How Much Information Does an Employee Have a Right to at the Proposal Stage?

, , ,

By Deb Hopkins and William Wiley, December 15, 2020

Here’s an email that recently came across the FELTG desk:

Dear FELTG,

Our agency has encountered an issue we haven’t seen, and were wondering if you might have some insight.

Typical for my agency’s chapter 43 removals is that the employee objects to not having access to their work documents, work laptop and programs, etc. (because they are put on admin/notice leave simultaneous with the issuance of the proposal) and thus isn’t able to offer a meaningful reply. We wonder if this is a common issue, and if perhaps there is an easy remedy that we’re overlooking.

Our proposals for chapter 43 removals include specific descriptions of each performance deficiency, with identifiers to specific instances (such as case numbers or project names and dates), but do not include or attach primary documents like screenshots or work files; the materials relied upon (outside of the proposal’s detailed description of the unacceptable performance) are usually the supervisor’s letter from the end of the opportunity period notifying the employee of the unacceptable performance, and if the timing lines up, the performance appraisal in which the supervisor rates the employee unacceptable.

So if an employee wanted to base their defense on individual case files, they would not have access to them through the materials relied upon; case files/documents/screengrabs aren’t provided with the proposal. We can’t anticipate every file an employee would want, so it’s hard to handle this prospectively, but options that have occurred to us are to (1) acknowledge in the decision that the employee objected to not having access, but did not actually identify or request any documents/files that would support a defense; or (2) when an employee objects to lack of access, the deciding official can ask the employee to identify what documents they need, and we can provide them and incorporate them into the materials relied upon. Option 1 may be risky (what if an administrative judge construes their objection to be a request that we failed to respond to?), but option 2 seems like it could delay the process and blow by mandated timelines.

What do you think? Is there a simple solution (or reassuring case) we’re missing, or a risk we’re misevaluating?

And here’s the FELTG response.

Well, we can’t give you specific advice on your situation, but we can speak to the principle in general. There’s a case we cover in MSPB Law Week (next offered virtually March 29 – April 2), that involves a misconduct removal but covers the same principle of access to documents during the notice period. In the event that an agency refuses to voluntarily make pertinent documents reasonably available prior to a Board proceeding, the Board’s rules provide for the issuance of orders compelling discovery by interrogatory or deposition, and for the issuance of subpoenas. See Kinsey v. USPS, 12 MSPR 503 (1982). This language “prior to a Board proceeding” assumes there is a Board appeal, which, of course, is not the case during the notice period.

The agency has no obligation, until the discovery phase, to produce any materials it did not directly rely upon in making the proposal. As long as the employee is given the material relied upon (and in a 432 action that’s entirely what happened during the performance demonstration period, PIP, or whatever your agency calls it now), the agency has fulfilled its obligation.

In another case we talk about during MSPB Law Week, the agency referenced shortcomings in medical care the employee provided to patients, but did not provide the employee the specific deficiencies or the records themselves that contained a description of the deficiencies. In reversing that removal, here’s what the Board said:

During the processing of the appeal, the appellant continued to express her confusion over the nature of the charge and attempted, without success, to  discover  the specific reason for her removal. For example, in “Appellant’s  Motion  to  Compel Production,” the appellant’s attorney stated that the appellant was “charged with failure to maintain her clinical privileges, which, so far as she can determine, calls into question the quality of care she has given to inmates for the undetermined period of time.”

In  “Appellant’s  Prehearing  Submissions,”  the  appellant’s  attorney  asserted  that       “there  is   complete lack of constitutional due  process” because the appellant “never knew prior to the time she was fired, nor does she know now, what acts of omissions on her part are the reasons for her termination nor what standard she fell below.” Alexander v. DoJ, DE–0752-97-0313-I-1 (1998).

The principle involved in situations like these is as old as the Constitution: “Fundamental due process requires that notice of charges against an employee be sufficiently detailed to provide a meaningful opportunity to be heard. In analyzing a claim of denial of due process, the Board will examine, among other things, whether the lack of specificity in the notice affected the appellant detrimentally or caused her any surprise during the hearing.” Mason v. Navy, 70 MSPR 584, 586-87 (1996). In your case, if the proposal said something like: “In case XYZ, you failed to attach an appendix,” then, in our opinion, that would satisfy due process. However, if it says something like: “In case XYZ, you did not conform with our SOP,” then that would not satisfy due process.

