A Future of Dramatic Workplace Change is in the Cards

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By Dan Gephart, March 16, 2021

A few years back, I read that a Topps 1973 Mike Schmidt rookie baseball card in mint condition could fetch $10,000. Like me, my Schmidt rookie card didn’t quite make it out of childhood in mint condition. Still, I optimistically took the corner-frayed, slightly torn, decidedly non-glossy card to a sports memorabilia collector. When the collector told me the card was in fair condition, I took that as promising. Then he explained that “fair” is the lowest grade he gives to baseball cards, and, by the way, my card barely qualified for that grade. Forget $10,000. I’d be lucky if my card could cover a large cold brew and a scone at Starbucks.

Starting this year, I could purchase a pack of the NBA’s new Top Shots, where a $15 investment could land me a Lebron James card, currently valued at $208,000. These cards are guaranteed to always be in mint condition because they will never be physically touched by human hands. These investments won’t be devalued by card flipping or bike spoke-propelling.

You see, the NBA Tops Shots are crypto-collectibles purchased as a non-fungible token (NFT) created through blockchain technology.

If you’re as confused as I am by what the heck that last sentence means, then you better buckle up. If sports cards can make that kind of sudden leap in technology, imagine what’s in store for the workplace. Numerous workplace experts have already wondered about that. They predict numerous dramatic changes in the workplace in the future.

But not all change will be technology-fueled. Job market changes could lead to major reorganizations, experts predict. Some change could result from the very real potential of future health crises. Look at how the workplace changed during the current pandemic.

Years of telework initiatives, COOP plans, and Snowmaggedons failed to move the needle on remote work. But when the virus hit pandemic levels last year, most Federal employees immediately started working from home. Work travel, except when absolutely essential, screeched to a halt. Crowded meeting rooms were replaced by Zoom, Microsoft Teams and Webex.

And, as the FELTG Nation knows very well, change could be driven by law and policy. It’s happening now, as agencies adjust to the Biden Administration’s reversal of the previous administration’s federal workplace initiatives. As FELTG President Deb Hopkins said, the whiplash is real.

To protect your organization against constant whiplash, workplace experts say that you need employees with creativity and critical thinking skills, and a continuous learning environment. If you take care of hiring the right employees, we’ll be here to provide the continuous learning. In the next couple of months, we are offering several training events to help manage change, both current and future.

Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace on Wednesday, April 7. Talk about a sharp shift. Just a few months ago, diversity training was frowned upon. However, the new administration has made it clear that training on diversity and inclusion is a key piece in advancing racial equity and strengthening workplace protections based on sexual orientation and gender identity. In this two-hour virtual training, FELTG Instructor Meghan Droste, attorney at law, will explain what microaggressions look like in their various forms — microinsults, microassaults, and microinvalidations.She will share an implicit bias test, explain its impact, and provide examples. She will also review EEO law so you can determine when bias or microaggression rises to the level of discrimination.

Biden Executive Orders, OPM Guidance and an Update on the Status of Civil Service on Thursday, April 8. FELTG was the first out of the gate with comprehensive training events on the new president’s Executive Orders impacting the Federal workplace. If you attended any of those training events, then you have a huge step up on your peers. FELTG President Deborah Hopkins and Instructor Ann Boehm will dive into the language of recent OPM guidance, and interpret what it means for your day-to-day operations. They will also share all of the latest information on Federal employment law-related news.

What to Expect When You’re Expecting a New Board on Tuesday, April 27. This 75-minute session kicks off the FELTG Forum 2021: Emerging Issues in Federal Employment Law. We have a glimmer of hope that a new Board could soon be in place at the MSPB, and that’s the kind of dramatic change that we all would applaud. What does this mean for federal HR professionals? What does this mean for all those agencies and employees whose cases have been piling up unread at the board? FELTG President Deborah Hopkins will give an overview of what we can expect in the upcoming months from a new MSPB, and where the board will stand on critical issues like performance and conduct accountability.

