Tips From the Other Side: January 2020

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By Meghan Droste, January 15, 2020

In addition to representing federal employees (and having the pleasure of teaching many courses with FELTG), I spend about half of my time representing private sector and local government employees.  This gives me an interesting comparison of how attorneys and judges handle cases in federal court with how agency attorneys and administrative judges handle cases before the Commission.  I am happy to report that the experience before the Commission is often more pleasant. Things (generally) move more quickly, although I know that might be difficult to imagine, and the formal complaint process creates a record from the start, avoiding some of the hassles of fighting over information in discovery. 

There is one notable difference that makes things more difficult in the federal sector process and I hope you will indulge my moment on the soapbox discussing it. In several recent cases, I have found that agency attorneys are not producing emails from key witnesses as part of their document productions. I always ask for at least some emails in every case. I have yet to see a case where nothing was discussed over or sent by email. Unlike in my other types of cases, it seems that the attorneys on the other side in federal sector cases do not even think about checking with witnesses or even named harassers when gathering responsive documents. As a result, we end up spending unnecessary time on deficiencies letters and phone calls, and sometimes even motions to compel, to get documents that are clearly relevant to a complaint. If any of this sounds familiar to you, I strongly encourage you to reconsider your discovery practices.

As a quick reminder, the Commission considers discovery and the hearing process in general to be an extension of the investigation.  That means that parties are entitled to obtain “relevant information” for a “reasonable development of evidence on issues raised in [a] complaint.”  See EEOC Management Directive 110, Ch. 7, § IV(A)(1). If witnesses, harassers, or management officials have discussed the issues in the complaint (or, in some cases, engaged in harassment) by email, those emails are relevant.  You should be issuing litigation holds to anyone who might have relevant information at the outset of a case and also gathering emails from them as part of your normal litigation practice.  Even if a complainant does not request emails in discovery, you should still be gathering them for yourself so you know what is out there and to avoid any surprises when witnesses testify during a deposition or at hearing. Droste@FELTG.com

And Now a Word With … Michael Bogdanow

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By Dan Gephart, January 7, 2020

Michael Bogdanow, Acting Director of Regional Operations, Merit Systems Protection Board

When I first started working in the area federal employment law many years ago, I called around, looking for advice. One highly regarded and experienced attorney told me: If you need to understand anything at all about the Merit Systems Protection Board, talk to Michael Bogdanow (see photo).

I’ve been lucky enough to work with Bogdanow, MSPB’s Acting Director of Regional Operations, on a conference advisory board and to see him present many times. Whether it’s case law, procedure, or MSPB history, Bogdanow speaks with intelligence and authority, in his own unpretentious manner.

It makes sense that Bogdanow knows MSPB history. He has lived it. Not only was Bogdanow there at the agency’s inception, he actually worked for several years with the Board’s predecessor – the Civil Service Commission. The Board has faced its share of tests over its 40-plus years in existence, yet nothing like what’s happening now. It’s been three years since the Board lost its quorum, and it will soon be a whole year that the agency has gone without any Board members at all. Meanwhile, the pile of PFRs awaiting Board review continues to grow. (For more on that, be sure to read our earlier interviews with MSPB General Counsel Tristan Leavitt and James Read, Director, Policy and Evaluation.)

Bogdanow noted that Board has “always been ready to meet huge challenges.”

“Within its first three years, [the MSPB] was hit with about 11,000 appeals filed by fired striking air traffic controllers,” Bogdanow said. “And in 2013, three times that number of furlough appeals were filed as a result of sequestration. In both instances, the AJs and the Board worked almost non-stop to assure that the appeals would be decided with as little disruption to the normal workload as was possible under the circumstances.”

There is one thing that hasn’t changed over the MSPB’s long history, and that’s the myth that it’s impossible to fire a fed. That’s where we started our conversation with Bogdanow.

DG: Why do you think that myth persists that it’s impossible to terminate a federal employee, and what can be done to shatter it?

MB: You are certainly right, this is a persistent myth. One of the motivations for enacting the Civil Service Reform Act of 1978 was that same myth. A lot of changes were implemented in the law to put it to rest, but they did not succeed in ending it, and now more than 40 years later, the same argument endures.

However, OPM recorded a total of 29,785 executive branch employees who were removed for cause in fiscal years 2013-2017, and that number is far lower than the actual number because OPM does not track actions taken by the Postal Service, the intelligence community, and certain other agencies. During that same period, the Board decided more than 44,000 adverse action appeals, and fewer than 600 of them were reversed or mitigated.