A basic way to look at which documents have to be provided is to ask the proposing official what he personally looked at in drafting the proposal. Did he look at a screen shot? If so, then the safest approach would be to include the screen shot along with the proposal. If he did not, then there’s no right for the employee to have access at this stage. The good news is that the employee is not entitled at the proposal/response stage to a fishing expedition to look for exculpatory documents or other evidence. That’s what he gets during discovery. Hopkins@FELTG.com

Top 10 FELTG Newsletter Stories of 2020

,

By Dan Gephart, December 7, 2020

Our last newsletter of the year will be published next week. So barring any major late-breaking news, this is the final FELTG Flash of 2020. As we’ve done the last couple of years (2019, 2018), we’d like to take this opportunity to look back at our most popular newsletter stories (based on the number of reads and forwards) over the past year.

I know what you’re thinking: “A look back? At 2020?”

Well, yes. While many of us quarantined in our homes, federal employment law challenges continued to run rampant. As always, FELTG was here to help guide you.

This year’s Top 10 stories reveal a wide range of issues related to performance, conduct, telework, sexual harassment and, in a few cases, how those situations were impacted by COVID-19.

1 – He Claimed He Teleworked for 2 Months, but His Laptop Charger Was at the Office (June)

2 – Why a Supervisor Should Never Give a Summary Performance Rating of Unacceptable (January)

3 – Failure to Follow Instructions: A Charge That Seems Particularly Fit for 2020 (May)

4 – What Dave Wants Dave Gets: Sexual Harassment is Misconduct (September)

5 – To Err is Human — and Maybe Also a Reason to Change a Personnel Record (May)

6 – Is There a Legal Path to Fire Dr. Fauci? (July)

7 – The Great Debate: Douglas in the Proposal or Douglas in the Decision? (January)

8 – Ripped From the Headlines: A Case for Today’s World (August)

9 – Precedential Fed Circuit Decision: Which Expert Determines if Employee is Unfit (October)

10 – How Long is Too Long for COVID-related LWOP? (November)

Twelve months from now, we’ll once again share our top 10 stories. Let’s hope that we will be looking back at a much better year. Gephart@FELTG.com

Good News: With This FLRA, It’s Good to be an Agency, Part Deux

,

By Ann Boehm, November 30, 2020

A few weeks ago, I told you about the three FLRA decisions that are definitely on the pro-agency side of the bargaining spectrum: U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020); U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020); and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020). I focused that article on the first case and promised to provide in-depth coverage of the other two in a subsequent article. So here goes:

U.S. Office of Personnel Management, 71 FLRA 977

This case makes zipper clauses a mandatory subject of bargaining.

Let’s start with what may seem like a basic question: What is a zipper clause? A zipper clause is a provision in a collective bargaining agreement (CBA) that forecloses the union’s right to bargain during the term of the agreement on matters not contained in the CBA.

Agencies and unions have always had the ability to negotiate over inclusion of zipper clauses in the CBA, but until this decision was issued, zipper clauses were not mandatory subjects of bargaining. With the FLRA now stating that they are mandatory subjects of bargaining, the parties may bargain zipper clauses to impasse.

In practice, this could take away union rights to initiate midterm bargaining. It also could simply result in more clever negotiating tactics by the unions and agencies. Member DuBester suggested as much with this line from his dissent: “In reality, unions wishing to preserve their ability to initiate midterm bargaining will now be required to trade something of value at the bargaining table in hopes of securing what was, until today, a statutory right.” Id. at 985.

You heard it here agencies (thanks to Member DuBester). Be clever in negotiating. Zipper clauses are very much on the table.

U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986

This case allows for Agency head review of expiring, existing collective bargaining agreements when there is a request for renegotiation pending.

Two key statutory provisions apply in the FLRA’s analysis of this matter — 5 U.S.C.§7114(c)(1), which provides that CBAs are subject to agency head review, and 5 U.S.C.§ 7116(a)(7), which provides that it is an unfair labor practice for an agency to enforce a rule or regulation in conflict with an existing CBA if the CBA was in effect before the date the rule or regulation was prescribed.

Since 1993, the FLRA has held that for CBAs that automatically renew upon expiration, the Agency head may review the agreement the day after the expiration of the CBA window for requesting renegotiation. Kansas Army Nat’l Guard, 47 FLRA 937 (1993). This review ensures that the renewed agreement complies with any rules or regulations that changed during the previous CBA term.

What the Department of Agriculture asked the FLRA to decide in this case is whether there can be Agency head review of an existing CBA when a party requests to renegotiate an expiring CBA with a continuance provision. It’s a pretty discrete issue, eh?

