New RIF Regs Raise Concerns About Performance Appraisals

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By Barbara Haga, January 11, 2021

Late last year, OPM issued new regulations on the process for determining retention standing in a reduction-in-force (85 FR 81839). The comment period ends Jan. 19.

These regs implement a requirement from EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.”  Section 2 of the EO entitled “Principles for Accountability in the Federal Workforce,” sets a list of requirements that we are all familiar with such as eliminating the requirement for progressive discipline and the directive to issue decisions in 15 business days.  The last item on that list was that agencies should prioritize performance over length of service when determining which employees would be retained after a RIF. That item indicated that regulations would have to be issued under Sec 7 of the order for this to occur. Sec 7(a) stated:

Implementation. (a) Within 45 days of the date of this order, the OPM Director shall examine whether existing regulations effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order. To the extent necessary or appropriate, the OPM Director shall, as soon as practicable, propose for notice and public comment appropriate regulations to effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.

As a result, OPM determined to change retention order. Currently, employees are listed by tenure, veterans’ preference, then length of service that includes augmentation based on the average of the last three appraisals assigned in the prior four-year period. The order under the proposed regulations would be tenure, the total value of the last three ratings assigned in the prior four-year period, veterans’ preference, and length of service.

What OPM Didn’t Adopt

OPM’s proposed regs change the determination of retention within 5 USC 3502. The regs are not as drastic as what was done several years ago at the Department of Defense. Section 1101 of the NDAA for Fiscal Year 2016 granted DoD authority to establish procedures which provide that the order of retention would be based primarily on performance. In any DoD RIFs occurring on or after Jan. 19, 2017, employees are placed in retention order by performance first. Their retention order is 1) rating of record; 2) tenure group; 3) average score; 4) veterans’ preference; and 5) DoD service computation date-RIF. Within the performance category, the DoD system also categorizes those who have periods of assessed performance of 12 months or more over those who have less than 12 months of assessed performance.

What Will it Mean?

I spent my career working for two agencies (NASA, DoD), that have populations with higher average ages than many other agencies. How does that impact RIF? The vast majority of employees would have more than three years of service as a civilian employee, so virtually everyone is Tenure Group I. While we had some temporary and term employees and new Federal employees from time to time, when you looked at the overall population basically all our employees were in the same Tenure Group. If there is not a lot of differentiation with tenure, then under the proposed regulations, the factor that will have the greatest impact will be performance.

I don’t have a problem with performance being the determining factor in principle. It makes sense. At the end of the RIF, you would hope to have your best people still working for you carrying out whatever functions remain. My issue is whether the appraisals are good enough to have that kind of impact.

Are the Appraisals Sturdy Enough?

I spend a lot of time training on performance topics and working with HR practitioners and managers on how to use the system effectively. I was responsible for the operation of  the performance management programs at various times during my career.  I’ve seen things that make me question whether annual assessments legitimately capture the level the employee achieved.

Are the elements designated as critical really critical? I spend a considerable amount of time reviewing performance plans. I see scary things. It’s not as bad as seeing dead people (nod to The Sixth Sense), but it’s enough to make me cringe. Sometimes, the thing identified as critical is fine, but the measures are off. Even if those things are correct, I worry whether the assessment reached when applying the measures to that critical thing is legitimate. What about the manager who gives a higher rating than what the employee deserves because he knows that there is going to be a grievance or EEO complaint if the employee doesn’t end up with the summary rating desired? Or the manager who rates everyone the same because it’s easier than explaining distinctions among the employees?

Or the upper-level manager who violates 5 CFR 430.208(c) by instructing subordinate managers that they may only have a certain percentage of employees at the top rating level?  Or the manager who would have initiated removal of an unacceptable performer, but upper management directs her to give a Level 3 rating instead?

I’m not the only person concerned. Dr. Howard Risher is a consultant in the areas of compensation and performance management.  He has been involved in studies of Federal employee performance and compensation over many years. He was part of a group that was involved in the study that led to the Federal Employees Pay Comparability Act in 1990, and he was also part of the group that recommended performance-based pay for Federal employees in 2004. Dr. Risher writes frequently for Government Executive. In December, he wrote: “An Office of Personnel Management proposal to link layoffs to performance ratings was unexpected. If the ratings were valid, it would make sense but ratings have little credibility.” Ouch.