I think that a significant part of the reason for the belief that federal employees cannot be terminated is that there are laws and regulations, as well as agency policies and procedures, that establish the system for removing employees, and to agency officials who do not use them regularly, they may seem daunting. In fact, those authorities are guides for how to take and prosecute such actions, and, if followed carefully, the process will become more obvious and yield the result the agency expects. It is not an exaggeration to say that the Board frequently sees lack of proper preparation both before agencies take an adverse action and also in prosecuting the action on appeal that contribute to the perceived difficulty of making a removal action stick. (Needless to say, we see this from both parties.) Of course, agencies must also be prepared to defend themselves against affirmative defenses appellants may bring, most frequently discrimination and whistleblower retaliation claims.

I should note that an MSPB Office of Policy & Evaluation publication in December 2016 found that rather than preponderant evidence, which is the standard required for proof of an adverse action before the Board, “90 percent of proposing officials and 84 percent of deciding officials reported that the standard they used was ‘beyond a reasonable doubt,’” the standard used in criminal proceedings. Thus, management’s perceptions of the hurdles faced in taking an action actually exaggerate their difficulty. That same publication noted the three greatest perceived barriers to removal were the agency’s culture toward taking such actions, the level of support given by managers and leaders, and the quality of service provided by the human resources office, none of which is attributable to the systems created by title 5 or to the MSPB.

In short, while nothing will guarantee 100 percent success, I would suggest that better preparation, from before an action is proposed and throughout the appeal process, would help shatter the myth.

DG: Why are removals most often overturned?

MB: MSPB generates statistics on many aspects of the appeals we address, and for adverse actions and performance-based cases, that includes the number and percentage of cases reversed on procedures, on the merits, because of a finding of discrimination, and because of a prohibited personnel practice (PPP) other than discrimination. Those statistics do not break down the categories based on the specific procedural failure or the problem found with the merits of the case. Leaving aside the number of cases reversed because of discrimination or a PPP, which are relatively small, the percentage of cases reversed on procedures is consistently lower than the percentage reversed on the merits.

To me that suggests that, contrary to the view that reviewing authorities like the Board throw procedural obstacles in the way of agencies so that they lose meritorious cases on the basis of insignificant or irrelevant procedures, in fact, it is the agency’s failure to meet its burden of proof that causes most reversals. In my view, agencies’ failure to do their homework by thoroughly investigating before bringing charges and preparing their cases to make the most persuasive presentation to the Administrative Judges and the Board account for a substantial percentage of merits reversals.

Another important aspect of Board caselaw that is frequently given insufficient attention is being sure to bring the correct charge. Because the Board and courts over the years have attached significance to the words used in a charge, and have insisted that agencies prove what they claim, agencies must know that criminal charges require proof of all elements of the crime, and that certain misconduct charges require proof of the employee’s intent. The distinctions between charges such as “theft” and unauthorized possession, between “insubordination” and failure to follow instructions, “falsification” and misstatement or lack of candor, between “threats” and inappropriate conduct, all make a tremendous difference in the proof an agency must present. If an agency has not assured itself that it can prove the specific charge it brought, it is unlikely to prevail.

Is that fair? Ask the employee who may be branded a “thief” when his only misconduct was that he borrowed or had unauthorized possession of government property, or the employee tarred as being insubordinate when he simply failed to follow a supervisor’s instructions.

There is little doubt that over the years, more attorneys have become skilled at raising challenges to adverse actions taken against their clients, which has led to increasingly technical, “legalistic” arguments. Moreover, adverse actions and performance-based actions were both created by Congress, so are statutory in nature, and are reviewable at a US Court of Appeals. As a result, the parties must both be prepared to argue and respond to the due process requirements of statute in an increasingly law-based environment.

DG: Only about 5 percent of terminations are for poor performance, and the rest are for misconduct. Why is there such a disparity?

MB: If your question really is why there are so many more actions taken because of misconduct than poor performance, I’d say that’s because there’s an infinite variety of misconduct on which charges can be based, misconduct is generally pretty obvious, it can be a one-time act, and it tends to get supervisors’ attention more quickly than does poor performance. Moreover, taking an action for misconduct does not require that the agency first take a set of steps to address the misconduct.