Here’s what the FLRA decided. If a continuance provision extends the CBA past the original expiration date, “the first day of the extension period that is beyond the original expiration date” is the beginning of a new term. Id. at 989. So, on the first day of the extension, all rules and regulations that became effective during the previous term apply, and the Agency head has 30 days to review.

Now once again, Member DuBester was not pleased. He believes this decision is contrary to 5 U.S.C. § 7116(a)(7). According to his interpretation of the matter, a continuance provision is an agreement that the existing CBA remains in full force and effect until a new CBA is approved. Id. at 990. That would foreclose Agency head review. He even goes so far as to say the FLRA’s explanation of how it determined that the extended agreement is in “a meaningful sense” not the same one in effect “is—to put it mildly—novel.” Shazam! Id. at 991.

Well, there you have it. As I said in my previous article, none of these three decisions eliminate the bargaining rights of unions. But they do tilt in the agencies’ favor. Count on all three being appealed by the unions. Stay tuned. And for now, have fun agencies. Boehm@FELTG.com

[Editor’s note: Want to learn more about these and other recent noteworthy FLRA decisions, such as the recent decision that dealt a “major blow” to the 2017 VA Accountability and Whistleblower Protection Act, and their impact on your agency? Register now for What’s Going on at the FLRA? Case Law Updates and More on December 8 from 1 – 2 pm ET.]

And Now Another Word With … Bob Lavigna

,

By Dan Gephart, November 23, 2020

On the heels of positive vaccine news, talk about the eventual return to workplace normalcy has picked up. But that normalcy does not necessarily mean a sudden end to remote working, especially if government workers have a say.

Eighty-five percent of state and local government employees who did not work at home before COVID-19 want to continue working remotely permanently, at least part of the time, according to a recent survey by CPS HR Consulting. This fascinating report Leading Through a Pandemic: The Impact of COVID-19 on the Public-Sector Workforce, like most of the organization’s work, was focused on state and local governments. But it’s not a stretch to think that many federal employees feel the same as their more local counterparts.

Agency leaders are embracing telework, too. Several told Congress last week they also hope to make telework more permanent in the post-pandemic world. The CPS HR Consulting survey determined that “government should also view the demand for remote work as an opportunity to expand the search for talent (i.e., recruiting may no longer be limited by geography)” and that “leaders need to systematically ask employees for feedback to identify and meet the needs of all employees.” CPS HR Consulting suggests that government organizations:

  • Equip managers and supervisors with the skills to manage results and outcomes (and not just time and attendance)
  • Redesign jobs to adapt them to remote work
  • Acknowledge and communicate that employees working from home must have the flexibility to balance work and personal lives
  • Provide the tools and resources remote workers need, especially technology

“Effective leadership, flexible work environments and effective use of technology can drive employee productivity, well-being and engagement and, therefore, organizational performance – regardless of where employees are working.”

This month, we continue our conversation with Bob Lavigna, director of CPS HR’s Institute for Public Sector Employee Engagement. Lavigna (pictured above) is the former vice president of research for the Partnership for Public Service and author of Engaging Government Employees: Motivate and Inspire Your People to Achieve Superior Performance.

DG: How do you “equip managers and supervisors with the skills to manage results and outcomes (and not just time and attendance)?”

BL: When employees are working remotely, it’s no longer possible for managers/supervisors to know if employees are working productively simply by seeing them at their desks or work sites. Managing in this new and different environment is often difficult. According to one government HR executive, managing remote employees means ditching the, “If I can’t see you, you’re not working” mentality.

Instead, leaders need to measure and manage goals, results and outcomes, not just time and attendance. This often-difficult transition requires new performance metrics, tools, systems, and expectations. And, where possible, even linking financial rewards to results.

To help managers and supervisors adapt, organizations are providing training, tools, resources and tips on leading a remote workforce. Many of these programs are online (including our own CPS HR Consulting training curriculum). For example, one city has assembled a manager’s toolkit that includes tips, articles, webinars, etc. on managing a remote workforce. Organizations are also setting the expectation that managers and supervisors need to be more flexible. According to one government executive, “We’ve had to drastically change,” putting aside the usual focus on counting workers’ hours and days. “People who have kids need to take an hour off to put someone down for a nap or to make a peanut butter and jelly sandwich.”

Government may also need to change how leaders are identified and selected. Organizations need to select managers and supervisors who can manage effectively in this new environment, instead of advancing employees because they have good technical skills or have long tenures.

DG: The report revealed that employees were “anxious” and “stressed” and unsettled, but that was early on in the crisis. Do you think that the answers would be different now? 

