The Good News: It’s Perfectly Legal to Talk to Your Employees — and it Can Net Results!

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By Ann Boehm, July 17, 2019

Our friends at the Merit Systems Protection Board (MSPB) Office of Policy and Evaluation recently released a research brief called Remedying Unacceptable Performance in the Federal Civil Service. It’s nice to know the MSPB is functioning, even without any Board members (yep, we are still waiting on Senate confirmation of the President’s three Board nominees).

The brief’s top recommendation for handling poor performance is to “hire the right people.”  Gee, thanks for that advice. Just in case your crystal ball isn’t always working properly and you aren’t always able to hire the right people, here’s the big takeaway from the rest of the research brief (and based on my own years of experience): Talking to employees works.

In case you feel like you’ve tried everything with problem employees, don’t despair. You’re not alone. Apparently, three fourths of the supervisors surveyed reported taking 10 (!) different approaches to deal with poor-performing employees. “Houston, we have a problem.”  (OK, I know that’s a movie quote and not the historically accurate statement. You get my point.) Supervisors need to figure out a more efficient way to handle poor performers.

The brief states “supervisory support has a relationship to the quality of an employee’s performance, with the most supportive supervisors tending to have the best performers.”  Easy enough.

Here’s what you have to do to be supportive – talk to your employees (are you catching on to my theme?)  And it’s perfectly legal to do so.  Believe it or not, at a training session I recently conducted, supervisors had been instructed by human resources professionals not to talk to their employees about performance. They were told it could lead to litigation. Um, so can getting a scalding cup of coffee at the McDonald’s drive through, potentially. That’s just lame and incorrect advice!

If you aren’t sold yet, read this line from a footnote in the MSPB research brief. “Employees who agreed that they feel comfortable talking to their supervisors about doing the things that matter to them at work and that their supervisor supports their need to balance work and family were more likely than others to report:  (1) engaging in strong performance behaviors; and (2) that their performance had been rated at the highest level in their appraisal system.”

That’s so powerful, you may want to reread it!

Here are some other things that the brief found effective: monitoring the employee’s work by providing feedback and coaching; communicating; providing guidance on expectations; and discussing possible negative consequences. On this last point – discussing possible negative consequences – I can already hear the lawyers advising, “Don’t do that.  They may sue you.”  Oh, please. It’s not illegal to tell an employee he or she has to do the job correctly or he/she could lose it. In fact, you owe it to the employee. According to the folks at the MSPB, it works.

My friends, I know you’re busy people.  I know you don’t get paid extra for being supervisors.  But help yourselves and your organizations. Take the time to talk to your employees – the good ones and, more importantly, the struggling ones. It’s legal. It’s effective.

Let me know if you have any success or new insights. You could end up in The Good News! Boehm@FELTG.com

Performance Standards and Reasonable Accommodation

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By Barbara Haga, July 17, 2019

I do a lot of training with managers on performance management and performance appraisal system requirements. That includes discussions of performance failures and how to hold employees accountable. It seems that many don’t have a good grasp of the difference between a reasonable accommodation and an unreasonable one.  When I talk about lowering performance standards not being a reasonable accommodation, they seem to be surprised by that.

The scary part of this is that based on what I see in classes, managers may be doing this informally in many situations without ever raising a question to the appropriate EEO/HR/Legal staff as to whether it is required. If you sampled performance narratives, I think you will find things such as “For this rating period, the employee was not required to meet the standard of 19 widgets a month, but was required to make 12” or “The employee’s assignments were limited to one portion of the process for this rating period,” or “The employee’s assignments included only XXX types of cases for this rating period.” These are all indications that someone is adjusting requirements for some reason. The next step should be talking with the manager to find out what the reason was – and whether a question regarding reasonable accommodation is part of it.

What needs to happen to make sure managers can distinguish between when they are required to accommodate and when they are not? Education would be the obvious answer.  That could include incorporating this kind of information into performance training, or it could be as simple as a short briefing included as part of a staff meeting for managers.