Legal Update: Recent Developments in Federal Employment Law, Part I (MSPB, EEOC, Federal Circuit) on Thursday, April 29 and Legal Update: Recent Developments in Federal Employment Law, Part II (FLRA, FSIP) on Friday April 30. These two sessions are also part of the FELTG Forum 2021: Emerging Issues in Federal Employment Law and will be presented by FELTG Instructors Ann Boehm and Joseph Schimansky.

Not a One-Way Street: How OIGs and Agencies Can Successfully Work Together on Thursday, June 24. Navigating all of this change requires leadership and coordination. And there is a resource right at your agency that can help with both. Scott Boehm brings his 32 years of leadership experience and nearly 20 years of experience in Offices of Inspectors General to this hourlong webinar. If you work in your agency’s OIG, you will learn what you can do to foster this coordination. And if you’re an attorney, HR professional, EEO specialist or supervisor, you’ll learn how the tap your OIG’s knowledge and resources.

Visit the FELTG website for information on these and other training events. And if you’d like to bring these trainings to your agency virtually, contact me. Unlike my Mike Schmidt rookie card, FELTG training will retain its value. Gephart@FELTG.com

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

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By Deborah Hopkins, March 8, 2021

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

On Executive Order 13950 (Schedule F):

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

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

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

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

On Executive Order 13839 (Discipline and Performance Accountability)

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

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

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

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

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

Transition Talk: Be Honest and Positive, and Offer Training to Appointees

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By Dan Gephart, March 2, 2021

This is the final article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new Administration. See our previous articles in the series:

 

Ann Boehm experienced a number of presidential transitions during her 26-year Federal career. Her most recent transition was in 2017. Ann was working for the U.S. Marshals Service, where more than 90 presidentially appointed marshals were potentially entering on duty.

“During the 2017 transition, we decided to mandate a training course for the new U.S. Marshals,” Ann said. “The training included procurement, appropriations, and personnel law, as well as other things regarding the day-to-day running of the U.S. Marshals Service. The Marshals greatly appreciated the training. Presidential appointees are busy people, but agencies committed to providing them with effective training can ease the transition for everyone involved.”

DG: What is the best advice you have ever given — or would like to have given — to a presidential appointee?

AB: I think it is important for presidential appointees to listen to the career Federal employees. Sometimes the appointees undervalue the career feds. They also may be coming from the private sector or even state or local government, and they need to get assistance from the career employees on how procurement, appropriations, and personnel (from hiring to firing), among other things, all work in the Federal government.

DG: What is your advice for FELTG readers working with new presidential appointees?

AB: The most important thing to do when working with new presidential appointees is to maintain a positive attitude. Most human beings do not like change, and most presidential appointees come into an agency looking to change things. Career Federal employees can sometimes be overwhelmed by appointees coming in and wanting to alter the way the agency runs.

It’s important to understand the appointees’ motivation, and also to educate them if an idea is unlikely to succeed. In my experience, the appointees want to succeed, and a logical argument can go a long way toward helping them understand agency culture and what is likely to be the best way to further the agency’s mission.

DG: What is the most important skill necessary to survive and thrive in a new administration?

AB: I think the most important skills are flexibility and honesty. Do not be afraid of new ideas, but be prepared to explain when things are not working.

Ann will be one of the presenters at the upcoming MSPB Law Week, FLRA Law Week and the FELTG Forum 2021: Emerging Issues in Federal Employment Law. If you’re interested in bringing Ann Boehm to your agency for training, email Gephart@FELTG.com.

President Biden and the Trump Civil Service EOs: What It All Really Means

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By William Wiley, February 22, 2021

Well, it didn’t take long, did it? In his first three days on the job (not bad for a probationer), President Biden recognized what most every reader of this newsletter already knows: “Career civil servants are the backbone of the federal workforce.” Take THAT, you crummy old political appointees. You just got slammed by The Man in the White House.

On Jan. 22, 2021, the White House issued the “Executive Order on Protecting the Federal Workplace,” developed in large part to set aside several EOs issued by the previous White House. Those Trump EOs, in the eyes of many, undermined or had the potential to undermine a number of core statutory protections for career federal employees.