BL: Good question. There is some evidence (e.g., from Gallup) that engagement levels were on the rise after declining at the beginning of the COVID-19 pandemic. However, the recent resurgence of the coronavirus is likely to keep everyone unsettled and on edge. I don’t think anxiety and stress will decline until we have an effective vaccine and see some light at the end of this tunnel.

DG: There’s a general assumption among many remote workers that when you work at home, you work more hours. While 34 percent of remote working respondents said they were working more, the majority are not. Is that general assumption just wrong?

BL: I think that 34 percent is a substantial number. But I question the assumption that, during COVID-19, working remotely automatically translates into working more. Given the other factors that affect the ability to work remotely, like the availability of technology and personal responsibilities such as dealing with kids and spouses at home, I don’t think it’s possible yet to evaluate whether the new working environment has resulted in increased workloads. Let’s see what happens when things get back to “normal.” What has clearly changed, however, is when work is getting done.Employees operating remotely are working when they can, while also balancing their personal responsibilities. Therefore, the traditional workday has been stretched.

And we believe this is a permanent change. As the research conducted by the Institute and others has shown, employees working remotely for the first time want to continue this arrangement permanently, at least part-time. In other words, the world of work has dramatically changed. Organizations, including in government, need to adapt to – and not resist – this evolution. Otherwise, government will not be able to attract and retain top talent.

DG: Some employees view attempts to engage them skeptically. How do you get past that?

BL: In our work conducting engagement surveys across the nation, we’ve encountered this skepticism. I remember one employee who stated during an employee engagement kickoff meeting that, in his opinion, the organization’s focus on engagement was merely a cynical attempt to squeeze more work out of employees. My answer was that efforts to improve engagement – done right – should be a win-win. Employees feel better about their work and their organization, and, therefore, are motivated to deliver for the people they serve.

But what does “done right” mean? It means surveying employees to understand empirically what the workforce issues are, preserving the confidentiality of employees’ responses, sharing survey results, making a long-term commitment to improving engagement and – most important – taking action on survey results. Organizations that survey and then fail to act on the results will see a decline in engagement – and an increase in skepticism. And they will deserve these outcomes.

DG: What role does onboarding play in the eventual success or failure of employee engagement efforts? And, if it does have an impact, how do you make sure that remote onboarding lays the groundwork for successful employee engagement?

BL: You only get one chance to make a first impression. Research, including by the Partnership for Public Service, has shown that effectively onboarding new employees results in a higher level of engagement, lower turnover and faster time to full productivity.

But it’s important to define what onboarding is – an integrated set of activities during the new employee’s entire first year that provides the information, support and resources the employee needs to succeed.

Of course, like most activities with a remote workforce, onboarding becomes more complicated. But the fundamentals are the same – provide tools and resources, connect with the supervisor, assign work, set expectations, deliver training and provide feedback. For remote workers, these steps may need to be done virtually. I have worked remotely from my home in Madison, WI for two organizations (way before COVID). In both cases, I was onboarded pretty seamlessly, including setting up my laptop, printer, etc. It can be done, even with a remote workforce.

[Editor’s note: Bring FELTG’s popular webinar training Manging a Mobile Workforce: Tools for Accountability to your agency. For more information, contact Dan Gephart at Gephart@FELTG.com]

How Long is Too Long for COVID-Related LWOP?

, ,

By Deborah Hopkins, November 17, 2020

Nearly every day, we at FELTG get questions about COVID-related federal workplace issues. Here’s a recent one worth sharing with the rest of the FELTG Nation.

Dear FELTG:

I was wondering if there was any guidance on how long an agency must allow an employee to remain on Leave Without Pay status if the employee is high risk. Hypothetically, we have employees working in the stores so telework is not an option. If an employee has been given a medical note stating they should avoid exposure or remain at home, and has now been on LWOP for several months, where’s the limit? At this time, there is no end in sight with regards to the pandemic, so no return to work in sight either.

And our FELTG response:

In some ways this is a hypothetical “who really knows” situation because we don’t have any precedent for this pandemic. OPM has encouraged flexibility with telework and scheduling, but obviously someone who works in a store needs to be onsite to do that. Here are a few general thoughts related to your hypothetical.

The employee’s LWOP may be a reasonable accommodation, since the agency is granting LWOP because the employee’s condition prevents him or her from coming to work. Of course, whether it’s an RA depends on why the employee is high risk: Does the employee have asthma or an autoimmune disorder, for example (disabilities)? Or is the employee over 65 and high-risk according to CDC guidance (not a disability)?