The EEOC’s guidance on applying performance and conduct standards to employees with disabilities is a helpful place to start. It is entitled The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.  The document includes numerous scenarios regarding when accommodation is required that cover private, state and local government, and Federal employees. Kudos to the EEOC for keeping the document updated and posting the date of the last revision.  (Certainly would be nice if OPM adopted that practice for their fact sheets and other guidance documents they have posted, but I digress).

What important points did the EEOC make?  (Section III.a)

1) An employer should apply the same quantitative and qualitative requirements for performance of essential functions to an employee with a disability that it applies to employees without disabilities.

Lowering production standards or eliminating requirements for essential functions is not required as an accommodation.  The point of accommodation is to remedy the situation so that the disabled employee can perform at the same level as any other employees in the job. Eliminating essential functions, of course is not a reasonable accommodation, but taking out marginal functions is a possible accommodation.

The first example provided in the guidance is that of a Federal employee who cannot meet a performance standard:

Example 1: A federal agency requires all of its investigators to complete 30 investigations per year in addition to other responsibilities. Jody’s disability is worsening, causing her increased difficulty in completing 30 investigations while also conducting training and writing articles for a newsletter. Jody tells her supervisor about her disability and requests that she be allowed to eliminate the marginal functions of her job so that she can focus on performing investigations. After determining that conducting trainings and writing articles are marginal functions for Jody and that no undue hardship exists, the agency reassigns Jody’s marginal functions as a reasonable accommodation.

In this example, the agency was able to accommodate the situation because the essential function could be performed at the required level by allowing use of time that would have been spent on the marginal tasks. However, if there wasn’t significant additional time that could be gleaned from other assignments or Jody was not able to complete the number of investigations required for medical reasons, or if those trainings/articles were deemed essential, she would not have been entitled to this accommodation.

The second example covers additional work requirements beyond what the employee is presently required to do. This scenario involves a private sector employee, but I am sure we have all encountered situations where new requirements were added to positions. (Look at the article I wrote in March on conditions of employment related to a computer specialist who had to meet new certification requirements.)

Example 2: Robert is a sales associate for a pharmaceutical company. His territory covers a 3-state region and he must travel to each state three times a year. Due to staff cutbacks, the company is increasing the number of states for each salesperson from three to five. Robert explains to his manager that due to his disability he cannot handle the extra two states and the increased traveling, and he asks that he be allowed to have responsibility only for his original three states. The company may refuse this request for accommodation because it conflicts with the new production standard. However, the company should explore with Robert whether there is any reasonable accommodation that could enable him to service five states, and if not, whether reassignment is possible.

I think many managers might feel in this situation that it would be a legitimate decision not to require Robert to perform over the same area as other employees because of his disability, when the answer is actually quite different.

The third example involves a computer specialist and a PIP.

Example 3: A computer programmer with a known disability has missed deadlines for projects, necessitating that other employees finish his work. Further, the employee has not kept abreast of changes in the database package, causing him to misinterpret as system problems changes that he should have known about. The employee is placed on a Performance Improvement Plan, but his performance does not improve and he is terminated. At no time does the employee request a reasonable accommodation (i.e., inform the employer that he requires an adjustment or change as a result of a medical condition). The termination is justified as long as the employer holds the employee to the same performance standards as other programmers.

In this example, management took the appropriate step to place the employee in the demonstration period because the work was not being accomplished at the required level, even though they knew the employee had a disability. I believe that there are likely many situations where management would accept the less than acceptable work because they felt they had no alternative but to do so.

The current administration has sent lots of signals about the need for accountability in performance management.  Based on what I have seen, this is an area where managers need some help to ensure that accountability is maintained appropriately. Haga@FELTG.com

‘Summertime, and the livin’ is easy’ – A Brief Reminder on EEO Deadlines

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By Meghan Droste, July 17, 2019

Happy summer dear FELTG readers! By the time you read this, we will be firmly in the middle of July and, if you are in an area like DC, in the midst of plenty of heat and humidity. It’s the perfect time to take it easy, find some shade, and maybe indulge in a frozen treat or two. (I leave it to you to decide what form those treats will take. Personally, I’m sticking with some coffee cookie ice cream).