It’s our job here at FELTG, among other things, to try to explain to normal people what actions like this really mean out there on the front lines where most of you in the FELTG Nation spend your time trying to do the work of government. So here we go with our insightful and occasionally scintillating analysis. (Editor’s note: For more detailed analysis, join Ann Boehm and Deborah Hopkins for an encore presentation on Changing Course: Understanding Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on Thursday at 2:30 pm.)

First things first: DO NOT BE MISLED BY WHAT YOU HEAR OR READ IN THE MEDIA. Whenever you read a newspaper article about these EOs or see a talking head “expert” on CNN or Fox, keep in mind that those (usually) well-intend folks are there to grab your eyes, not necessarily to provide detailed guidance to exactly what is happening. “If it bleeds, it leads” is a decent motto for a reporter, but that doesn’t always fit with the bottom line to what’s really going on. For example, from the very first that the previous EOs hit the ground in the summer of 2018, articles in the media often read as if it was the End of the World for Federal employees. Our friends on the union side were horrified and appalled at what was happening to their rights. Lawyers who represent employees in appeals and grievances were beside themselves with the restrictions being imposed by the White House on the Federal workforce protection processes. Even Federal judges, when called upon to rule on related cases before them, did not always take the time to parse out exactly what the Trump EOs were doing, and not doing, to the civil service.

Our job here a FELTG is to inform and provide guidance related to civil service law. Whether it bleeds or not, makes little difference in our analysis of these issues. Neither should yours. Read those articles and watch MSNBC or Newsmax every chance you get. Just keep in mind that you need a more balanced analysis to decide what you have to do to implement this new Biden EO. So here we go with our view of balance:

Executive Order on Protecting the Federal Workplace

There are a number of issues addressed in the Biden-EO that are important, but beyond the scope of this limited article:

  • The dreaded Schedule F is revoked (❤).
  • Centralized OPM control of labor relations is revoked.
  • The direction that management representatives negotiate to restrict union time, deny unpaid union access to government facilities, and limit the scope of grievance procedures is revoked.
  • The prohibition on negotiating the “permissive” subjects of bargaining, 5 USC section 7106(b)(1), is revoked.

These issues arose because of the issuance of EOs 13836, 13837, and 13957. As a practical matter, these three EOs (of the four being rescinded) were the most controversial from a legal standpoint and were challenged in Federal court immediately upon issuance.

That leaves EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.” Unlike the other Trump EOs being set aside by the Biden EO, there were no big legal issues being put into play. Rather, EO 13839 simply directed agencies to exercise their existing legal discretion, defined by 40 years of MSPB case law, in a particular manner. A number of articles written at the time of issuance described this Trump EO as taking away existing employee rights. Well, as we wrote in this newsletter at the time, there were NOT any employee rights being violated. Yes, the EO directed that managers exercise their existing flexibilities in a narrow manner disliked by a number of employee representatives in our field, but that didn’t make the EO mandates illegal.

EO 13839

Here’s what the Biden EO says about this particular “accountability” EO:

Sec. 3 (c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles), is hereby revoked.

Sec. 3 (e) The heads of agencies whose practices were covered by Executive Order … 13839 shall review and identify existing agency actions related to or arising from those orders. Such actions include:

Sec. 3 (e)(v) Revisions to discipline and unacceptable performance policies, including ones codified in bargaining agreements, issued pursuant to section 7(b) of Executive Order 13839;

Sec. 3 (f) The heads of affected agencies shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review described in subsection [above].

Carefully notice what this EO requires you to do (and, conversely, what it does NOT require you to do):

  1. Read section 7(b) of Trump Executive Order 13839, which says, “The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order,”
  2. Determine which agency discipline and performance policies were modified because of EO 13839, and then
  3. Rescind those policies.