However, if you are asking why more actions based on performance are taken under chapter 75 (“adverse actions”) than chapter 43 (“performance appraisal”), I’d venture to say that although the CSRA was intended to make it easier to take action against poor performers, agencies have not found that to be the case. Chapter 43 establishes a system, one that governs not just separating or demoting a poor performer, but also establishing performance requirements, rewarding good performance, appraising performance, and providing an opportunity to demonstrate acceptable performance before removing an employee. Thus, there are more preparatory steps an agency must take to be able to effect an action under chapter 43. Still, the heart of chapter 43 is found in employee performance standards, which must be written so as to inform an employee of the tasks he must perform and the specific indicia of performance he must demonstrate in order to be rated at the various levels against which he is measured.

Absent valid performance standards, an action under chapter 43 will not succeed, and because a chapter 75 action based on performance may not be sustained if the performance at issue is “governed by and meets” the performance standards, valid standards are one chapter 43 requirement that cannot be ignored. Make no mistake, writing proper, understandable, substantive performance standards is often difficult, but Congress clearly expected that such standards would be implemented for the benefit of both the employee and the agency. In return for doing all of the required preparation before an action is taken, Congress gave agencies two major advantages over chapter 75. First, their action will be sustained if they meet a lower burden of proof, substantial evidence rather than preponderance of the evidence, and second, the Board may not mitigate a chapter 43 action where the poor performance is proven.

Board cases show that not only do some agencies fail to draft sufficient performance standards, but they may also add specific requirements to the process for taking an action under chapter 43 that are not imposed by regulation or case law. For instance, while the statute and the Board require that an employee be given an “opportunity to demonstrate acceptable performance” before an action is taken, neither has specified what the opportunity must consist of, how long it must be, or that training is a necessary component. Many agencies, though, add such requirements in their own policy and procedure documents.

Regardless of which of the two questions you are asking, I think the short answer is that taking an adverse action, even one based on performance, is a lot quicker, requires fewer preparatory steps, and can be accomplished even if all of the safeguards set by chapter 43 are not in place.

DG: What information could our readers learn that could make them more likely to pursue a removal for poor performance?

MB: I’m not sure that I know how to answer that question. Agencies have certainly had enough time to get comfortable with chapter 43 requirements, so suggesting that they become familiar with chapter 43 and even some of the legislative history of the CSRA that explains the reasons Congress chose to establish it might not be enough. It is, though, good management practice to comply with the requirements of chapter 43, not just for taking actions against poor performers, but also to do what 5 U.S.C. § 4302(a)(3) requires, to “use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, … [and] retaining … employees.”

Agencies must have performance standards for their employees, and if those standards are valid and accurate measures, the hardest part of the chapter 43 process is already done. Providing an “opportunity to demonstrate acceptable performance” as required by § 4302(b)(6), means just providing a chance for the employee to work for a reasonable period of time (which depends on the nature of the work) on his or her regular tasks so as to be able to show the ability to successfully perform those duties – or not. Therefore, the remaining parts of chapter 43 should all be straightforward, and in return, the agency will have a considerably lighter burden of proof if the employee files an appeal, and its action will be insulated from mitigation.

One other thing I would mention: I have often been asked to speak to agency groups about chapter 43, and when I ask why, since MSPB rarely sees appeals from chapter 43 actions, I’ve been told on several occasions that once an employee goes through the chapter 43 pre-action process and is unsuccessful, he recognizes that he is better off moving on to a job he is better able to perform than to fight the action.

Gephart@FELTG.com

The Top 10 FELTG Newsletter Stories of 2019

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By Dan Gephart, December 17, 2019

Before we put the wrap on 2019, all of us here at FELTG Headquarters want to thank all of you who make up what our Past President William Wiley dubbed “FELTG Nation” —  our great attendees, customers, and readers. It’s been quite a year as we all worked together to make the government’s accountability systems more efficient.

We couldn’t do what we do without our uber-talented group of instructors, including Barbara Haga, Katherine Atkinson, Ann Boehm, Meghan Droste, Dwight Lewis, Anthony Marchese, Shana Palmieri, Jim Protin, Ricky Rowe, and Joe Schimansky. And we can’t forget the continuing contributions of Bill Wiley and our other past president Ernie Hadley – two absolute legends in the field of federal employment law.