Given that these regulations are tied to EO 13839, which is likely to die very soon perhaps we will never see final regulations that incorporate this change; but the prospect worries me. Haga@FELTG.com

Tips from the Other Side: Undue Hardship and Religious Accommodation

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By Meghan Droste, January 11, 2021

It’s a new year, so I have a new focus for my tips for you this month. Well, sort of a new focus. I spent the last few months of the year-that-shall-not-be-named bringing your attention to issues related to accommodating employees with disabilities. As promised, we’re moving to a new topic this month, but it still involves accommodations. This time, I want to focus on handling requests for religious accommodations.

Agencies are required to provide accommodations for religious beliefs and practices unless doing so would present an undue hardship. In contrast to disability cases, the bar for undue hardship in religious accommodations is fairly low: Anything that would require more than a de minimis cost to the agency is an undue hardship. Agencies still often trip over this bar in denying requests for accommodations without any evidence that the accommodation actually would be a hardship.

The Commission’s recent decision in Frances A. v. Department of Justice, EEOC App. No. 2019004187 (Nov. 30, 2020) provides a good example of this. The complainant served as a chaplain at a federal correctional facility. In early 2017, the warden issued a memo requiring all employees who worked in duty stations beyond the control center to carry pepper spray with them. The policy initial exempted chaplains from this requirement, but the agency rescinded the exemption a week later.

In March 2017, the complainant requested an exemption from the requirement to carry pepper spray, citing his religious beliefs that prevented him from carrying a weapon. Three months later the warden denied the complainant’s request on the grounds that it was an undue hardship.  The warden stated that if the complainant did not carry pepper spray it would result in a “significant impact” on facility operations by reducing the number of staff who could respond to emergency or requiring other staff to assist the complainant. Five months after the denial, the agency reversed its position and granted the complainant’s accommodation request.

In its decision on the failure to accommodate complaint, the EEOC found that the agency had no evidence to support its assertion that the granting the complainant’s request would result in an undue hardship on the agency. As the Commission noted, the claim that it would result in a “significant impact” on facility operations was questionable when there were 300 employees who were required to carry pepper spray, and the complainant represented only 0.33 percent of those employees.

As happens too often, it appears that the agency simply pushed back reflexively on the complainant’s request for accommodations rather than making an effort to really consider whether it was possible to grant it (or to provide an alternative accommodation).

The lower threshold for establishing an undue hardship should not be read as a free pass to choose not to provide accommodations when the agency would rather not. The agency must still have some real evidence to point to before denying a request. Droste@FELTG.com

Douglas Factors Worksheet

DOUGLAS FACTORS WORKSHEET

Douglas v. Veterans Administration, 5 MSPR 280 (1981)

  1. The nature and seriousness of the offense and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated:

 

 

  1. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position:

 

 

  1. The employee’s past disciplinary record:

 

 

  1. The employees past work record, including length of government service, performance on the job, ability to get along with coworkers, and dependability:

 

 

  1. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties:

 

 

  1. Consistency of the penalty with those imposed upon other employees for the same or similar offenses:

 

 

  1. Consistency of the penalty with applicable agency table of penalties:

 

 

  1. The notoriety of the offense or its impact upon the reputation of the agency:

 

 

  1. The clarity with which the employee was put on notice of any rules that were violated in committing the offense or had been warned about the offense in question:

 

 

  1. The potential for the employee’s rehabilitation:

 

 

  1. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in the matter:

 

 

  1. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others:

 

 

PENALTY SELECTED:

OPM Finally Answers the Question About Notice of Appeal Rights at the Proposal Stage

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By Deborah Hopkins, December 15, 2020

During our recent webinar on implementing the new OPM regulations on performance and conduct (if you missed it, you can still view the recording), the following question came in:

There has been some discussion in my agency about providing employees with a notice of appeal rights in the proposal letter. Can you please help clarify whether this notice is now required, and if not when it will be required?

And here’s the FELTG response:

First, the notice of appeal rights is not required in actions taken under 5 USC 315 (probationary removals), 432 (performance-based actions), or 7515 (discipline for whistleblower reprisal). See the discussion on p. 127 of OPM’s regs:

As noted above, the amended regulation will not require that agencies include appeals rights information in a notice of proposed action taken under section 7515. Notwithstanding, it is important that the commenters understand that current and amended parts 315 and 432 do not require that agencies provide advance notice of appeal rights … Further, it is well established in statute, regulation, and case law that an employee cannot appeal a proposed action.