These are the requirements that EO 13839 mandated you to include in your agency’s policies:

  • Limit opportunity periods to demonstrate acceptable performance (DPs/PIPs), generally, to 30 days.
  • Do not prohibit removing an employee simply because a different employee was not removed for comparable conduct.
  • Do not require suspension of an employee before proposing to remove that employee.
  • When selecting a penalty, consider the employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.
  • Issue decisions on proposed misconduct removals within 15 business days of the end of the employee reply period.
  • Limit the written notice of adverse action to 30 days.
  • Use the adverse action (misconduct) removal procedures in appropriate cases to address instances of unacceptable performance.
  • Prioritize performance over length of service when determining which employees will be retained following a reduction in force.
  • Do not, in general, modify an employee’s official personnel records as part of the resolution of an employee’s complaint, grievance, or appeal.
  • Provide detailed reports periodically to OPM relative to removals, settlements, and disciplinary actions.

Steps 2 and 3, require agencies to rescind any of the above requirements in agency policies IF AND ONLY IF those policies were implemented because of the mandates of Trump EO 13839. Remember, there is nothing inherently illegal in these policies. In fact, they closely track well-established MSPB case law, Board decisions that acknowledge that agency managers have significant flexibility when disciplining and removing non-productive civil servants. If you had any of these policies in place before EO 13839 was issued, or developed these policies independently of EO 13839, then the Biden-EO does not require you to rescind them.

For example, if your agency independently decided to issue a policy that a DP generally should not exceed 30 days, you may keep it in place. President Biden isn’t saying that there’s anything wrong with a 30-day DP, just that a decision to implement a 30-day DP is not something that he thinks should be mandated by a Presidential order. He has said he does not believe in an “imperial Presidency.” The abolition of EO 13839 (and, in many ways, the parallel revocation of EOs 13836 and 13837) is a reflection of that style of management, allowing these decisions to be made by lower-level managers, not by mandate from the Big Kahuna himself.

Bottom Line: Saying that the Biden EO has restored “employee rights” to the civil service is a limited characterization. At least relative to EO 13839, President Biden has restored “management flexibilities” relative to decisions being made by agencies when dealing with poor performers and misbehaving employees. For example, under the Trump EO, an agency could not offer an employee a clean record in exchange for the employee withdrawing an appeal. Under the Biden EO, an agency can now offer a clean record in resolution of a complaint. It doesn’t HAVE to offer a clean record, but it can. Greater management flexibility can be a good thing.

On the other side, however, increased management flexibility can result in inexperienced managers exercising their flexibilities in ways that do not necessarily lead to an efficient and effective federal workforce. For example, we have it on good authority that one of the reasons that the Trump EO limited DPs to 30 days was because records show that some federal supervisors were initiating 90, 120, even 6-month DPs. President Biden has now restored the ability of agencies to return to such extended demonstration periods if agency policy-makers so choose.

Now that you have your flexibilities restored, you might want to consider coming to an FELTG seminar or two for help in deciding how to exercise those flexibilities legally. Based on the many years of experience possessed by just about every one of our instructors and speakers, we can show you what the law and case law is relative to all of these civil service management issues, guide you through the decision-making process while weighing risks and benefits, and even assist you in exercising the options that you were denied under the previous EOs.

We’ve never claimed that we should make agency decisions for you, but we do claim to know the legal parameters in which you can act. It’s a new day in the civil service. Take advantage of it while you can. Wiley@FELTG.com

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

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By Deborah Hopkins, February 10, 2021

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

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

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

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

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

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

Unwelcome Conduct

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

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

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

____ Yes

____ No

Based on Protected EEO Category

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

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

____ Yes

____ No

If so, which category or categories?

____________________________________________________________________

Severe or Pervasive

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

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

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

____ Yes

____ No

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

____ Yes

____ No

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

Agency Liability

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

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

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

Director of EE Oh No! When HR Practitioners Fail to Perform

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By Barbara Haga, February 10, 2021

A case caught my eye earlier this week. I was reading through another newsletter focused on the Federal workplace and saw this headline: Air Force EEO Director Removed Following Investigation. Of course, I had to read that article. Discipline among HR practitioners doesn’t come up all that often, and certainly doesn’t make the news.

The article was about the director of EEO at Hill Air Force Base (AFB), which is located near Ogden, Utah. It was written by an attorney who had represented one of the whistleblowers involved in the case.