Unless any major stories break before then, we will see you all again in the new year. And it’s a big one for FELTG, as it marks our 20th year of federal employment law training. Meanwhile, we’re expecting Supreme Court decisions on age discrimination and gender stereotyping, both of which will have a major impact on the federal workplace, as will OPM’s regulations implementing President Trump’s executive orders. And we’ll continue to wait with our remaining ounce of patience for someone – anyone, actually – to fill the empty positions on the Merit Systems Protection Board.

For now, let’s take a look back at this year. Introducing the 10 most popular articles (based on the number of reads and forwards) from the FELTG Newsletter in 2019.

  1. Can an Agency Track Down a Former Employee and Discipline Him?
  2. Out of Control
  3. The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems
  4. Cook-ing a Sick Employee
  5. Can You Fire a Federal Employee for Body Odor or Bad Hygiene?
  6. Deep-fried Cubicle Chicken, Naked Employees, and Unwritten Rules
  7. Legitimate Non-Discriminatory Reasons When Preselection is a Defense
  8. Cook, McCauley, and Savage: What if AWOL is Involved?
  9. Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?
  10. Excessive Absence and the Third Cook Factor

Here’s to a wonderful holiday season and a successful 2020 for all!

Cook, McCauley, and Savage: What if AWOL is Involved?

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By Barbara Haga, December 11, 2019

This month we are looking at Cook cases from another angle.  What are the charges when there is AWOL included in the time off?

Here is a scenario that a former class participant inquired about:

In 2018, Employee X was on 154 hours of approved leave. So far in 2019, Employee X was on approved leave 160 hours. In addition, Employee X was AWOL in 2018 for 568 hours and AWOL for 1120 hours during 2019. The absences appear to have been due to medical reasons.  Also, there is a separate issue of failure to follow leave procedures.

The questions posed were:

1 – Can AWOL be counted as part of an excessive absence charge? If not, do we have sufficient absence under approved leave for the excessive absence charge?

2 – At the same time, can and should we have a separate AWOL charge?

Note: There will be another charge of failure to follow leave procedures.

AWOL and Excessive Absence

Remember that in Cook v. Army, 84 FMSR 5013 (1984), the Board cited OPM guidance from the old Federal Personnel Manual (FPM) that provided an exception to the general rule that an adverse action cannot be based on an employee’s use of approved leave, and then set out the Cook factors that we know and love.

The sentence from the FPM shouldn’t be read lightly. The exception is about leave that the agency has approved. Over the years, there were Board decisions that approved the use of excessive absence charges that included AWOL hours. McCauley v. Interior, 116 MSPR 484 (2011) was one of them.

McCauley is an important case because it clarified what kinds of leave could be included in an excessive absence charge. In McCauley, Interior had actually charged the excessive absences and AWOL separately.  However, in its decision, the Board stated, “Because the efficiency of the service may suffer in the absence of an employee’s services, regardless of the type of leave used, we hold that whether the leave is sick leave, annual leave, LWOP, or AWOL will not be dispositive to a charge of excessive absences.” McCauley further clarified that FMLA hours could not be counted in the excessive absence charge since they are protected:

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

Four years later, the case of Savage v. Army, 2015 MSPB 1, resolved the AWOL question. AWOL hours don’t fit under excessive absence charges:

Regarding the 800 hours of AWOL, it has been suggested in dicta that periods of AWOL may be included in a charge of excessive absences. McCauley, 116 MSPR 484, ¶ 10. However, while it is true that AWOL is a type of absence, the Cook holding was based on provisions of the Federal Personnel Manual (FPM) specifically concerned with excessive use of approved leave. See Cook, 18 MSPR at 611-12. Although the FPM was abolished in 1993, the Cook holding has survived for decades since, and we see no grounds for revising it now. Accordingly, to the extent that periods of AWOL are included within a charge of excessive absences, we will not consider those periods under the Cook standard, but instead will consider them as an AWOL charge.

How Much AWOL is Needed to Sustain a Removal?

The second charge in McCauley was AWOL. The agency cited that the employee had been AWOL for 22 consecutive days in 2009.  Assuming an eight-hour workday, that’s 176 hours.

She had also been previously reprimanded for AWOL in November 2008.  Even though the excessive absence charge was not sustained, the removal was sustained on the basis of the AWOL. In Crutchfield v. Department of the Navy, 73 MSPR 444 (1997), a removal was sustained based on 14 days of AWOL.

Many of you who still have tables of penalties might find that such tables identify excessive unauthorized absence as over five days, and the range of remedies often goes up to removal for the first offense. In other words, AWOL is a serious charge and you don’t need a lot of it to show an impact on the efficiency of the service.