As far as chapter 75 removals, the 2018 NDAA (Pub. L 115-91, Section 1097) says:

(b)(2) INFORMATION ON APPEAL RIGHTS.— (A) IN GENERAL.—Any notice provided to an employee under section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) of title 5, United States Code, shall include detailed information with respect to— (i) the right of the employee to appeal an action brought under the applicable section; (ii) the forums in which the employee may file an appeal described in clause (i); and (iii) any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file an appeal. (B) DEVELOPMENT OF INFORMATION.—The information described in subparagraph (A) shall be developed by the Director of the Office of Personnel Management, in consultation with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.

Our understanding at the time this law was issued in 2017 was that OPM would provide the official language after consulting with the other agencies mentioned, and that until such language is developed, there was no requirement to include appeal rights at the notice stage. By the way, providing a notice of appeal rights at the proposal stage really doesn’t make sense, as the timing is preliminary (Bill Wiley wrote about this when the law first came out), but hey, we didn’t write that law.

But, then the regs were published and we started to think that maybe OPM was kicking this down to agencies because the regs, including this one, became effective last month: 

752.203(b) Notice of proposed action. “… The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Pub. L. 115-91, the forums in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file.”

There was no indication in the regulations or the response to the comments that OPM had consulted with MSPB, EEOC, and OSC to develop the appeal rights notification as required by law. In fact, as far as we know, none of the other agencies has acknowledged formally or informally that they have been consulted with regarding the development of appeal notification language.

But then last week OPM issued further guidance that does indeed leave the language development up to agencies.

Here are a few takeaways from the answer to this question:

Are agencies required to provide appeal rights information in an adverse action proposal notice?

    • The requirement to provide the appeal rights information at the proposal notice stage is a statutory requirement under section 1097(b)(2)(A) of Pub. L. 115-91.
    • Part 752 requires that a notice of proposed action under subparts B, D and F include detailed information about any right to appeal any action upheld, the forum in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file.
    • This regulatory change does not confer on an employee a right to seek redress at the proposal stage.
    • The appeal rights language included at the proposal stage specifically relating to choice of forum and limitations related to an employee’s choice of forum will vary depending on circumstances, the nature of a claim and the type of employee.
    • Appeal rights may include but are not limited to filing an Equal Employment Opportunity complaint with the Equal Employment Opportunity Commission; a prohibited personnel practice complaint with the U.S. Office of Special Counsel; a grievance under a negotiated grievance procedure; or an appeal with the Merit Systems Protection Board.
    • OPM does not view the addition of procedural appeal rights language in the regulation to constitute a requirement to provide substantive legal guidance at the proposal stage or to serve as a substitute for advice an employee may receive from an employee representative.
    • Agencies are encouraged and advised to consult closely with their agency counsel to develop the best course of action for implementation of this requirement.
    • Employees are encouraged to consult with their representatives to determine the best options available to them at the proposal and/or decision stage if an employee believes that an agency has taken an action which triggers the right to file a complaint, an appeal or a grievance.

Ugh. Seems like it could be a lot of work for no reason other than to comply with a law that requires notice at the wrong stage. OR, given the flexibility, it could also be interpreted that a general notice of potential appeal rights would satisfy this regulatory requirement since the proposal stage is preliminary.

The good news is that whatever notice is provided should not affect the merits outcome of the case on appeal. If the final decision contains a fulsome description of the employee’s appeal rights, any error in not providing an appeal rights notice with the proposal (or, alternatively, providing a notice not developed by OPM) would be harmless and the adverse action would not be set aside on procedural grounds. Hopkins@FELTG.com

Should Old Dismissals Be Forgot: EEOC Reverses More than A Third of Procedural Dismissals

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By Meghan Droste, December 15, 2020

Somehow, despite it still feeling like it’s just April or May, it’s that time of year again — time to look back on where we’ve been (at home) and what we’ve done (a lot of video calls). In that spirit, this month I’m highlighting an interesting statistic from the Commission’s look back at fiscal year 2019 and adding in some data of my own from recent months.