The EEO director was removed after an Office of Special Counsel (OSC) investigation into whistleblower allegations regarding how EEO complaints were handled at the base, according to the article. The Special Counsel and the Air Force looked into the claims and determined that, among other things, the director “… actively discouraged employees from filing EEO complaints, improperly modified and rejected EEO complaints and allegations, provided false and misleading information about the EEO process, and failed to identify conflicts of interest by management during the EEO mediation process.” There were also findings related to improper actions by military attorneys at the base.

The article was focused on the fact that the whistleblowers were successful in getting the issue in front of the OSC and agency officials, who took action to fix the process. Certainly, that’s an outcome we would hope for. Yet, I had to know more.

If you’ve never used the OSC site to read about their investigations before, be aware that there is a lot of information there. Under Press Releases you will find notices when the OSC has made a finding on a particular matter, when they are announcing details about case processing, or making an interpretation that they want to make available to the public. You will find Hatch Act interpretations and notices about cases like the one that is the subject of this column there.  Under Public Files you can read case documents, which is where we begin to look at the Hill AFB case.

The initial report of investigation prepared by the Air Force, after the case was referred to them by OSC, includes background information relevant to this discussion. That initial referral took place in September 2018.  The Air Force response of 139 pages is dated Dec. 9, 2019.  The letter from OSC to the President advising that the whistleblowers’ allegations were substantiated was dated Dec. 22, 2020.

The EEO office was responsible for the implementation of federal laws and USAF policy to eliminate unlawful discrimination and sexual harassment for the 21,000 military and civilian employees at Hill AFB.

The EO director was the head of an office that included 5 EEO specialists and an EEO superintendent. (The director is not identified by name, but in some of the statements is referred to as “she,” so I will do the same.)

The director had previously been an active-duty military equal opportunity specialist from 1994 to December 2007 when she retired from active duty.  She had worked as a civilian EEO specialist from 2008 until August 2016, when she took over as the EO director. She had served as the ADR program manager prior to becoming the EO director. From the information I could glean from the report, this position would be the equivalent of a GS-13.

Air Force Findings

The allegations the Air Force investigated are listed below. I have very briefly summarized the findings:

1 – Whether the EO director actively discouraged employees from filing EEO complaints.

Substantiated. One of the whistleblowers was in the informal step regarding a sexual harassment complaint. The EO director advised the employee could not file because some incidents were outside of the 45-day window, even though there were continuing violations, and that her case wouldn’t go anywhere. The EO director said to the employee that because there were no witnesses, the claim “wouldn’t carry any weight.”

2 – Whether the EO director inappropriately modified or rejected EEO complaints and/or allegations.

Substantiated. The EO director negligently performed both the EEO counseling and the acceptance/dismissal functions for one of the whistleblower’s complaints in violation of regulations regarding timeliness and dealing with patterns of behavior in sexual harassment and hostile work environment claims. In addition, there were incidents where records were not complete about why issues were dismissed in certain cases.

3 – Whether the EO director gave employees false and/or misleading information about the EEO process.

Substantiated. The EO director improperly advised employees that a) complaints could not be amended when they could have, and b) an employee in a sexual harassment complaint did not have an option to remain anonymous in the informal stage. The director also advised a contractor that he/she could not file a complaint without doing due diligence to determine if the contractor would be considered an employee.

4 – Whether the EO director failed to identify conflicts of interest by management during the EEO mediation process.

The EO director did allow management officials to be involved in settlements in cases they were involved in, but the investigation found that no law, rule or regulation was violated.

The agency was directed to look at whether the EO director engaged in gross mismanagement. The Air Force did not find evidence of mismanagement.

The Remedy

This is scary stuff.  The person entrusted with management of the system that allows employees to bring issues of illegal discrimination forward is making serious mistakes that deprive employees of their rights. The 2019 Air Force report indicated that the subject of the investigation would be referred to appropriate officials for consideration of any appropriate disciplinary action. The letter to the President explained what action was taken. The Air Force committed to revising training requirements for EEO personnel, to issue new policies regarding conflicts of interest, and they referred the issues related to the two military attorneys to the Judge Advocate General Corps.

