago, I helped an agency rewrite all of their performance elements and standards. It was not a large agency. Also, they had a lot of employees who were attorneys who did the same work, so the task wasn’t as monumental as it might sound. (Don’t get excited, it wasn’t the MSPB). I led a group of employees and a supervisor and a union official who worked on the content of the elements and standards. That part worked great. What they told me about how ratings were done was shocking. I’ve seen a lot more since then and likely wouldn’t be as shocked now.

Here’s their story. I don’t know how many were in this situation, but it was common enough that all of the employees on the team said: “Oh, yeah. That’s how it’s done here.”

The managers of these attorneys, paralegals, and other support staff would not meet with them to discuss ratings. Ever. They would prepare the ratings and wait until the employees left for the day and put the ratings in the employees’ chairs with a note saying basically “sign this and give it back to me.”

I was going to do a briefing for the managers to introduce the new plans and get their feedback on them. I was also covering some basic provisions of the appraisal system in that briefing.  Some of the team members made a slide for me to include that had a red stop sign shape with the words, “Stop Drop and Sign” in white letters across it. They were asking me to tell their supervisors to stop leaving appraisals in empty chairs and not discussing them.

These supervisors were very high level, so the threat of rating them lower because of their failure to provide at least a minimum amount of feedback wasn’t a threat. Apparently, there was no requirement coming from above these supervisors to meet their responsibilities as set in the agency appraisal system.

Another System Failure

The same agency asked me to come back the next year. Their headquarters had told them they had too many Level 5 ratings and they needed to actually write a standard for Level 5. It was my brilliant idea that if I reviewed a sample of those Level 5s, maybe those managers would have done a good job of writing down what a 5 looked like and they would already have done a lot of the work for me.

So, I reviewed the sample. In some cases, they did a good job.  In others, I wanted to cry. After all the work of the team getting the standards done, the training I did on how they should be used, and what their own agency plan required, I found all sorts of problems.

The worst one was written to support a Level 5 on the element about their writing of appeal decisions. The element set measures about adequately researching issues, properly citing precedent cases, writing clearly, raising issues in advance if there was a legal issue that needed to go to their headquarters before the decision could be finalized, and so on. The appraisal for one of the GS-13s started off with a sentence about writing appeal decisions followed by this:

In addition to the outstanding work Mary does for the XXXXXX Branch, she has also volunteered and has done an excellent job in organizing a number of functions for the XXXXXX Division, including the end of year pizza party, after work socials, the end of year Holiday Party, and …

That rating had been approved by the reviewing level and an award paid, at least in some part, based on being the Division party planner. I helped write those elements and standards and I promise there was no event coordinator duties covered in those plans. It does cause one to wonder sometimes.

Next time, we talk about what documenting ratings should be about. Haga@FELTG.com

COVID Retaliation: What You Need to Know

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By Michael Rhoads, December 7, 2021

Last month, the EEOC updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws under Section M. Retaliation and Interference. The anti-retaliation protections outlined in the guidance only apply to the exercise of rights under the federal EEO laws.  The questions and corresponding answers are meant to guide federal agencies when considering the rights of job applicants, employees, and former employees in connection with COVID-19.

Some of those questions are below, along with our thoughts and EEOC’s answers:

Do job applicants and employees (including former employees) have protections from retaliation for exercising equal employment opportunity (EEO) rights in connection with COVID-19?

According to the EEOC guidance: “Speaking out about or exercising rights related to workplace discrimination is called ‘protected activity.’ Engaging in protected activity, however, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.”

For examples of COVID retaliation join Katherine Atkinson on Wednesday, January 19 from 1:00-2:15 PM ET for the webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace

Who is protected from retaliation?

The retaliation protections apply to all types of employees including full-time, part-time, probationary, seasonal, and temporary. It is also important to note that an employee’s or applicant’s citizenship or work authorization status is not a factor when considering retaliation protections.

When do Retaliation protections apply?

Always. When considering retaliation protections, consider whether the employee or applicant has a reasonable belief that an EEO law has been violated in the workplace. The employee or applicant must also come forward with those beliefs in a “reasonable manner.”

When is an employer action based on an employee’s EEO activity serious enough to be unlawful retaliation?

This is the hardest question to answer, but if it looks like a duck, and quacks like a duck, it’s a duck.  Per the EEOC’s guidance: “Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.” Examples include suspensions, denying a promotion, negative or less than favorable evaluations, and transfers. Retaliation can also take place outside of the workplace. An action by the employer is still considered retaliatory even if the employee or applicant moves forward with an EEO complaint or complaint-related process.