In the spirit of the lazy days of summer, I’m bringing you a pretty straight forward case that won’t require too much thought to digest. In Leisa C. v. Department of Agriculture, EEOC App. No. 2019001265 (April 3, 2019), the agency issued a Notice of Proposed Removal to the complainant on February 2, 2018.  Four months later, on June 20, 2018, the agency issued a decision on the proposal, removing the complainant effective June 23, 2018. The complainant received the decision letter on June 27, 2018, and she contacted an EEO counselor on July 16, 2018. The agency subsequently dismissed the complaint, finding the complainant contacted a counselor beyond the 45-day deadline.

If you are currently scratching your head, you’re not alone. I was a bit surprised when I read this one too. The complainant contacted a counselor less than a month after she received the decision, and only 23 days after the effective date of the removal. I am terrible at math, but it’s pretty clear even to me that 23 is less than 45, so there is no question that the complainant’s contact was timely. See, I told you this one would be pretty straight forward. No heavy lifting required.

The Commission didn’t offer any detail on the agency’s argument, but my best guess is that it based the deadline on the February 2, 2018 notice proposing the complainant’s removal (164 days before the complainant made EEO contact). If this was the theory of the agency’s case, it unfortunately doesn’t float.  As the Supreme Court has said, “[t]he claim accrues when the employee is fired,” and not a moment before.  See Green v. Brennan, 136 S. Ct. 1769, 1777 (2016).

And with that, I leave you all to find a pool to float in or a hammock to nap in; just be sure to wear lots of sunscreen. Droste@FELTG.com

 

Tips from the Other Side: July 2019

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By Meghan Droste, July 17, 2019

When I’m not litigating my own cases, I spend most of my work-related time out there teaching, bringing you case law and pointers to help in your own practice. Last month, I had the pleasure of being the student instead of the teacher, and I picked up a bunch of new and exciting info at a conference for employment lawyers. One of the panels I attended brought my attention to an EEOC decision from last year, Joseph B. v. Department of Veterans Affairs, EEOC App. No. 0120180746 (August 14, 2018), that is remarkable for the award of several years of front pay. Front pay is unusual and years of front pay is nearly unheard of. But that’s not the only takeaway from this decision, so this month’s tip comes from the procedural issues that led to the case being in front of OFO.

In Joseph B., the complainant filed a motion for summary judgment and the agency stipulated to liability in nearly all areas of the complaint.  After reviewing the pleadings, the administrative judge granted the complainant’s motion and entered summary judgment in his favor.  The administrative judge subsequently conducted a hearing on damages and issued a decision ordering several types of relief. As part of the order, the administrative judge ordered that the complainant “continue to receive full benefits in front pay status, including health insurance.” The agency fully implemented the administrative judge’s decision with some modifications to the language. It included in the final order a direction that, to receive the front pay, the complainant had to resign from his position. The agency did not file an appeal of the administrative judge’s decision.

The agency paid the complainant his salary and related benefits for more than a year after the final order, although the complainant did not resign. Fifteen months after the order, the agency separated the complainant from federal service and stopped paying the ordered relief.  Instead, the agency asserted that it would pay the complainant a lump sum of the front pay owed, with an offset for the salary he was earning from his part-time employment (which the complainant had engaged in while working for the agency with the agency’s knowledge and approval). The complainant filed a petition for enforcement with the Commission.

All of this brings us to the tip for this month: If an agency is going to take issue with an administrative judge’s award, it must file an appeal.  The agency did not do so, and instead issued a final order stating that it would fully implement the administrative judge’s decision. As a result, the Commission found that it could not modify the order and pay the complainant a lump sum — which would not allow the complainant to continue to receive the “full benefits,” including health insurance, provided for in the order — rather than keep him on the rolls in a non-duty status. The Commission also rejected the agency’s arguments regarding the complainant’s other income, and held that front pay is not subject to mitigation.