Assuming this is an RA, the proper analysis would be to ask at what point the LWOP becomes an undue hardship for the agency, because EEOC’s stance is that attendance is not an essential function of a federal job. And if it’s not yet documented as an RA, that would be an important thing to do, to show the agency fulfilled its obligation to accommodate the employee.

The next thing to do, after the LWOP was determined to be an undue hardship, would be to consider reassignment to a job the employee could perform from home.

If all that failed, this might be a case where the agency could remove the employee for medical inability to perform, depending on what the medical documentation says, and whether a reassignment was available.

If the employee is high-risk simply because of age, or because they live with someone who is high-risk, then none of the RA steps above will apply. In that case, the agency would need to issue a return to work order (whenever LWOP goes beyond a reasonable time), and then could remove the employee if they refused to report. As far as how much LWOP is too much, we really can’t answer that – some agencies allow employees to use it for years. Others are more strict. It really depends on your agency’s staffing situation.

Down the road, this might become an excessive absence removal, especially if the LWOP goes on for over a year, and the return to work is not foreseeable (be sure to follow the Cook analysis if you go this route, and look at cases to help determine how much leave is “excessive” under the law).

All that said, this employee could be reassigned as well, not as part of RA but because the agency has a business need to fill a job elsewhere and doesn’t want to fire the employee.

This is a tough situation. COVID is out of everyone’s control, and agencies want to protect high-risk employees. However, agencies also have to get the work done. Lots to consider here. Good luck! Hopkins@FELTG.com

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Threats of Violence: Assessing Risk and Taking Action

, ,

By Dan Gephart, November 17, 2020

While the nation is grappling with a pandemic, the government’s most well-known scientist has been besieged with death threats. And as more than 150 million people exercised their right to vote earlier this month, state and local officials, as well as volunteer poll workers, also faced violent threats as they attempted to count the ballots.

This dangerous risk to our nation’s civil servants is not new.

A September 2019 GAO report and a subsequent article by Government Executive laid out the stark reality of the dangers faced by federal employees at one particular agency — the Bureau of Land Management. The report included numerous examples of violence against BLM employees, including an employee who was stabbed outside a federal building, and another who received hundreds of aggressive calls, including death threats, after someone posted his phone number on Twitter.

So you bet I listened closely last week as FELTG Instructor Shana Palmieri, LCSW, delivered the third and final of the webinars in her Behavioral Health series — Threats of Violence in the Federal Workplace: Assessing Risk and Taking Action. (The previous webinars were Understanding and Managing Federal Employees with Behavioral Health Issues and Suicidal Employees in the Federal Workplace: Your Actions Can Save a Life.)

Violence can come from a current or former employee, a customer/patient, a domestic partner, a personal conflict that spills into the workplace, or someone not known to the agency. Regardless of where the threat is coming from, it’s awfully hard to predict. More than 3 percent of the general US population commits one or more violent acts each year.

What are the factors that lead to violence? A lack of education, decreased social stability, and high unemployment are factors.

What’s not a factor? Mental illness. The majority of patients with stable mental illness do NOT present an increased risk for violence. In fact, researchers estimate that only 4 percent of violence in the United States can be attributed to mental illness.

“The potential of violence lies within all of us,” Palmieri said during the webinar. “It’s something anybody can be driven to as a human, not just a result of mental health (issues).”

During the webinar, Shana offered numerous suggestions for risk assessment and response management plans, with a focus on “intervention early on and using practices that are evidence-based to mitigate or de-escalate the potential for violence to occur.”

If you missed the webinar, and you’d like to book Palmieri, who handled the psychiatric aftermath of the Navy Yard shooting in 2013, to come to your agency (virtually or in-person), email me at Gephart@FELTG.com.

In the meantime, you can share with your staff these techniques for de-escalating aggressive and potentially violent behavior, which were discussed more in-depth during the training:

  • Respect personal space – do not move towards employee. Don’t lean into the employee. Keep your distance.
  • Be aware of your body position. Stand at an angle. “You don’t want to come in with a defensive stance. If I’m standing face-to-face, staring them right in the eyes that’s a defensive stance,” she said.
  • Use a calm voice. If the aggressor gets loud, speak quietly. People tend to mirror those they are engaging with.
  • Be empathetic and validate the person’s feelings. You don’t have to agree with the content of what the individual is saying, but you can let them know you understand that they’re feeling angry. “Stay calm,” Palmieri said. “Be present.”
  • Avoid all power struggles. People who are angry will try to bring you into the fight. Don’t let them trigger you. “It’s very important to avoid that power struggle,” Palmieri said. “It will only escalate the dynamic. It’s not the time to fight the battle.”