Does this mean that an employer can never take action against someone who has engaged in EEO activity?

No.  If an employer takes action against an employee or applicant who has engaged in EEO activity, the action must be based on the employee’s or applicant’s conduct or performance.

For example, if an employee’s performance slips, or if the employee makes harassing statements to co-workers, employers may respond with appropriate action.

Does the law provide any additional protections to safeguard ADA rights?

Yes. For example, if an employee or applicant asks for a religious accommodation for an FDA-approved vaccine, this type of accommodation request is covered under the ADA. Employers should engage in their agency’s reasonable accommodation process in such circumstances.

An important reminder comes at the end of the question-and-answer segment: “The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.”

Happy Holidays, and I’ll see you back here in the New Year. Stay safe, and remember, we’re all in this together.  rhoads@feltg.com

A Fully Functioning MSPB and Other (Overly?) Optimistic Predictions

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By Dan Gephart, December 7, 2021

By the time you read the first FELTG Newsletter of next year, it will be five (yes, five) years since the MSPB had a quorum. Heck, it’s been almost three years since the agency has even had a single board member.

Not.

One.

Member.

This is unacceptable. It’s unfair to employees, especially whistleblowers, and it’s unfair to agencies. It’s unfair to supervisors. It’s unfair to taxpayers. The fact that this has not been a priority is worrisome. Yet it continues, and petitions for review keep piling up amid the cobwebs on that darkened Executive Floor at MSPB Headquarters. It’s going to take new members a looooong time to get through that backlog.

The last couple years have been difficult for everyone. As we rumble toward the end of the calendar year, I resolve to stay optimistic, especially when it comes to looking ahead to 2022.

My rosy outlook for the Federal workplace includes a fully functioning Merit Systems Protection Board. I know that seems impossible, but three nominees have made it through committee. Now we need the Senate vote. It could happen.

But why stop there with positive predictions? Here are a few others:

  • Agencies will embrace the President’s Management Agenda.
  • Leaders will heed the lessons learned during the pandemic.
  • Federal EEO professionals will successfully navigate the vaccine mandates.
  • And, since I’m really putting myself out on a limb here, everyone will treat each other with empathy.

President’s Management Agenda

Last month, the Biden-Harris Administration released its Management Agenda Vision with three priorities. This is the priority that has our attention:

We will take new steps to attract, hire, involve, develop, support, and empower talent who can help us meet the challenges of today and tomorrow.

This PMA lays out more specifics on how to do this, including “continuing to build a diverse, equitable, inclusive, and accessible workforce that reflects our nation” and “ensuring that every Federal employee’s job is a good job with the tools, work environment, and resources they need to succeed.”

We at FELTG headquarters couldn’t agree more. Empowerment of federal supervisors has been the cornerstone of our training programs the past 20 years (Attend UnCivil Servant: Holding Employees Accountable for Performance and Conduct on February 9-10 and you’ll find out how.) and our commitment to DEIA is built into our mission statement. If you care about DEIA – and you better, because the White House certainly does – we’ll offer plenty of opportunities for training, including our March 9 session on Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace.

I’m also glad to see emphasis on employee engagement – a tool that is, unfortunately, underused in the federal sector.

The Management Agenda also calls for management to respect employee rights to “organize, bargain collectively, and have their voices heard through their unions in agency decisions that genuinely matter.” Wow, a true partnership for the betterment of taxpayers? Who wouldn’t want that, even if it does give birth to the oxymoronic “neutral encouragement” that Ann Boehm discussed in her column last month.

The return to a more collaborative labor-management relationship will be discussed in the two-hour virtual training Navigating Federal Labor Relations in 2022 on January 13. Register now.

Management agendas come and go with presidential administrations. They usually generate more talk than actual results. However, if agency leaders can dig down into the latest PMA, I think they’ll see several paths to improved productivity and workplace morale.

Pandemic Lessons

Several months ago, the Delta variant put a hard stop to agencies’ plans to return their employees to the physical workspace. Now, we hold our collective breath for more information about the Omicron variant. Yet, some agencies are dusting off those return plans. And others, taking a similarly optimistic approach to mine, have already set return dates.

Bringing people back without a determined plan that considers what happened during the pandemic is not only a wasted opportunity, but also a huge miscalculation. Think about the amount of flexibility and adaptability you and your employees showed over the last two years. How do you keep and expand those qualities? How well did your supervisors do managing remote workers? What did you discover out about virtual meetings?