In its Fiscal Year 2019 Annual Performance Report, the Commission provides updates on its performance in several areas, including closing hearing requests and appeals that have been pending for a lengthy period of time, and the number of findings in favor of complainants and appellants. The Commission notes that it resolved more than 4,000 appeals in FY19, with 37 percent of the appeals resolved within 180 days of their receipt. Also, 762 of the appeals it resolved in FY19 were appeals of procedural dismissals of complaints, when an agency dismisses a complaint before engaging in an investigation. The Commission highlights that it reversed more than 34 percent of the procedural dismissals, remanding them back to agencies for continued processing.

This number stood out to me because it matches what I have observed in my own practice — that the Commission is moving quickly to address and reverse improper dismissals — and because it seems like such an easy fix for agencies. With more care, and possibly more training for EEO staff, agencies can avoid defending unnecessary appeals. But wait, this is “old” data, you might be thinking, from a prior fiscal year. Maybe this was a fluke or agencies have already improved. Well, I’m here to tell you that neither of those things appear to be the case.

I conducted a completely unscientific and not-guaranteed-to-be-statistically-significant review of some recent EEOC decisions and found that the same appears to be true this year. From October 1 through November 19, the Commission issued 204 decisions that contain the phrase “Agency dismissed.” I reviewed a sample of 50 of those cases and found 40 cases in which the Commission issued a substantive decision on the issue of a procedural dismissal. The most common reasons for the dismissals were untimeliness (29), failure to state a claim (20), and raising a claim that was raised in a prior complaint (10).  (Before you question my math, some agencies dismissed claims for multiple reasons in the same case.) The Commission reversed the dismissals in at least 30 percent of these categories, reversing 40 percent of the dismissals for claims raised in a prior complaint.

Hopefully, we’ll see a reversal of this trend in the new year, and you can avoid revisiting cases your agency has improperly dismissed. In order to do so, I recommend reviewing a few of the recent decisions for a refresher on what an agency needs to prove in order to prevail on an appeal of a procedural dismissal. Droste@FELTG.com

[Editor’s note: If you’re looking for training that covers the gamut of EEO issues, and provides usable guidance for all practitioners, regardless of experience level, register for EEOC Law Week, which will be held virtually March 15-19, 2020.]

The Good News: A Letter to Santa

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By Ann Boehm, December 15, 2020

Dear Santa:

I think I have been very good this year, although 2020 needs to be on the naughty list. I hope you and Mrs. Claus are doing OK during the pandemic.

For Christmas this year, here are some Federal employment law things I’d like:

  1. A quorum at the Merit Systems Protection Board (MSPB). (Two members will do. Three would be really great.)
  2. A General Counsel at the Federal Labor Relations Authority (FLRA).
  3. Simplification of the Federal equal employment opportunity complaint process. (I know, I’ve been asking for this for a very long time. It’s kind of like the pony I keep asking for – I just know it will show up someday.)
  4. Labor-management partnerships that are actually balanced exchanges of ideas between unions and management.
  5. Performance improvement plans /demonstration periods/opportunities to demonstrate performance that stay 30 days long (because that’s always been long enough according to the MSPB).
  6. Recognition by the Federal unions that bad employees hurt the good ones, even bargaining unit members – and then (this is a big ask) union cooperation with management when management takes care of the bad ones through discipline or performance.
  7. Decisions from the MSPB (see number 1), the FLRA, and the Equal Employment Opportunity Commission that are based more on the law than on political biases.
  8. Some kind of amazing alternative dispute resolution process at the MSPB that will help them with their backlog of more than 3,000 appeals.
  9. Smooth transitions for Federal employees and agencies as people start returning to the workplace, whenever that happens.
  10. A pony. (I know it’s not really a Federal employment law thing, but I still really want one, and I have to keep trying.)

Thanks, Santa. Be safe out there on Christmas Eve! I can’t wait to see what you bring me! Boehm@FELTG.com

Schedule F, Politicized Policy or Top-to-Bottom Transformation?

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By Michael Rhoads, December 15, 2020

The Trump administration is looking to make sweeping changes to federal employment by introducing a new schedule which could, if fully implemented, convert career conditional employees to at-will employees.  In the Executive Order, the administration cited a need to give “a greater degree of appointment flexibility with respect to these employees than is afforded by the existing competitive service process.” The process for implementing Schedule F as outlined in the EO requires agencies to submit a review of the positions to be covered by Schedule F within 90 days of the order or Jan. 19, 2021.