I recommend thinking of these final orders like a settlement agreement. While you might come to regret it later, once you agree to it (or fully implement it without appealing), you’re stuck with it. Droste@FELTG.com

More Questions about Federal Employees Who Use Marijuana

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By Deborah Hopkins, July 17, 2019

As marijuana is legalized in more states around the U.S., the questions FELTG receives regarding marijuana use by federal employees continue to come in. (If you haven’t already, check out my first article on the topic, Can Federal Employees Smoke Pot?) Below are some recent questions sent to the FELTG question desk, and along with each answer comes the disclaimer that this article is not intended to provide legal advice, is for training purposes only, and does not create an attorney-client relationship with any of the questioners.

Question 1:

Hello and good afternoon,

I have a question about the use of marijuana by federal employees. Since its use has been cleared in Canada for all who are 18 and over, can a federal employee with the U.S. be charged for just using it there? Upon returning to work, even days after using, he/she may not pass a drug test. Technically, a federal employee in Canada is subject to Canada laws and not those of the United States, correct?

Thanks and look forward to your response,

[Name Redacted]

And our FELTG-response:

Well, that’s a creative way to look at things, but you won’t like my answer. Don’t make the mistake of thinking that because an activity is legal in a certain jurisdiction, that activity can’t be considered misconduct for the purposes of federal employee discipline. For example, in over 40 countries around the world domestic violence is legal. But if a federal employee happens to work for the State Department in Armenia, which is one of the countries that does not see domestic violence as a crime or civil infraction, that employee can still be disciplined for physically assaulting her spouse, if the agency can find a nexus between the conduct and the federal job.

Of course, we don’t even need to look at such an extreme example. Take a read of what then-OPM Director Archuleta put in a 2015 memo to agency heads, which is still true today:

Marijuana is categorized as a controlled substance under Schedule I of the Controlled Substance Act.  Thus knowing or intentional marijuana possession is illegal, even if an individual has no intent to manufacture, distribute, or dispense marijuana. In addition, Executive Order 12564, Drug-Free Federal Workplace, mandates that (a) Federal employees are required to refrain from the use of illegal drugs; (b) the use of illegal drugs by Federal employees, whether on or off duty, is contrary to the efficiency of the service; and (c) persons who use illegal drugs are not suitable for Federal employment. The Executive Order emphasizes, however, that discipline is not required for employees who voluntarily seek counseling or rehabilitation and thereafter refrain from using illegal drugs … Drug involvement can raise questions about an individual’s reliability, judgment, and trustworthiness or ability or willingness to comply with laws, rules, and regulations, thus indicating his or her employment might not promote the efficiency or protect the integrity of the service.

So even if marijuana is legal in a jurisdiction (Canada, or elsewhere), it is illegal for a federal employee to use marijuana in any form – smoke, edibles, tinctures, pens, etc. – at any time, if they are employed by a federal agency. If you fail a drug test, you can probably kiss your job goodbye, even if the drug was legal where you used it. In fact, in one of the last MSPB decisions we ever got, all the way back in December 2016, the MSPB affirmed an indefinite suspension for an employee who used marijuana and whose security clearance was under review. Palafox v. Navy, 2016 MSPB 43 (December 20, 2016).

Bottom line: The federal government takes marijuana use seriously. If you want to keep your job, don’t use it anywhere, anyhow.

Question 2:

Hello, I am starting a position with the [agency redacted] soon as a [job title redacted]. I’ve used marijuana prior to this position and am thinking of continuing to do so while there. What should I take into consideration while making this decision, and what consequences can I face if I fail a drug test? The position is very low level, barely a step above intern, for context.

Thanks for the hypothetical question. Federal employees may not legally use marijuana in any form, whether recreational or medicinal. If they do, they can be removed, either for misconduct or for suitability reasons. And if you’re a probationer, you won’t even get to the conduct or suitability question – you’ll just be out. You need to realize the risk you are taking if you choose to violate this federal statute.