Gephart@FELTG.com

Another Look at Lee v. FAA: Getting a Disciplinary Action Right

, ,

By Barbara Haga, November 17, 2020

In a prior column, I addressed the case of Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020) in regard to failure to truthfully respond during an investigation and potential (or lack of it) for rehabilitation.

To recap: Lee was a civil engineer who was conducting extensive personal business on duty. The agency initially proposed removal but lowered the penalty to a 45-day suspension. The arbitration resulted in the penalty being reduced to 30 days. The Federal Circuit upheld the 30-day suspension. This month, I delve into the details of how the action was handled and also take a look at the impact of union contract language on management’s ability to discipline.

The investigation

The initial inquiry began apparently after an e-mail containing inappropriate pictures was sent to Lee by a coworker. That resulted in a request to obtain Internet and email history from both the sender’s and Lee’s work computers.  There is nothing in the Federal Circuit decision that indicates that the supervisor, Mr. Smith, knew about her extensive use of the computer and Internet for personal business at that point. When the report was submitted it revealed the following:

The forensic report of Ms. Lee’s FAA internet history spanned more than 1,900 pages and revealed that between January and April 2017, Ms. Lee conducted 33,968 online transactions. Mr. Smith saw concerning levels of activity on eBay, Amazon, and Etsy, among other non-work-related sites. He was particularly concerned that, both during and after work hours, Ms. Lee was frequently visiting Etsy where, as he discovered, she sold handmade crafts through her account, “BoosTinyBits.”

Analysis of the degree of misuse

When dealing with computer misuse, it is important to get the details straight. In her response to the action, Lee noted that the initial report did not account for time that windows were left open for extensive periods of time when there was no activity on that page. Because Lee raised this, Smith requested a supplemental investigation. Here’s what happened:

The supplemental report excluded obviously work-related transactions and removed from the time calculations any periods where the time between active clicks on a certain webpage was more than five minutes. Still, 22,829 internet transactions remained. Based on this narrowed data, the supplemental report calculated that Ms. Lee had an average of 1 hour and 44 minutes per day of not clearly work-related internet use over the 45 workdays on which her usage was tracked.

The first sentence is troublesome. It took a supplemental report to exclude the obviously work-related transactions? If the report was used in the proposal to substantiate misuse, it needed to clearly identify what was misuse. Perhaps there was an issue because the original purpose of the analysis was to determine if there was something inappropriate going on between Lee and her coworker and the report wasn’t geared to deal with misuse related to conducting personal business, but the advisor who was working this case should have been looking at this in preparing the proposal. Dropping the number of transactions by 10,000 or roughly 1/3 after her reply is huge.

The issue about windows being left open should also have been addressed before the proposal was issued. I have been known to leave windows open for full days!  So, any data about how long I was actually doing something on that site would be misleading without checking the activity on the page. It appears that the IT staff was able to provide this information since it is included and accounted for in the supplemental report.

The Federal Circuit decision states that original removal was reduced to a 45-day suspension because of “Lee’s lack of prior formal discipline, her satisfactory work performance, her five years of federal service, and her statement that she had stopped Etsy transactions at work, stopped accessing the Etsy website, and ceased ‘all nonwork’ related usage of Amazon and eBay.’”

I can’t help but think that another factor that led to the mitigation was that the proposal cited a significantly greater amount of misuse than could be substantiated.

Conducting the investigation

One of the charges against Lee was lack of candor. To prove lack of candor, you have to be able to show that  the person failed to disclose something that, under the circumstances, should have been disclosed to make the statement accurate and complete. Lee received written notice of the potential charges and was scheduled for the interview in advance.

The decision states: “At several points, Ms. Lee asked the interviewer to clarify his questions, but he told her that he could not depart from the questions as written.” What kind of questioning is that? Was a robot doing the interview?

Lee argued in her appeal of the arbitrator’s decision that she didn’t knowingly provide incomplete answers to the interviewer because she did not understand the questions. The court described the questioning as “inartful,” but clear enough to warrant more than the one-word answers Lee gave. The FAA survived this challenge, but agencies should be able to do better. Trained investigators should be able to rephrase and elaborate further on the point of the question.

Contract Language

Participants in my Advanced Employee Relations course have heard me address this. [Editor’s note: Register now for the next Advance Employee Relations training December 1-3.]