While it is not widely known how agencies are moving forward with this process, it has been reported by Real Clear Politics that The Office of Management and Budget has identified 425 positions – 88% of their workforce – to be reclassified to Schedule F.  The Washington Post reported, through an anonymous source, OPM may be rushing to move some of its budget and personnel offices to Schedule F “to be test cases for the controversial policy.”

The first challenges to impede the EO have been legal and legislative. The National Treasury Employees Union filed a lawsuit naming the president and Michael Rigas as defendants.  The NTEU claims in the lawsuit: “The president’s sweeping order fails to make a meaningful showing that shifting large numbers of federal employees into a new excepted service category so that they can be fired more quickly and without cause is necessary or supported by good administration principles.”

On the legislative side, Democrats are looking to block implementation of Schedule F through the budgetary process. Language has been included in the NDAA which would block or nullify funds meant to implement Schedule F. There has also been language proposed to ensure employees affected by any changes due to Schedule F would automatically restore employment to those removed, fire anyone who was hired under it, and give back pay to anyone who was fired.

In a GovExec Daily Podcast, Erich Wagner explained the timing of when Schedule F is implemented will determine how much work the Biden Administration will need to do to undo Schedule F, if they choose to do so.

If legislators can pass the NDAA with language to nullify Schedule F, we should not see much trouble for federal employees.

We understand the bad press government employees receive related to the complexity of hiring and firing delinquent employees.  We focus on how to rehabilitate problem employees, but also how to terminate those who are beyond help. Although this system is by no means perfect, it does allow career employees some relief from political pressure and allows them to do their job in a manner which serves the good of the American public as a whole.

In this holiday season, I am happy to know there are a dedicated men and women who are working hard every day to make my life better and provide for the common good. Enjoy your holidays, and remember, we’re all in this together. Rhoads@FELTG.com

Don’t Throw Out the Baby With the Bath Water

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By Barbara Haga, December 15, 2020

This expression is bizarre – who would lose track of their baby in the bath? It is interesting, though.  I did a bit of research.  The phrase is German in origin and by the 1600s, it was commonly used and appeared in writings of astronomer Johannes Kepler. One site explained that the German version would actually be “you must empty-out the bathing-tub, but not the baby along with it.” The message is simple: One shouldn’t discard something valuable along with something undesirable. That’s my request to the new administration.

Dear President-Elect Biden and Transition Team

At FELTG, we train HR practitioners, attorneys, and managers on how to hold employees accountable. Whether the issue is performance, conduct, or attendance, we teach those responsible for effective human resource management how to navigate a complex system of procedures for taking action when Federal employees don’t live up to expected standards.

I realize that the prospects of anything in EO 13839, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, surviving the first few days of your new administration are slim, but I hope that at least there will be consideration of maintaining certain provisions that are important to supervisors faced with the task of managing Federal employees.  The fact that EO 13839 was issued with the two orders that set limitations on union matters may mean that worthy provisions relating to conduct and performance actions will be cancelled in the same fell swoop that will undo EO 13836 and 13837.  However, I hope you will agree that accountability in Federal service is a worthy goal – whether there is a Democrat or a Republican in the White House.

Unacceptable Performance

I want to specifically focus on dealing with unacceptable performance because it has been recognized for many years that failure to deal with poor performance is an issue in Federal agencies.  The Civil Service Reform Act (CSRA) of 1978, which passed during the Carter Administration (and during your tenure in the Senate), included the nine basic principles that set the guidelines for recruiting and retaining a high-quality workforce.

One of the nine principles addressed the need for dealing with poor performance. 5 USC 2301(b)(6)  states: “Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.”

The law directs managers to hold employees to standards of acceptable performance and to take action when they do not improve and set the procedures by which actions could be effected.

While those procedures gave managers what were supposed to be more effective tools to maintain accountability for acceptable performance, the process hasn’t been used as most expected. In 1995, the MSPB reported that of the 8,785 initial appeals decided by the Board’s Judges only 146, or 2 percent, were unacceptable performance actions. The relative percentage has never varied significantly. The MSPB’s 2019 annual report stated that there were 4,893 appeals and 113 (again 2 percent) were performance actions.

The Federal Employee Viewpoint Survey has shown that federal employees don’t see that employees in their organizations are held accountable to performance standards. Since the inception of the survey, there has been a question designed to elicit this information.