OPM’s Additional Guidance on Post-Reentry Personnel Policies and Work Environment makes that point clear, as a huge portion of its 38-page guidance focuses on telework. OPM suggests agencies “take this opportunity to adjust their telework policies to reflect a new understanding about how telework has worked at their agencies.”

EEO and Vaccine Mandates

The success of vaccines is allowing agencies to consider returning employees en masse to the physical workspace. Yet, more than 1,600 people were still dying every day from the virus over the past 7 days. The pandemic is not over, and the vaccine mandates aren’t going to disappear anytime soon. Already, it’s become clear that enforcing the mandates has been, to put it lightly, challenging, and fraught with opportunities for EEO missteps.

FELTG has been the leader on providing training on this topic. FELTG President Deborah Hopkins and Instructor Katherine Atkinson presented several training events on the topic over the last several months, each session offering the latest guidance and newest strategies. That continues February 8 with Managing COVID-related EEO Challenges in the Federal Workplace.

First, you must determine whether to provide the reasonable accommodation (disability- or religious-based) of an exception to the mandate. However, it doesn’t end once that determination is made – even if the decision was to not provide the accommodation. It’s highly likely that a lot of these exemption denials will turn into complaints.

And throughout it all, supervisors will have to be on their best behavior. Retaliation is asserted in almost 45 percent of EEO complaints. Considering the emotions and politics wrapped up in this issue, it’s likely you’ll be fielding your share of reprisal complaints next year. (I know. I know. What happened to my rosy optimism?) On January 19, Katie will present Stop the Spread of COVID-related Retaliation in the Federal Workplace, where she’ll walk you through the details of recent EEOC guidance, discuss the various forms of EEO reprisal and why it’s the most common category in discrimination findings, and provide important guidance on what can be done to limit retaliation from happening at your agency.

Empathy all Around

When leadership is the topic, I like to go straight to the experts. I’m lucky we have quite a few FELTG instructors who fit that description – Anthony Marchese, Scott Boehm, and Marcus Hill. It’s not a coincidence that they have all, at one point or another, mentioned empathy as a critical attribute for successful leadership.

Scott, who has 32 years of leadership experience with the Department of Defense and Intelligence Community, told me last year that leaders need to have “the ability to put themselves in someone else’s shoes. They [must be] open-minded enough to understand their followers’ motivations, hopes, dreams, and problems so they can forge deep, personal connections with them.”

More recently, Marcus, a former Senior Executive Advisor for the Federal Law Enforcement Training Centers, called empathy the key component of effective leadership that is often overlooked. “Effective leaders must have the ability to understand others’ thoughts and feelings from their points of view (instead of) the leader automatically overlaying hers/his. My former boss and good friend, Paul Hackenberry, emphasized this with me. He often says, ‘You don’t get to decide how others feel.’”

Leaders can set the tone and create a workplace where empathy can thrive. Think of the power an agency could access if that empathy spread to all employees. Your leaders would be leading. Performance would improve. There would be fewer EEO complaints. And employees would feel more connection to your organization and its mission. Talk about the “model workplace!”

Creating an empathetic workplace isn’t easy, and it won’t happen overnight. Take it one step at a time – and the first step is simple: Listen.

Is my optimism misplaced? Do you have any optimistic predictions for 2022? Let me know. And best wishes for a positive 2022 to everyone in FELTG Nation. Gephart@FELTG.com

Is Removing Fed for Lack of Vaccination a Potential Due Process Violation?

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By Deborah Hopkins, November 17, 2021

Executive Order 14043 requiring all Federal employees to be fully vaccinated against COVID-19 by November 22, unless the employee qualifies for a legal exemption (disability or religious belief), it’s all but certain your agency is currently dealing with a significant number of exemption requests. And with that deadline fast approaching, agencies will soon be disciplining employees who fail to provide proof of full vaccination by that date.

OPM and the Safer Federal Workforce Task Force recently put out guidance about the progressive discipline process agencies should generally use in instances where employees refuse or fail to be vaccinated as required by EO 14043.

In a recent training class, a student brought up this question:

The guidance says that employees who fail to comply with the vaccine mandate should be counseled, and then suspended, and if they continue to refuse to be vaccinated, they should be removed. Isn’t this a due process issue since the discipline is pre-decided in these cases?

And our FELTG answer:

It’s wise to be thinking of these potential concerns before the disciplinary process begins en masse. Fortunately, if Deciding Officials are sufficiently prepared and understand their limited role in the process, due process violations can easily be avoided.