Union contract provisions that may seem routine can come back and bite you. This case is a perfect example. The arbitrator upheld every one of the agency’s charges – misuse of government property, misuse of government time, and lack of candor. However, the arbitrator mitigated the penalty to a 30-day suspension. The union agreement required that disciplinary action be prompt.  The arbitrator said that waiting five months after the investigatory interview to initiate the action was not prompt, so a lower penalty was warranted. The Federal Circuit did not disturb that finding.

There is no information in the decision about why there was a delay.  Did it take several months to get the supplemental investigation? Was the manager out for several months during the decision phase of the action? Whatever the reason, having your legitimate 45-day suspension reduced to 30 is a high price to pay for not being prompt. Haga@FELTG.com.

Compound the Pain: When EEOC Orders Agencies to Pay Interest on Damages

, ,

By Meghan Droste, November 17, 2020

Do you remember March 2020? I think I do, although sometimes when I think back to things I did in early March—including traveling across state lines and attending large events!—it feels like years ago, rather than just eight months or so.  Well, one thing I did in March was share an EEOC decision in which the Commission had some serious concerns about the agency’s ongoing and repeated failure to comply with the Commission’s orders.

In Alma F. v. Department of the Army, EEOC Pet. No. 2019004337 (Feb. 4, 2020), the Commission described how the agency had failed to provide evidence of compliance in 19 other cases, all with petitions for enforcement from 2019.  (You can read more here: You and What Army?)  As I noted in my article, the Commission doesn’t have an army to back it up when it orders agencies to take certain actions.  Unlike in cases in which agencies fail to comply with EEOC regulations about processing complaints or with orders from administrative judges, the Commission seems reluctant to issue sanctions, such as default judgment, when agencies fail to comply with orders on appeals.

So what can and does the Commission do?  Well, as it warned in Alma F., it can issue a show cause order to the head of an agency or certify the issue to the Office of Special Counsel.  (By the way, this warning doesn’t seem to have made much of an impact.  In a September 2020 decision, the Commission noted the same issue was ongoing in more than 20 cases.  See Calvin D. v. Dep’t of the Army, EEOC Pet. No. 2019004326 (Sept. 30, 2020).)  The Commission can also order an agency to pay interest on damages to address an agency’s failure to meet deadlines.

That is exactly what happened in Lyda F. v. Dep’t of Homeland Sec., EEOC App. No. 2020002790 (Sept. 16, 2020). In 2017, the Commission reversed the Agency’s FAD and remanded the complaint for correction and amendment to the accepted claims, and a supplemental investigation. The Commission ordered the agency to complete the supplemental investigation within 120 days and provide a copy of the ROI to the complainant no more than 30 days later.

If the complainant requested another FAD, the Commission ordered the agency to issue it within 60 days of the request.  The complainant requested a FAD on the supplemental ROI on July 11, 2018.  The agency did not issue the FAD—in which it found liability for both harassment and retaliation—until July 10, 2020, two years after the complainant requested it. The Commission found that interest on any compensatory damages award was the appropriate way to address the agency’s obvious failure to meet its deadline.  It did not label this as a sanction, but I think that is a fair way to look at it.

Depending on interest rates, the amount of the damages award, and the length of the delay, compounded interest could result in just a few hundred dollars increase in the money an agency must pay to a complainant.  But the longer the delay and the larger the award, the more likely the agency will be forced to pay thousands of dollars more because of a delay. The best-case scenario is of course to avoid violating Title VII or any of the other civil rights statutes, but if that has already occurred, make sure you don’t add to the problem by taking too long to address it. Droste@FELTG.com

GSA Offers Guidelines for Re-entry Into Physical Workspaces

, ,

By Michael Rhoads, November 17, 2020

The good news about the pandemic is we (hopefully) may start to see a light at the end of the tunnel. When will a vaccine be ready? When will it be widely available to the public? These questions do not have a definitive answer yet.  However, it is important to prepare now for what steps your agency will have to take once it is feasible to return employees to shared office spaces.  GSA recently put out some guidelines to help agencies prepare for a return to the office in the Return to Workplace Strategy Book.

Office etiquette – a new paradigm

When returning to the office, it is important to prepare employees for a paradigm shift in their behavior. The recommendations from GSA specify that “Frequent Cleaning by Individuals” will be necessary. This may be a sudden change for some employees after a long hiatus on telework, but it’s worth noting that employees “… should not rely on others to disinfect surfaces.” The agency should offer the cleaning supplies, but those supplies will be for agency office use only.