The EO director was removed from her position and reassigned to another office with no involvement and influence over EEO filings and issued a Letter of Counseling. I’m still scratching my head over this one. More next time. Haga@FELTG.com

Focused on Mission and the American People: An Effective Federal Workforce

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By Ann Boehm, February 10, 2021

Let’s be honest. The past administration did not hold any particular fondness for Federal employees. We can start with the whole “Drain the Swamp” thing.

Being referred to as swamp dwellers does not do much for employee morale.

The Biden Administration is trying to rebuild the morale. President Biden recognizes and values civil servants. He’s been busy in the first few weeks of his administration making that clear.

Executive Order 14003, issued just two days after the inauguration, rescinded Executive Orders 13836 (limitations on collective bargaining); 13837 (limitations on official time); 13839 (accountability for employee performance and misconduct); and 13957 (creation of at-will Schedule F employees).

Unions and federal employee advocates are cheering the administration’s efforts, and so am I. But having gone through this kind of transition several times during my own career, I am also a bit afraid of the pendulum swinging too far in favor of employee unions and in favor of protecting the bad employees.

An important part of employee morale is ensuring that agencies deal effectively with Federal labor organizations, and also with discipline problems and poor performers. Your friends here at FELTG have spent more than 20 years helping agencies do just that.

The system Congress created in the Civil Service Reform Act back in 1978 remains in place. Federal employees have many rights. But they don’t have the right to be bad employees.

I think it’s important to recognize what President Biden already has said about the Federal workforce. Executive Order 14003 begins with this statement: “Career civil servants are the backbone of the Federal workforce, providing the expertise and experience necessary for the critical functioning of the Federal Government. It is the policy of the United States to protect, empower, and rebuild the career Federal workforce. It is also policy of the United States to encourage union organizing and collective bargaining.”  E.O. 14003, § 1 (Jan. 22, 2021).

Beats swamp-dweller, right?

Also, in a taped message for all career staff, President Biden made these statements:

– “We’re a team … One team for one America.”

– “You are civil servants for all Americans.”

– “[T]ogether we will lead with core values … values that help us make good decisions, stay focused on what’s most important, and keep ourselves accountable, hold ourselves accountable to the American people and to our conscience.”

– “Humility, trust, collegiality, diversity, competence: these are the values that most of you look to. These are the values that form our vision for our work ahead.”

Pretty powerful stuff. If you haven’t watched the President’s video, I highly recommend that you do. And make sure your employees watch it too.

In this administration, unions are more empowered. Employees are more empowered. And yes, managers are also empowered (and protected – be very thankful that Schedule F is gone). What’s critically important in this more positive environment is for every Federal employee to make sure that the American people come first.

How do agencies ensure that this happens? I recommend that agency managers, labor-relations specialists, and labor relations attorneys reach out to their bargaining unit representatives. Communicate effectively. Talk about the rescinded Executive Orders. Work together to ensure the President’s goals are achieved, keeping in mind that the goal for all is to stay mission focused and help the public.

Also continue to take appropriate action to handle those performance and misconduct problems that impact negatively on the morale of the many outstanding civil servants. Even the President’s speech noted that “most” of the career civil servants embrace the values he highlighted. Those who don’t should be handled as Congress envisioned in 1978, through the discipline or performance routes.

It’s good to be a Federal employee. It always has been. Now you have the support of the administration. You can focus on your mission. You can take care of the American people. And that’s good news! Boehm@FELTG.com

Don’t Abuse the Abuse of Process Dismissal

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By Meghan Droste, February 10, 2021

Happy February, FELTG readers! Although a certain rodent recently predicted six more weeks of winter, I know I have already turned my thoughts to spring and the warm weather it will hopefully bring. I don’t need a groundhog to tell me that it will still be many months before I will be able to teach any in-person classes, but I’m also looking forward to getting back into the swing of teaching with the virtual programs we have coming up this spring.