How Many Approved Hours are Needed for an Excessive Absence Removal?

The case we often cite on this point is Gartner v Army, 107 FMSR 200 (2007), which I covered two months ago. Gartner was, of course, issued prior to McCauley and Savage. The employee was removed for excessive absence for 252 3/4 hours of LWOP and 80 3/4 hours of AWOL for a total of 333 1/2 hours of unscheduled absences over a period of roughly six months.

Back to Employee X

What would you do with Employee X?

Are there enough hours to support an excessive absence charge – 160 hours over 12 months?  I don’t think that one will stand.  Most employees earn 104 of sick leave and between 104 and 208 of annual a year – even using just what is accrued would be more a lot more than 160.  I think one would be hard pressed to succeed there. But I also don’t think it’s needed.

The AWOL charge is strong — 1120 hours in a 12-month period is nearly 10 times the amount of AWOL that McCauley was removed for. With some good documentation about impact of those absences, it should be easy to make a case for removal on just this charge.

What about failure to follow leave procedures? If the AWOL charge is a result of the employee’s failure to follow leave procedures, then it will likely be merged with the AWOL since they are basically the same misconduct. See Westmoreland v. DVA, 83 MSPR 625 (1999).  So, this one should be skipped as well.

That’s my two cents! Haga@FELTG.com

The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems

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By Deborah Hopkins, December 11, 2019

Last month, FELTG published an article about federal employees with hygiene issues, and whether agencies could justify taking disciplinary action against employees who do things like intentionally defecate themselves, urinate in closets, and bring in unwelcome critters on their clothing or hair, thus infesting the office.

As you can imagine, a lot of people clicked on that article. One of the cases cited dealt with a food inspector in a chicken processing plant who intentionally passed gas on and around his coworkers (Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID)). I know a lot of people had a chuckle about that one, probably because it sounds horrid. (And it was horrid, among other things.) We used the case to illustrate the principle that employees can be disciplined for intentionally doing gross things in the workplace.

Some cases can teach us multiple lessons, and thanks to a FELTG reader who urged us to look deeper, I re-read the entire case – something I hadn’t done in a long time. I suggest you do the same and if you do, you will see this is not a case involving an employee playing the class clown, but it’s a case involving something much darker.

Yes, there is a lot about farting in the case – including multiple instances of the appellant passing gas and then asking coworkers and others if they could smell it. But the more serious issues in the case were incidents of unwelcome sexual conduct over an extended time period, against females he worked with and around. Some of the sexual references, suggestions, gestures, and requests are so egregious that I can’t print them here for fear of your agency firewalls blocking this email – not to mention the things he did with the chicken parts in an attempt to make his coworkers uncomfortable. In addition, the unwelcome sexual conduct was also directed at the private employees in the establishment that the appellant was charged with helping regulate, so it went beyond an internal agency issue. Despite multiple requests to stop, the appellant continued to subject his victims to this conduct. In the end, the AJ sustained the appellant’s 30-day suspension. This was 2006, and if you read the facts I think you’d agree that the agency could probably have justified a removal, even in a pre-#MeToo world.

Why do we bother spending so much time discussing an initial decision that doesn’t carry any precedential value? Because the principles are important, and the victims in this case are just as important as the victims in cases that carry precedential value. Our reader put it better than I ever could:

Often people laugh at those who say crude things to strangers on the street – dismissing them as silly because they won’t likely result in romance. I routinely cite this case to explain – saying overtly sexual things to someone is not meant to try and get them on a date. It’s meant to degrade the female with the overall purpose of elevating the male at her expense.

Why fart? Because it’s about POWER. Why would the same person who said explicit sexual things and ask for dates also raise his hip, [fart], ask “Didja smell that?” and laugh? Because he was engaged in multiple forms of bullying behavior. See the ID page 6 in particular…it’s just stunning (a great summation of a horrible thing).

This case is a perfect illustration that sexual harassment cases are not always about sexual desire. There are multiple motivators for unwelcome behavior in the workplace, and your agency should not put up with it. Hopkins@FELTG.com

The Good News: What Says Happy Holidays More than a Column about Due Process Law?

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By Ann Boehm, December 11, 2019

Throughout my career, I’ve often heard people mistakenly say, “That would be a due process violation.”