While individuals will be responsible for their own workspaces, the shared workspaces such as conference/meeting rooms, breakrooms, and restrooms will also get a makeover.

For meeting and conference spaces, it is important to ask can the meeting be held virtually instead? Since the capacity of meeting rooms will not be the same as before, consider how many people can fit in the room? Can the door to the meeting room remain open to allow for more ventilation?  Additionally, does the meeting room have the technology to loop in employees who are attending virtually?

Phases for reopening the office

Before the first person walks back in the door, determine the building capacity with your GSA building manager to determine how many employees your office can safely accommodate. A phased reopening approach is recommended.  When determining how many people to bring back in each phase, consider the workspace footprint and how many people may be able to inhabit the space at one time.

Per the GSA: “[T]he reduced capacity of these spaces may affect the number of people who can return to the workspace per phase.” Reassessment will loom large in your phased reopening.  Keep abreast of changes to federal, CDC, and local guidelines.  Employee feedback should be a part of your decision-making process. Also, consider if more parking spaces will be needed by employees who previously used public transportation and now prefer driving.

Individual workspace planning

When considering how to distance your employees’ workspaces, the Return to Workplace Strategy Book provides some great floor plan examples of how to phase in employees safely.  The office capacity used for these examples reflects an office with the maximum capacity of 33 cubicles, and 9 private offices.  Pathways are the spaces where an individual can walk freely.

30% Capacity: The most conservative model would allow individual cubicles to maintain physical distancing at all times. No additional barriers, such as clear plastic shields above cubicle walls to extend the height of the wall, would need to be added. Individuals would be placed in cubicles that allow for other co-workers to move through pathways without contacting a cubicle’s space.

50% Capacity: When half of the office capacity is used, physical distancing mostly would be maintained for individual cubicles except when co-workers walk around in pathways. Barriers such as clear plastic dividers would be added to the top of some cubicle walls to extend the height of the cubicle wall.

75% Capacity: Personal responsibility is the key to this level of employee capacity. Barrier use is important since employees would be encroaching on each other’s space more frequently via pathways around the individual’s cubicle. Clear plastic barriers on top of all cubicle walls in most areas of the workspace would be necessary. At 75% capacity, the use of smaller meeting spaces as individual offices should be considered.

Additional takeaways

Touchless Experience – GSA must approve any changes to fixtures such as doors, faucets, and toilets. However, it is a good idea to update these items to touchless fixtures to reduce employee contact with one another in high touch areas.

Occupancy Monitoring – Sensors can be placed in lobbies, meeting rooms, and break rooms to keep track of how many people are in a space at a given time.

Signage – The guide also offers templates for signage to put up around the office, not only for the employee workspace, but for lobbies, restrooms, breakrooms, and wellness/well-being areas.

The most important takeaway is agencies should be flexible in their approach to returning to the office. As the guide states: “Each agency will need to address specific conditions location by location.” In the coming weeks and months, we will face many challenges brought on by this pandemic, but I am positive the lessons we learn now will only make us stronger for the future that awaits us.

Happy Thanksgiving to all!  Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com

OPM Regs Provide Clarification on Clean Record Settlements

, ,

By Deborah Hopkins, November 17, 2020

Earlier this week, new and updated OPM regulations on 5 CFR Parts 315, 432 and 752 went into effect. Among the most significant changes included guidance, inspired by Executive Order 13839, on what agencies may and may not do when settling an employment law dispute with an employee. We’ll look at the specific language in § 432.108, the principle of which is also applicable to part 752 actions.

  • 432.108 Settlement agreements.

(a) Agreements to alter personnel records. An agency shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse action.

FELTG Note: What does this mean for litigation files? Agencies may need to keep track of documentation for litigation in another forum, such as EEOC or OSC. A narrow reading means an agency probably could keep a litigation file without violating this limitation. We won’t know until more guidance is issued, or the matter is litigated before the still-lacking-a-quorum MSPB. One other item to point out: Proposed action memos are not normally retained in official employee files, as they are preliminary steps that may or may not lead to future action.

(b) Corrective action based on discovery of agency error. An Agency may take discipline out of the record if it discovers errors of fact or legality. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error.

FELTG Note: This makes sense. If an employee is disciplined and it turns out the discipline was not warranted (for example, the discipline was whistleblower reprisal), then the discipline should be taken out of the record.

(c) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence  comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action.

There’s a whole lot more on these regulations. If you missed the webinar I held earlier this week, we’re reprising Implementing New OPM Regs for More Effective Disciplinary and Performance Actions on December 3 at 2 pm. Register now before it sells out.