Question 23 on the survey is “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” In response to the first survey in 2002, only 25 percent of Federal employees answered that they strongly agreed or agreed that their units dealt with poor performance appropriately. That was the lowest positive score on the entire survey. Over the years, the numbers in the survey have increased somewhat.

The 2019 survey results showed that 33.7 percent answered that they agreed or strongly agreed with the statement.  It’s no longer the lowest positive score on the survey. It’s number two from the bottom. That’s not much improvement.

In years since, this issue has been recognized but no action taken to try to correct the situation.  The Bush Management Agenda for FY 02 addressed “real consequences for failure,” but there were no changes implemented at the time. The White House deficit reduction plan submitted in September 2011 included reform of personnel system, highlighting the need for addressing poor performance. The GEAR (Goals-Engagement-Accountability-Results) Report issued in 2011 under the auspices of the National Council on Federal Labor-Management Relations noted that there needed to be accountability at all levels, yet OPM did not make revisions. There were multiple calls for action, some from the last time you were part of the Administration, but no action ensued.

What Did EO 13839 Do?

The Order states: “Failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies … to accomplish their missions. This order advances the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.” The performance-related provisions of EO 13839 directed agencies to take certain steps to make unacceptable performance actions easier, including:

  • Minimize burden on supervisors (Sec. 2.(a)). In some cases, HR advisors had added extra requirements beyond what the law and regulation required to performance actions, such as documenting pre-demonstration period performance.
  • Eliminate pre-demonstration period requirements (Sec. 4.(b)(ii)). In some agencies, there were extra steps built in. Supervisors had to give formal notice of an “assistance period” before initiating a performance action. In one agency, that totaled 150 days – a 30-day assistance period before a 120-day demonstration period. For a manager at that agency to take action was an investment of 150 days, even though many of those employees performed transactional work where the supervisor would have ample time to determine if the employee could perform acceptably or not in much less time.
  • Eliminate any requirement to use 432 procedures (Sec. 4.(b)(ii)) and use 752 (conduct) when appropriate (Sec. 2.(h)). An illustration comes from the VA. A pharmacist was making mistakes in filling prescriptions. In some cases, it was the wrong medicine and in others it was the wrong dosage. Any mistakes not caught could potentially kill one of our veterans. Yet, for some reason, the agency put that employee on a demonstration period. This action should have been handled under disciplinary procedures. The demonstration period was dangerous.
  • Limit demonstration periods to 30 days in most cases (Sec.2(a)/Sec.4.(c)). This was the most controversial performance-related provision of the Order. For most jobs, 30 days is enough to judge whether there is improvement. Demonstration periods are not limited to 30 days by the Order when the nature of the work demands something different, which is exactly what the regulations provide.  5 CFR 432.104 states “… the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.”

President-Elect Biden, I hope I’ve made a case to keep these tools in the hands of the managers who will be charged with carrying out the programs that you want to establish during your administration. Give them the things they need to manage effectively. Please don’t throw the baby out with the bath water! Haga@FELTG.com

Tips from the Other Side: Reassignments and Reasonable Accommodation

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By Meghan Droste, December 15, 2020

We’ve made it, readers. It’s finally the end of 2020 and that seems like as good a time as any to wrap up our ongoing look at reasonable accommodation issues in this space.  I’m sure we’ll touch on them again at some point in 2021, but for now let’s look at one more area in which I see agencies struggle when it comes to handling requests for accommodations: searching for reassignments.

As a complainant’s representative, I often get involved in reasonable accommodation issues for my clients before litigation.  Obviously the preference is to find a way to accommodate a client’s needs in the current position. Unfortunately, there are times when this isn’t possible.

At that point, we move to discussing a reassignment.  When this happens, I have found agencies often make one of two mistakes. The first is to take far too long in searching for a reassignment. I know, and explain to my clients, that these things don’t happen overnight.  But too often it seems that agencies move very slowly in searching for vacant positions, waiting months before offering a potential position.

As I have mentioned before, the answer to the question of how long is too long to provide an accommodation is very fact-specific, so if your search starts to drag on, you should be sure you have clear documentation of all of the steps you have taken to locate a position.