While job level and type is a Douglas factor, when the misconduct violates a federal statute, the weight of the offense carries far more significance than the level of job you hold. (By the way, probationers don’t even get the benefit of a Douglas-justification in removals for marijuana use.)

Question 3:

Can you work for the federal government and still use medical marijuana?

Sure you can. Until you get caught, that is, and then you can be removed because it is illegal to use marijuana while you are a federal employee.

No matter how many different ways you ask the question, my answer is going to be the same. Unless and until Congress passes a law that says marijuana is not illegal, federal employees should just say no. Hopkins@FELTG.com

Are They Going to Regret Leaving?

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By Dan Gephart, July 17, 2019

It was 24 years ago this month, and I vividly remember that heart-pounding march from the desk I shared with a fellow reporter to the Editor’s office. The newsroom boss — we’ll call him X – was very talented. He was even more intimidating. And I was about to, for the first time in my professional career, tell my boss I was resigning.

At first, X offered the usual — a slight raise and a few minor perks. I felt flattered and appreciated. Once I made it clear that my decision was final, however, the mood abruptly turned sour. X looked me directly in the eye and ominously said: “You’re going to regret leaving the newspaper business.”

X scared the heck out of me.

In hindsight, though, X’s threat was pretty ridiculous. That small suburban newsroom never had as many employees as it did on the day I resigned. It now has fewer than half. In the mid-90s, the newspaper business began a slow steady decline that has accelerated in the last few years. About 3,000 newspaper employees have been laid off or offered buyouts within the first five months of this year, according to Bloomberg.

I share this experience so that I can ask you this question: If a highly productive young employee came into your office to give her two weeks’ notice, would you feel confident enough to reply: “You’re going to regret leaving the federal government”?

We’re in trouble, folks. There are more than twice as many federal employees 60 years and older than there are federal employees under 30 years old, according to FedScope data. That retirement tsunami never really hit, but darn if those big waves don’t keep lapping up on our shore. We need to bring in young talent to continue our agencies’ very important missions, many of which are at critical junctures. Yet, those agencies still haven’t figured out how to consistently hire young federal employees. There is also good reason to believe that they’re losing the ones they were able to hire.

The FedScope data is based on information as of September of 2018. It’s reasonable to think those figures will continue to get worse. Just look at what has happened since last September:

  • A highly politicized and soul-crushing 35-day shutdown that fell over the end-of-year holidays.
  • Multiple announcements from agencies planning to scale back their telework programs.
  • A member-less Merit Systems Protection Board. (And remember: The Board has lacked the quorum necessary to make decisions on cases for more than two years, leaving thousands of employees and their agencies in employment limbo.)
  • A proposal to dismantle the Office of Personnel Management, the agency responsible for federal workplace policy. (If you’d like a more positive take on OPM’s potential demise, my colleague Ann Boehm found a silver lining.)
  • Bills to extend probationary periods.
  • Proposed legislation that would basically make federal employees at-will, returning civil service to the spoils system.

The federal government is not looking like an ideal place to work.

What does this have to do with you, FELTG reader? A lot. As federal leaders, supervisors, HR professionals, and EEO specialists, you either manage people yourself or advise those who do.

Look at any survey of why people leave jobs and you’ll see poor performance management at the core. They may say “bad manager,” but it’s the same thing. Nothing drives a good performer to frustration more quickly than seeing a poor performer skating by. I know. I’ve watched it happen quite often in previous jobs. But don’t trust me. Just read any Federal Employee Viewpoint Survey over the last several years. There are way too many federal employees who think their managers are not holding bad employees accountable.

Behind those draconian bills in Congress and the wariness of young, talented job-seekers is the biggest and most damaging myth about federal employees: They can’t be fired. And there isn’t one iota of truth to that.

Are you one of those managers who cowers at the thought of accountability? Do you advise one of those managers? Well, you better learn how to hold employees accountable or get out of the way.