When this occurs, I feel like I should respond as Inigo Montoya (rousingly played by Mandy Patinkin) does to Vizzini (Wallace Shawn) in the fabulous movie “The Princess Bride.”  It’s the scene where Vizzini keeps saying, “Inconceivable,” and Inigo finally turns to him and says, “You keep using that word. I do not think it means what you think it means.” That’s how I feel about people who wrongly refer to due process. I do not think it means what you think it means.

Due process is a very simple concept. It’s spelled out in a clause of the Fifth Amendment of the Constitution: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Starting in 1881 with the assassination of President James Garfield by Charles Guiteau, a man who failed to get a federal job (a bit extreme, don’t you think?), Congress transformed the Federal hiring process from a spoils system to a merit-based civil service.

By 1912, Congress recognized that the system was still imperfect and enacted the Lloyd-La Follette Act.  A key provision of that Act provided that “no person in the classified civil service …  shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing.”

So since 1912, an employee being removed from Federal employment has received notice of the reasons, in writing, and an opportunity to reply.

Decades later, Congress decided to spell out the due process protections for Federal employees in the Civil Service Reform Act of 1978. Due process rights come into play only if pay is taken away from a Federal employee. (Salary is “property” and that is why you do not have due process rights for a letter of reprimand.)

For suspensions of 14 days or less, the due process rights are spelled out in 5 USC § 7503(b): An employee against whom a suspension for 14 days or less is proposed is entitled to: (1) an advance written notice stating the specific reasons for the proposed action; (2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.

Are you still with me? We’re almost home!

For suspensions of 15 days or more, demotions, and removals, the due process rights are spelled out in 5 USC § 7513(b):  An employee against whom an action is proposed is entitled to: (1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.

This is what due process is, but here is what it is not.

It does not require that you treat all employees the same. I once had an Employee Relations Specialist tell me that, because we granted extensions of time to anyone who requested one, denying anyone would be a due process violation. Um, no, it’s not.

I recently had someone ask if you could settle a case at the proposal stage without violating due process.  Settling at any point is fine – no impact on due process.  Due process is notice, reply, impartial decision.  That’s it.

Folks, don’t complicate things. Due process is simple. Keep it that way!

Federal employees have plenty of rights. Don’t give them more than what Congress intended. And that’s Good News! Boehm@FELTG.com

Deep-fried Cubicle Chicken, Naked Employees and Unwritten Rules

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By Dan Gephart, December 11, 2019

Here at FELTG, we like to make things as easy as possible, especially when it comes to discipline. The slide that introduces the elements of the discipline portion of our flagship supervisory training course, UnCivil Servant: Holding Employees Accountable for Performance and Conduct, includes this aphorism often attributed to Leonardo da Vinci:

“Simplicity is the ultimate sophistication.”

With that in mind, we introduce the first element of discipline: Establish a rule. How do you do that? Well, that rule could be a law, an agency regulation, or a local policy that is already in place. A supervisor could establish her own unique rule, such as forbidding cell phones in meetings. But not all rules have been put to paper. Some rules employees should just know, whether they’re written or not.

The federal workplace is not alone when it comes to unwritten, or “should have known” rules. Baseball is full of them. “Don’t bunt to break up a no-hitter.” “Don’t try to steal a base when you already have a large lead.” And “don’t flip your bat to celebrate a home run.” That last unwritten rule will lead to a beanball being tossed, which is an unwritten rule that breaks a written rule.

Want to have a big muscular bro drop his dead weight, then drop you at the gym? Just get in his way while he’s lifting. When you’re heading up the escalator, stay to the right. Leave the left side open for passers.

Here’s an unwritten rule I wish everyone followed: If you’re getting gas and a hoagie at the Wawa, pull your car away from the pump before you go inside. That spot next to the gas pump is not a parking space.

These rules are basically assumed societal contracts based on common sense and respect for our fellow human beings, whether it’s on the baseball diamond, in the gym, ascending from the Metro, or in the workplace.

Have you ever felt a desire to be elsewhere more than when you catch that initial whiff of something awful from the microwave slowly snaking its way down the hallway to your work station? That’s a big unwritten workplace rule being broken. However, truth be told, a foul-reeking microwave will lead to someone scribbling the rule down on a piece of notepaper and taping it angrily onto the microwave door, thereby taking away its “unwritten” status.