The steps of due process in agency disciplinary actions under 5 CFR § 752 are:

  1. Notice to the employee of the charge(s), the proposed penalty, and the material the agency relied upon in the proposal;
  2. Employee’s opportunity to respond, with the assistance of a representative if desired; and
  3. An impartial decision, where the decision is made based ONLY on the proposal and the employee’s response.

While the guidance says generally employees should be removed for failing to comply, the Deciding Official has the final say. And even if every DO ultimately decides to remove an employee who does not get vaccinated (and does not qualify for an exemption), as long as the DO can credibly testify that she did not make her decision until after the employee’s reply, then there is no due process violation.

Think of a few of statutory penalties that exist for Federal employees: minimum 30-day suspension for misuse of a GOV; 3-day suspension for a first offense of whistleblower reprisal under 5 USC 7515; removal for Treason. These do not raise a due process issue if the DO considers the employee’s response before making the decision about the proposed discipline. The same principle applies here.

We’ve been busy at FELTG helping agencies prepare for these processes. If there’s anything we can do to help you, please don’t hesitate to let us know. Hopkins@FELTG.com

The Good News: Administration’s LR Oxymorons Aren’t as Bad as They Seem

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By Ann Boehm, November 17, 2021

I think oxymorons are kind of fun. An “oxymoron” is “a combination of words that have opposite or very different meanings,” according to the Merriam-Webster Online Dictionary. You know — jumbo shrimp, military intelligence (I have to include that since my husband spent his Federal career in military intelligence), small crowd, pretty ugly, freezer burn.

But are they fun in the Federal labor relations world? The administration’s emerging Federal sector labor relations policy has thus far created two oxymorons. (Full disclosure — I coined these myself based upon Administration directives.)

It started with Executive Order 14003 and this Administration’s directive (like the Clinton and Obama Administrations before it) for heads of agencies to engage in permissive bargaining under 5 U.S.C. § 7106(b)(1). In other words, we now have “mandatory permissive” bargaining. An oxymoron. I’m not going to go into detail about mandatory permissive bargaining in today’s article. We’ve hosted webinars on the topic, and it’s part of our labor relations training classes. Suffice it to say, though, mandatory permissive bargaining has been around before, and it’s not as onerous as agencies fear. (And just for good measure, the Trump Administration directed agencies not to engage in permissive bargaining, so we had “prohibited permissive” bargaining. Who knew Federal labor relations could have so many oxymorons?)

Let’s add a new oxymoron that emerged from two recent OPM directives. As of Oct. 20, 2021, agencies are being strongly encouraged by OPM to engage in what I call “neutral encouragement” of employee bargaining unit rights. An oxymoron.

According to two OPM memoranda to Heads of Executive Departments and Agencies, OPM wants agencies to highlight bargaining unit employee rights in the hiring and on-boarding processes and highlight bargaining unit employee rights to join a union and their rights as bargaining unit members.

What’s the problem with that, you may ask? Well, the Federal Service Labor-Management Relations Statute requires agencies to remain neutral regarding Federal sector unions. According to 5 U.S.C. § 7116(a)(2), it is an unfair labor practice for an agency “to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.” OPM acknowledges this little conundrum in the Frequently Asked Questions attached to one of the memos.

OPM acknowledges that “Agencies and their managers and supervisors should remain neutral, but this does not mean agencies are prohibited from providing information to employees or removing certain obstacles that might inhibit a union’s ability to exercise its rights under the law.” Hmmmm. Could you call that splitting hairs? Wonder how many lawyers it took to come up with that distinction.

The memo further explains, “OPM is simply encouraging agencies to inform employees of the Government’s policy relating to labor-management relations and representation and informing employees of their rights under the law.”

There you have it. “Neutral encouragement.” The latest oxymoron.

And what is it, then, that OPM is “strongly encouraging” agencies to do?

  • Include in job announcements whether a position is in a bargaining unit or not.
  • Include in job announcements the name/local/chapter of union.

Ann’s take: I do not think these two requirements are a good or bad thing. For me, if I had known one of my past jobs was in a bargaining unit, I might have declined the position (despite 16 years of Federal service, I was lowest on the seniority rung because the Collective Bargaining Agreement provided that service within the agency counted above Federal service). Putting this information in announcements could encourage some people to apply and discourage others.

  • Encourage unions to be part of new employee orientation.