Anyone who has attended FELTG’s signature program UnCivil Servant: Holding Employees Accountable for Performance and Conduct or read the book (now in its 5th edition) can tell you how to remove an employee for unacceptable performance in 31 days. If you haven’t attended the training, scroll back and re-read the article by FELTG President Deborah Hopkins that leads off this month’s newsletter — We Don’t Need Civil Service Reform. Deb gives you the simple steps to address poor performance and misconduct. It doesn’t get any easier. Print the article, and be on the lookout this summer for the next two installments in Deb’s series. If you still need inspiration, then scroll back to the article – Ann Boehm’s Good News feature It’s Perfectly Legal to Talk to Your Employees — and it Can Net Results! There is a lot of wisdom in those two articles.

You should also find a way to get to our Managing Federal Employee Accountability next week in Portland, Ore., Barbara Haga’s Advanced Employee Relations class in Norfolk, Va., from September 10-12, or the three-day Developing and Defending Discipline: Holding Federal Employees Accountable, starting September 17 in Atlanta. You’ll leave each class with a lot of specific guidance on how to handle the accountability challenge.

Look, it can be done. Wouldn’t it be nice to hire and keep good talent? While we never want our talented employees to leave, wouldn’t it be great to be able to say to the departing worker, with a straight face: “You’re going to regret leaving the federal government.” Gephart@FELTG.com

Where Does It Say I Can Reprimand?

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By William Wiley, originally published November 14, 2015; posted July 10, 2015

Questions, we get questions. And here’s one that goes to the fundamental nature of an agency’s authority to do anything:

Dear Genius-Level Brains at FELTG-

What is the Statutory or CFR basis that gives Management the authority to issue written reprimands? I’ve reviewed USC Chapter 5 and 5 CFR 752 as well as more OPM webpages than I thought could exist. I see lots on suspensions (<14 days and >14 days) but nothing that seems to give Agency Management the right or authority to issue written reprimands. Do you know of any CFR reg that addresses an Agency Head’s authority to issue written reprimands for the efficiency of the service?

And our sparkly little FELTG answer:

There’s no specific statutory or regulatory authority to issue reprimands. Rather, the authority comes from the statutory delegation of the authority for the general administration of personnel within an agency to the head of the agency, 5 USC 302(b). Issuing a reprimand is part of the “general administration of personnel.” Therefore, it is delegated to the head of your agency.

It is a common misunderstanding to look for the authority to do something specific in government. Rather, this broad delegation of general administration authority effectively allows you to do anything related to personnel administration that you deem necessary, unless there is a prohibition against it. The better way to approach the issue is to ask, “Where does it say I cannot issue a reprimand?” As it does not say that anywhere, then you can.

An analogy would be, “Where does it say in law or regulation you have the right to breathe?” It does not. That right is embedded in the right to “the pursuit of happiness” that is found in our Constitution.

As for the content of a reprimand, generally the belief is that a reprimand was first defined for the practical purposes of progressive discipline in Bolling v. Air Force, 9 MSPR 335 (1981). Subsequently, buckets of Board decisions have relied on the fact of a reprimand being in the record to support progressive discipline. Black’s Law Dictionary defines a reprimand as “to censure formally, especially with authority.” The head of your agency has the authority to administer personnel. Therefore, you can reprimand.

By the way, nothing requires that a reprimand be for “the efficiency of the service.” That is a requirement set forth in statute only for 5 USC 7513(a) actions: suspensions, demotions, and removals. Rather, we are bound to take a personnel action (e.g. reprimand) only on the basis of conduct that adversely affects the performance of the employee or others, 5 USC 2302(b)(1). A reprimand is based on misconduct. Therefore, this standard is satisfied.

Hope this helps. Best of luck-

Bill

 

Wiley@FELTG.com

And Now a Word With … Steve Shih

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Portrait of Steve Shih on Wednesday, Dec. 6, 2017 at NASA Headquarters in Washington, DC. Photo Credit: (NASA/Joel Kowsky)

By Dan Gephart, July 2, 2019

On Feb. 1, 2018, the National Aeronautics and Space Administration launched a workplace anti-harassment campaign. The campaign was based on the applicable federal laws, EEO guidance on anti-harassment, and the expertise of its creator – Steve Shih.