The other common mistake is that agencies improperly limit the search for a position. I have seen agencies limit the search to only positions at the same grade level, forgetting that if none are available, the agency must search for a position at a lower grade. I have also seen agencies only search for positions in a specific geographic area. As the Commission emphasized in a recent decision, an agency’s obligation “to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area.”  See Lisa C. v. U.S. Postal Serv., EEOC App. No. 2019005689 (Nov. 16, 2020). This means that “absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation.” See id.  While it may make sense to start the search in the location in which the employee already works, that should not be the only search or the end of the search.

Finally, if an employee identifies a potential position for reassignment and the agency rejects it, be sure you can articulate a reason why. In my own work, I have seen agencies outright reject a potential option but give no reason why.  In the Lisa C. case, the complainant identified a position at another facility and it appears the agency made no effort to consider it. As a result, the Commission found the agency failed to accommodate the complainant.

Good luck out there and happy new year! Droste@FELTG.com

Have Discipline or Performance Problems? Take the Right Forking Path

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By Dan Gephart, December 15, 2020

Back in pre-GPS days, my older brother and his wife were driving to a holiday celebration at her family’s house in a small backwoods New Jersey town. They were still many miles away from their destination when they hit a fork in the road. My brother turned to his wife and asked: Which way do we go?

She replied: It doesn’t matter.

My brother told me this story a couple of years ago. I had just moved to the Garden State and I was struggling to find some semblance of reasoning to the left-turn-denying, circle-embracing, ever-winding road system. His story perfectly encapsulated driving in New Jersey, where two roads going in seemingly opposite directions will sometimes lead to the same place.

A couple quick things about my brother. He’s an accountant. Everything comes down to cold hard numbers. Also, he’s a bit of a geek. That’s not an insult; he fully owns and embraces his nerdiness. Every purchasing decision he makes, no matter how minor, is based on extensive research, usually tracked on a complicated multi-column spreadsheet. So “it doesn’t matter which road we take” wasn’t going to work for him.

That December morning, he went right at that fork. He tracked the miles, counted the traffic lights, factored in the speed limits, and noted the potholes. Next time he made the trek, he turned left at the fork and made the same calculations. From then on, he got to his destination via the shortest, least-complicated route.

When it comes to supervising federal employees, all roads are forked. When conduct and performance challenges rise, supervisors are faced with a hard decision about which path to take. Unfortunately, they often take the one that seems less difficult, at least at the time. But the easy path is never easy.  You may eventually get to the same place, but it’s going to take longer and it could be quite painful for you and your agency.

Here’s a story we often hear, in one variation or another: An employee’s misconduct seems minor or simply annoying at first, so the supervisor ignores it. After a few more instances, the supervisor tells the employee: This has to stop. It doesn’t, and now the behavior is impacting the rest of the staff. The supervisor issues a Warning Letter. Instead of correcting behavior, the employee ratchets up the misconduct a few notches. It’s months later and the supervisor just wants to be rid of this employee.=

If you’re keeping score at home (and you’ve been to FELTG training), you’ll note that this supervisor has taken zero disciplinary actions so far. But what about when she admonished the employee, you ask? That’s not discipline. And neither is the Warning Letter. Letters of warning, caution, counseling, and requirement are what FELTG calls “lesser letters.” These lesser letters are not acts of discipline. But you know what they can be? Grievable. So by taking that “easy path,” this supervisor has basically just driven in circles – and put herself and her agency at risk. If you want to write a letter, start with a Letter of Reprimand. Now that is a disciplinary action. Read Ann Boehm’s September Good News column for more on how this action can save you time and money.

If back at the original fork in the road, the supervisor had taken a disciplinary action, say the aforementioned Letter of Reprimand, then she would be in a much better place now and further along to her destination.

FELTG is like my nerdy older brother. Instead of tracking miles and creating spreadsheets, we’re reading cases, studying the law, and reviewing regulations – and then sharing the strategy with you. FELTG’s Developing & Defending Discipline: Holding Federal Employees Accountable and UnCivil Servant: Holding Employees Accountable for Performance and Conduct courses give you the latest GPS coordinates to take necessary disciplinary or performance action in the most efficient way with the fewest potholes.

If you care about accountability, you can bring either of these courses to your agency. Just email me, and we’ll get your supervisors on the right path. Or you can register for our upcoming UnCivil Servant open enrollment virtual training, which takes place February 10-11 from 12:30 – 4 pm eastern. Gephart@FELTG.com