Ann’s take: I do not think is a good thing or a bad thing. Employees are often overwhelmed by the information they receive during orientation. The union presentation will be just one additional piece of information for them to absorb. And let’s face it: If they are in a bargaining unit, they have bargaining unit rights. No reason to hide that from them.

  • Provide new bargaining unit (BU) employees information regarding their labor relations rights.
  • Provide BU employees notice of their labor relations rights on a quarterly or biannual basis.
  • Highlight the BU employees’ rights to join a union and include contact information for the union representative.

Ann’s take: Providing employees notice of their labor relations rights is likely to be a good thing. Employees and even union officials often misunderstand and misinterpret their representation rights. Providing the statutory language to employees initially — and on a regular basis — may actually help agencies deal with BU employees. Whether an employee pays dues and joins the union really has no impact on the agency.

Are these requirements really neutral?

Probably not.

Personally, I take this neutrality stuff seriously. If it weren’t for the neutrality requirement, I may never have worked in the Federal labor-management relations world.

Way back in 1992, I was hired by the Fort Campbell Schools (FCS) because they had a union election overturned (the union lost that election) because the FLRA decided the FCS management did not remain neutral during the election process. In the second election, the union won.

FCS decided they needed a labor attorney to guide the FCS administrators on all things Federal sector labor relations, and that was how I got hired. Throughout my career, I remained acutely aware of the management obligation to remain neutral.

Even though agency “neutral encouragement” of bargaining unit rights is arguably an unfair labor practice under the Federal labor statute, what OPM is asking agencies to do is really not the end of the world. And that’s good news. Boehm@FELTG.com

Go the Extra Yard to Support Feds With Mental Health Conditions

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By Dan Gephart, November 17, 2021

On the day Philadelphia Eagles’ offensive lineman Lane Johnson returned to action after a three-game absence, Atlanta Falcons’ wide receiver Calvin Ridley announced that he was stepping away from football for a while. What’s the big deal? The NFL injury report is a constantly fluid and ever-changing list, especially in the age of COVID.  What made this particular Sunday’s roster moves unique was that Johnson and Ridley cited mental health as the reason for their absences.

Earlier this year, tennis star Naomi Osaka and gymnast Simone Biles took their own leaves of absence from sports to address their mental health.

Elite athletes are not alone. There was a mental health crisis in this country before the pandemic, which has only exacerbated it further. Four in ten adults are reporting symptoms of anxiety and depression – up from one in ten during pre-pandemic times. There has also been a significant increase in substance abuse and suicidal ideation.

The pandemic-related increase in mental health challenges has hit essential workers the hardest. While most Americans immediately think of Uber drivers and Grub Hub deliverers, we all know the critical essential work of Federal employees in health, science, emergency assistance, and their supportive fields.

As a Philly sports fan, I watched the Lane Johnson situation closely. I was pleased with how the Eagles organization handled this very public health issue. (It’s one of the few things the 4-6 team has correctly done this year). It appears that the Atlanta Falcons are providing the same support for Ridley.

There is a mental health crisis in this country. And so having well-known figures discuss their challenges can be a real positive. Unfortunately, misinformation continues to spread.

Someone sent me a clip of a Fox Sports show where former NFL player Marcellus Wiley (no relation to FELTG’s Founding Father and former President) launched a several-minute tirade about mental health and sports. I highly recommend that you do NOT waste your time watching the clip. I think you will learn all that you need to know about his perspective from the tweet he sent out in advance of his show:

“The NFL is not a job for the physically weak or the mentally weak! #darwinism (But, there’s always work at that the post office.)”

In one sentence, the former linebacker found a way to demean mental illness and Federal employees. That’s a quick way to get on my @*#! list.

As we wrote two years ago, it’s not true that:

  • People with mental illness are unstable employees and more prone to violence.
  • People with mental health issues are unable to hold down a job.
  • Personality weakness or character flaws cause mental health problems.

So how do you provide a positive environment for employees with mental health conditions? One, you educate yourself. Personally, I’m a big fan of programs developed by the National Association of Mental Illness (NAMI) – a great organization that has been a savior to many families during difficult times.

For a more specific approach for Federal supervisors and HR/EEO professionals, attend the two-hour virtual training event Managing Employee Mental Health Challenges During and After the COVID-19 Pandemic, presented by Shana Palmieri, LCSW, on December 9, starting at 1 pm ET.

In the meantime, consider the following suggestions by Shana for creating a trusting partnership with employees with mental health challenges.