One of the topics that comes up in many classes I teach is when an agency can or should dismiss a formal EEO complaint. When we discuss the various reasons listed in 29 C.F.R. § 1614.107(a), I often get questions about 107(a)(9), which allows agencies to dismiss complaints when they are “part of a clear pattern of misuse of the EEO process.” The Commission gives agencies some guidance directly in the regulation: There must be “(i) Evidence of multiple complaint filings; and (ii) Allegations that are similar or identical, lack specificity or involve matters previously resolved; or (iii) Evidence of circumventing other administrative processes, retaliating against the agency’s in-house administrative process or overburdening the EEO complaint system.” See id. So how many complaints are enough to meet the standard?  And how similar do the complaints need to be?

The Commission recently looked at this issue in Jeffery J. v. Department of the Navy, EEOC App. No. 2020004860 (Dec. 2, 2020). The complainant filed his formal complaint alleging a discriminatory non-selection on June 21, 2020. The same day, the agency issued a FAD dismissing the complaint as an abuse of the EEO process. The reason? The agency said the complainant had filed eight other complaints against the same installation over the past 10 years.

The Commission reversed the FAD, finding that filing numerous EEO complaints was not enough on its own to meet the standard for abuse of process. Instead, the agency needed to “show evidence that somehow in filing numerous complaints a complainant specifically intended to misuse the EEO process.”

The Commission pointed to two prior decisions to distinguish the issue. In Wiatr v. Department of Defense, the Commission found no abuse of process when the complainant filed more than 40 complaints in order to end alleged discrimination, while it found there was an abuse of process in Abell v. Department of Interior, in which the complainant filed 40 non-selection complaints with no intention to accept a position.

The Commission also rejected the agency’s argument that the complaint was an abuse of process because the complainant’s complaints had been similar, none had been successful, and he allegedly had a “personal grudge” against an agency official. It found that the agency had no evidence that this complaint was abusive, rather than just one in a series of complaints.

I’m sure that some of you can think of a complainant who is a repeat customer (although 40 times is probably an outlier!). You might find yourself getting frustrated, but don’t let that frustration color the process. Complainants who have filed more than one complaint have just as much of a right to engage in the EEO process as someone coming to your office for the first time. Droste@FELTG.com

As Forecast, Flurry of Executive Orders Accumulate for Federal Workplace

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By Michael Rhoads, February 10, 2021

Winter has made its presence known this year. Here in the Northeast, my friends and family have had the pleasure of receiving more snow in one storm than we have in the past two years combined. President Biden has also made his presence known with a flurry of Executive Orders.

The Executive Order has been the tool for the past few presidents to achieve political goals without having to go to Congress for approval. At the beginning of any new administration, changes via Executive Order can be expected.

Last month, I took a stab at forecasting how some of the Trump Administration’s Executive Orders would fare in the Biden Administration, so here’s and update on how some of those predictions played out.

Labor Relations

As predicted, EOs 13836, 13837, & 13839 – the Trump Administration’s orders affecting Labor Relations – were rescinded. However, agencies are taking a cautious approach to implementing the Biden Administration’s EO and are waiting for further instruction before proceeding. FELTG will have courses throughout the year to help you navigate any labor relations changes, but our FLRA Law Week, May 10 – May 14 will give you the most comprehensive review.

Schedule F

My initial read on Schedule F was it might survive, even if only in part.  However, Schedule F was rescinded by the Biden Administration via Executive Order. According to Erich Wagner, no agency was able to re-classify employees into Schedule F, but agencies will have to assess whether or not political appointees may have “burrowed in” to civil service positions.

In addition to the Executive action, a bi-partisan bill has also been proposed in Congress which would prohibit any future actions implementing anything similar to Schedule F. The Preventing a Patronage System Act seeks “to impose limits on excepting competitive service positions from the competitive service, and for other purposes.” The bill also seeks to keep any positions from being moved out of schedules A – E as they were defined on Sept. 30, 2020.

To learn more about the most recent Executive Orders and how to implement them, join Deb Hopkins and Ann Boehm on Thursday, Feb. 25 at 2:30 pm ET for Changing Course: Understanding the Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F.