Are you going to discipline someone for cooking yesterday’s fish in the microwave? No. If the culprit fesses up, though, you should have a short talk with him, preferably in an office far from the kitchen. But you should take a less-forgiving approach to an employee who is deep-frying chicken in her cubicle. Microwaved fish is smelly, deep-fried cubicle chicken is a fire hazard.

And, yes, that fire hazard really happened. It’s one of many stories of jaw-dropping unwritten rule-breaking we’ve heard from our customers over the years, which also includes the employee who thought running naked through the hallway was a fine idea since it wasn’t forbidden in the dress policy, and the employee who liked to masturbate in the office supply closet during work hours.

There are numerous tales of employees catching a little snooze at the most inappropriate of times and places. [If you’d like to share your own unwritten rule story, anonymously of course, then email me.]

You have to wonder how many ZZZs it took for the General Services Administration to propose a rule last month to prohibit sleeping in federal buildings. (I admit an editorial conceit here. The GSA rule, as FELTG President Deborah Hopkins explained last month, is meant to address overnight camping. Still, we’ve pored over the text of the proposed rule and we don’t see it.)

There are clearly more should-have-known rules than written ones. The creativity with which some humans find ways to set new low standards of workplace behavior is abundant.

So if you’re faced with disruptive behavior for which there is no current law, policy, regulation, or rule, and you wonder if it falls in the should-have-known category, ask yourself these questions: Is it common sense? Did the employee’s action show a lack of respect for his or her co-workers?

In other words, don’t overthink it. Keep it simple. Gephart@FELTG.com

Equal Pay Act Claims: Yes, They Exist in the Federal Sector

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By Meghan Droste, December 11, 2019

The discussion of pay inequality — the fact that women still earn less than men in the American workplace — generally seems to focus only on the private sector. The news, by the way, is not exactly great right now. Latina Equal Pay Day, the day when Latina pay catches up to what white, non-Hispanic men earned the year before, was just last month (November 20, 2019), 18 days later than it was in 2018. It was also far behind the equal pay days for other women: March 5 for Asian women, April 2 for the average for all women, April 15 for white women, August 22 for black women, and September 23 for Native American women. We clearly have a long way to go in this area.

The conversation is generally about how to improve things in the private sector, possibly because there is no private sector or industry-wide General Schedule for those not lucky enough to work for the federal government. That doesn’t mean that pay inequity doesn’t exist in the federal sector.  The EEOC issued decisions in multiple cases involving Equal Pay Act (EPA) claims this year. It’s important to be aware of them.

One initial note about EPA claims: Be careful when dismissing them for timeliness issues. While the 45-day deadline still applies for federal sector complainants, each violation restarts the clock.  That means that an employee has 45 days from each unequal paycheck to contact an EEO counselor. Be sure to keep this in mind when determining whether or not a complaint is timely.

When looking at the merits of an EPA claim, the Commission first determines whether the complainant can satisfy the elements of a prima facie case — the complainant received less pay than an individual of the opposite sex for equal work. Equal work is work that requires “equal skill, effort, and responsibility, under similar working conditions within the same establishment.”  See Mercedez A. v. USDA, EEOC App. No. 0120170574 (Mar. 7, 2019). You might have noticed one thing that is missing from what the complainant must prove: intent.  EPA claims do not turn on intent like disparate treatment claims under Title VII or other statutes.  See Mercedez A. v. USDA, EEOC Req. No. 2019004025 (Oct. 17, 2019) (“[I]ntent to discriminate is not a necessary element to prove an EPA violation.”).

An agency can avoid liability by showing that the difference in pay is due to: 1) a seniority system; 2) a merit system; 3) a system that determines earnings based on quantity or quality of production; or 4) any factor other than sex. See Mercedez A., EEOC App. No. 0120170574. Essentially, an agency “must establish that a gender-neutral factor, applied consistently, in facts explains the compensation disparity.” See id. To meet this burden, the agency must be able to articulate the actual reason for the disparity, not merely point to speculative reasons.

One last note: An applicant’s prior salary is not enough to justify a difference in pay. As the Commission has recognized, relying only on prior salary (also known as “market value”) can simply perpetuate pay disparities, in direct contradiction of the purpose of the EPA.  See EEOC Compliance Manual, 915.003, § 10-IV(F)(2)(g). When justifying why your agency offered a lower salary to one new employee than to another, make sure you have more you can point to, including factors such as education and years of prior experience. Droste@FELTG.com

Old Man Winter and the Requirement to Telework When it’s a Snow Day

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By Deborah Hopkins, December 11, 2019

‘Tis the season. Yes, the holidays are upon us and there are lights and ornaments and Christmas trees everywhere you look. But it’s also the season of snow, sleet, and ice in many parts of the country. And with that, it’s a good time to review OPM’s newish guidance on weather and safety leave, last updated in its Governmentwide Dismissal and Closure Procedures in November 2018 and based on the Administrative Leave Act of 2016.