  • Develop clear expectations and agreed upon solutions to meet the goals and expectations of the job
  • Communicate in a clear and concise manner, especially the policies and procedures that may impact their performance
  • Provide respectful, but direct feedback. Also, ask the employee how they prefer to receive the feedback,
  • Avoid judgments or assumptions.
  • Avoid using language that promotes stigma (crazy, insane, loco, nut job…).

Shana will provide plenty of specific examples of reasonable accommodations and offer useful insight into numerous mental health conditions. Gephart@FELTG.com

The Word ‘Reasonable’ is Half of Reasonable Accommodation

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By Deborah Hopkins, November 17, 2021

Numerous EEOC decisions were recently published, and one case dealing with disability accommodation caught my attention. As most FELTG readers know, after receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation” for the qualified individual with a disability. 29 C.F.R. Part 1630, app. § 1630.9.

In this case, the complainant worked as a rural mail carrier for the U.S. Postal Service. She had several medical conditions that required her to limit her walking and standing time to 1-2 hours per day, to limit the time she spent lifting to no more than 1-2 hours per day, and to limit the amount of weight she lifted to 10 pounds or less. Medical documentation supported these restrictions.

The agency modified some of her job requirements, but not all. The complainant asserted that the agency did not accommodate her fully because it:

  • Assigned her to run the “Blue Door,” which meant she had to walk to the warehouse to speak with supervisors and carriers concerning customer complaints. The total walking time averaged 4-6 hours per day, which violated her medical restrictions; and
  • Required her to deliver Express Mail, which included walking stairs and hills and carrying items in excess of 10 pounds. That also violated her medical restrictions.

The complainant reported that her assignments were violating her medical restrictions. She said rather than be accommodated, she was warned she would be sent home if she could not do the work as assigned.

She also reported that a supervisor threatened to discipline her after she made the supervisor aware the assigned work was violating her medical restrictions. In EEOC’s decision, they found the agency did not properly accommodate the complainant:

Upon review, we find that the record reflects that Complainant was denied a reasonable accommodation for her disability when Agency management required that she work the Blue Door, which required Complainant to walk in excess of her medical restrictions causing her further injury. Complainant asserted that she notified multiple management officials that she was being made to work in excess of medical conditions.

We note that the record reflects that Complainant informed multiple management officials herein that she was provided with duties in excess of her restrictions, but no action was taken to address Complainant’s concerns. In fact, management engaged in retaliatory actions by threatening to send Complainant home for exercising her right to seek out an accommodation and be allowed to work within her restrictions. Based on a review of the record, we find that Complainant established that she was denied reasonable accommodation for her disability when she was made to work in excess of her medical restrictions and subjected to reprisal for attempting to exercise her rights under the Rehabilitation Act.

Marleen G. v. USPS, EEOC No. 2020003464 (Sept. 7, 2021)

The EEOC ordered the agency to ensure the complainant was provided a reasonable accommodation that allowed her to perform her work within her medical restrictions. Remember, partially accommodating an employee without considering all restrictions, is not reasonable accommodation at all. Hopkins@FELTG.com

What are Management Rights?

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By Michael Rhoads, November 16, 2021

If your agency’s union hasn’t already started the process of renegotiating your collective bargaining agreement, then now is the time to consider what your strategy will be when the union does come calling.

When it comes to negotiability, management holds most of the cards. Management typically determines whether a union proposal must be bargained, whether an arbitrator’s award is improper because it abrogates a management right, and whether management-initiated changes must be bargained substantively, or only as to its impact and implementation.

Luckily, management rights are already outlined in 5 USC 7106(a).

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2) in accordance with applicable laws—

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from—

(I) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.

One recent example of how the FLRA has decided on management rights is Indep. Union of Pension Emp. for Democracy & Just., 72 FLRA 281 (2021). The Authority ruled in favor of the agency terminating a special achievement awards program, which interfered with management’s right to determine its budget.  However, Chairman DuBester partially dissented because the program does not dictate the amount the Agency must allocate to its overall awards budget.  Rather, it determines the portion of this budgeted amount that will be devoted to a particular type of award.  FLRA Quarterly Digest Report: April 1, 2021 – June 30, 2021.

To catch you up on the latest FLRA decisions and the current state of federal LR, mark this date on your calendar: January 13. We’ll be announcing a two-hour LR training program shortly. Keep an eye on FELTG’s website for more details.

Happy Thanksgiving, stay safe, and remember, we’re all in this together. rhoads@feltg.com