As always, stay safe, and remember, we’re all in the together. Rhoads@feltg.com

Pop Goes the Mountweazel: Find the Roadblocks to Swift, Effective Action

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By Dan Gephart, February 10, 2021

Mountweazel. I just love this word. I discovered it last week as I was reading Liar’s Dictionary, a new novel by Eley Williams. Neither a steep scalable landmass nor a rat-sized mammal, a mountweazel is a bogus entry inserted into a dictionary, encyclopedia or other reference work as a trap to catch future copyright infringers.

About midway through Williams’ novel, the protagonist Mallory is charged with finding the mountweazels left behind when the fictional reference book was first published more than a century ago. All of the fake words must be found before the publisher posts the reference book online. The problem is Mallory knows not where the mountweazels are nor even how many there are. (OK, I get it, a John LeCarre spy thriller this most certainly is not.)

Picture Mallory sludging through thousands of dictionary entries to find the fake words. It gives me a headache just thinking about it, and I love words. When overused, used incorrectly, or improperly communicated (all were the case in the novel), mountweazels make it harder to accomplish the mission, which in Mallory’s case was digitizing an accurate reference book.

So here’s my question: What mountweazels are keeping your agency from meeting its mission? Not fake words, but unnecessary or improperly communicated procedures.  When it comes to discipline and performance, to paraphrase a certain insurance commercial, we’ve seen a mountweazel or two. (Bum ba dum bum bum bum bum.)

Back in 2017, FELTG Past President Bill Wiley was tired of hearing from supervisors who took useless actions like Letters of Admonishments and Letters of Caution to address wayward employees. Supervisors would take these actions because they were easy and, they assumed, if the same situation arose again, they could say they’ve taken prior disciplinary action. But guess what? These actions are not discipline as defined by case law. The action was a temporary Band-aid that did nothing to address the root of the issue, and, more often than not, the suspect behavior would continue unabated. Even worse, these empty actions are actually grievable, putting the supervisor and the agency on the defensive.

So Bill created the “yellow donut.” If you’ve taken part in FELTG’s UnCivil Servant training over the last couple of years, then you’ve seen the graphic. It’s the yellow donut that looks more like a three-tiered bullseye. (Seriously, are you going to pay attention to a donut or a bullseye?) The outer edge is the illegal stuff that you should never do, and you most likely don’t. (Please tell me you don’t.) The inner red part is the good stuff that FELTG teaches, which is the legal minimum, things you must do.

The largest tier in between the inner and outer is the yellow part. That’s the mountweazels of donuts of unnecessary actions, keeping you and your agency from meeting the mission. These actions are perfectly legal, but not worth using. Each unnecessary action is a barrier to a swift, effective, and legally sufficient conduct or performance-based action. Keep your stumbling blocks to a minimum.

If you’re vegan or on a New Year’s Resolution Whole 30 kick, you might eschew the donut for FELTG Instructor Ann Boehm’s approach. During her federal career, Ann has also seen far too many unnecessary actions taking place. Why, why, why Ann would ask. The reason, she has been told is: “That’s what HR told us to do.” Ann spelled this out in her Good News column in the January 2020 newsletter, when she introduced readers to The Office of Folklore, know more affectionately as OOF! That newsletter article included a checklist, which empowers supervisors to demonstrate to the folklorists there is a better and more direct way to handle the situation. (Print the story and cut out the checklist now. I’ll wait.)

I hope you are part of the UnCivil Servant: Holding Employees Accountable for Performance and Conduct virtual training we are holding starting today. If not, then put a hold on these dates —  May 19-20. That’s when we’ll be holding the class again. Or you can bring that course directly to your agency (in person or virtually). Email me (Gephart@FELTG.com) and we can discuss.

If you’ve attended UnCivil Servant previously, join us for UnCivil Servant – Next Level on March 11, where you’ll be able to put the tools you learned in the original class to the test with some challenging and realistic scenarios.

These courses were designed to help you determine the minimum steps to take effective and legally defensible performance and conduct actions. We’re not doing this to make your job easier, although it will.  The more unnecessary steps you take when addressing discipline and performance problems, the harder it gets, the longer it takes, the more likely you are to make a mistake – and the further you get away from mission. Gephart@FELTG.com