FELTG readers understand the federal government’s vital business must continue without compromising the safety of its employees and the general public. And while some agencies can shut down for a day or two with no real harm, other agencies absolutely must stay operational no matter what’s happening outside.

Read the procedures for yourself here, but below are some highlights and reminders:

  • First, make sure you know your agency’s procedures about what is expected of you when operating status announcements are issued. Also, be sure you know where to look for operating status alerts. Is it the OPM website, your agency’s website, your local Federal Executive Board, your email, or somewhere else?
  • It’s also important to understand which flexibilities are available to you during specific agency operating procedures, such as unscheduled telework, unscheduled leave, leave without pay, an alternative day off, etc.
  • An agency may grant paid weather and safety leave when it is determined that employees cannot safely travel to or from, or safely perform work at their normal worksite, a telework site, or another approved location because of severe weather or another emergency situation. The cause could be weather, an earthquake, a terrorist attack, or any other situation that causes a danger to employees. There is no annual limit to paid weather and safety leave – it’s all up to Mother Nature.
  • Employees who are set up to telework are generally excluded from receiving weather and safety leave. Because this leave is explicitly granted when travel is dangerous, and employees who telework do not have to travel, they are expected to work as regularly scheduled. There are exceptions if, in the agency’s judgment, the telework-capable employee could not have reasonably anticipated the severe weather or other emergency condition and, therefore, did not take home needed equipment or work.But in general, telework-eligible employees are expected to anticipate telework days if the forecast makes weather-related leave likely
  • Employees on preapproved leave may not receive weather and safety leave even if their colleagues were granted the leave. That means if you used 40 hours of annual leave to escape the cold and go on a cruise, and that same week there is a snowstorm where you live and work and your colleagues get 16 hours of weather and safety leave because the roads are snowed in, you still have to use all 40 hours of annual leave. If you’re on leave, whether in or out of town, you don’t get the benefit of the snow days.

The new OPM Director also issued a memo with more highlights. Be safe out there! Hopkins@FELTG.com.

EEOC’s Fiscal Year 2019 Agency Financial Report

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By Meghan Droste, December 11, 2019

With the year (and the decade!) rapidly coming to a close, I decided to forgo our usual discussion of tips to avoid trouble with the Commission, and instead review some good news from the EEOC. In its recent Agency Financial Report, the Commission touts multiple improvements in the processing of federal sector complaints in FY19, even while it faced a noticeable increase in both hearing requests and appeals.

As any federal sector practitioner can tell you, part of why the EEO process takes so long is the sheer number of cases pending before the Commission at any time. The Commission has been making a significant effort in recent years to reduce the number of cases pending before both administrative judges and the Office of Federal Operations (OFO). The improvements continued in FY19, although not always outpacing those from FY18.

In FY19, the Commission resolved an impressive 10,608 federal sector hearing requests, up from 8,662 in FY18. These decisions resulted in $87.8 million in relief for complainants, a slight increase from $85 million the prior year. The total inventory of pending cases only decreased by 5 percent, down from a decrease of 8.6 percent in FY18, because the Commission saw an increase in the number of hearing requests complainants filed in FY19. The Commission also received a larger number of appeals in FY19, and issued 4,094 decisions. That is a slight decrease from the 4,320 it issued in FY18.

The decisions resulted in $12.8 million in relief for appellants, down from $13.6 million in FY18. Perhaps most notably, the Commission reduced the number of appeals pending for more than 500 days from 601 in FY18 to just 97 in FY19.

There is obviously still room for improvement. The numbers of pending hearing requests and appeals are still high, and anecdotally, I can share that attorneys representing complainants have noticed that some of the decrease inventory seems to come from judges issuing summary judgment sua sponte before discovery in cases where it may not be appropriate (which will just lead to an increase in the number of appeals). Even with these caveats, I still think it is worth applauding the Commission’s efforts in 2019. Hopefully this time next year they will have even more good news to share!

And with that, dear readers, I wish you a happy and healthy new year!

Droste@FELTG.com