Shih is that rare person who can explain the fundamental principles and concepts of subjects like employment law and leadership, but is also creative enough to develop outside-the-box solutions. He has held critical roles over the past 25 years with the Equal Employment Opportunity Commission, the Office of Personnel Management, and the Department of Homeland Security. Shih has created agency- and government-wide policy and guidance for EEO, leadership, diversity and inclusion, training and development, employee engagement, and agency operations. He is currently Associate Administrator of Diversity and Equal Opportunity at NASA.

When Steve Shih talks, you listen. And we were listening when he discussed the agency’s anti-harassment campaign as being about “safety and effectiveness” of the workforce and the NASA mission. “We know if we take care of the workforce, they will take care of our mission,” Shih said.The campaign focuses on proactive prevention of harassment, and the prompt correction of harassment when it occurs. For prevention, the agency has gone to great lengths to get the message across – everything from meetings with agency leaders to 3-D simulations and gamification.

DG: What specific steps has NASA done to proactively prevent harassment?

SS: First, the NASA Administrator sent a video message and a written memorandum to every NASA employee, communicating:

  • Expectations for the appropriate culture and values in the NASA workplace.
  • Emphasis on accountability.
  • Reinforcement of the agency’s anti-harassment policy and requirements for all NASA personnel to exercise reasonable care to prevent and enable the prompt correction of workplace harassment.
  • Expectations for all personnel to support NASA’s Anti-Harassment Campaign.

I personally conducted briefings for all NASA senior leaders, including at the Administrator’s Senior Staff Meeting in February as well as briefings and trainings at NASA Headquarters and Field Centers across the country.

NASA has just developed and launched an innovative online training involving 3-D simulations, avatars, and gamification, focusing on harassment prevention and bystander intervention. The training is available to the entire NASA workforce, and is aligned specifically to NASA mission and to providing a value to NASA organizations and individuals on mission accomplishment.

NASA field centers and other organizations are also continuing additional efforts to proactively prevent harassment, including town halls, diversity and EEO programs, and partnerships with employee resources groups.

DG: We talked a lot about prevention, but can you briefly tell our readers how NASA effectively handles correction?

SS: NASA’s anti-harassment program is operated through a partnership of relevant NASA organizations and officials (including the agency’s Anti-Harassment Coordinators, the Office of Diversity and Equal Opportunity, the Office of the Chief Human Capital Officer, the Office of General Counsel, and senior management officials) who work together to review the fact-finding results of harassment matters and determine appropriate action.

These organizations and officials have both the leadership and program responsibilities and authorities to coordinate appropriate corrective measures when harassment occurs, including deciding and implementing discipline for employee misconduct, and driving organizational improvements (e.g., through training and improved operational policies and procedures).

This approach has enabled NASA to prioritize correction and continual prevention of harassment in a consistent, coordinated, and effective way across the entire agency.

DG: How do you measure the success of the anti-harassment program?

SS: NASA’s recent annual processing times for reports of harassment has averaged only 51 days from receipt to fact-finding to full resolution of reports of harassment, compared to the formal EEO process, which on average easily takes more than two years to fully complete.

We have data demonstrating employees’ increased capability to report harassment through any of multiple avenues and to multiple individuals who can arrange for assistance, including through our Anti-Harassment Program. Our data also indicate employees have experienced increased psychological safety and assurance of protection from retaliation, and these conditions have improved the confidence of employees to report and seek assistance for harassment.

I’m pleased to say NASA has maintained a very low volume of EEO complaints raising claims of harassment. Our data shows NASA’s Anti-Harassment Program has been extremely effective for early resolution of harassment matters so they don’t later become EEO complaints. In fact, during FY 2018, NASA received only 30 EEO complaints of harassment – this is a tremendously small number for an agency with about 17,500 civil servants and additional contract employees – and of these 30 EEO complaints, not a single one them raised a claim of sexual harassment.

Security Clearances as Conditions of Employment

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By Barbara Haga, June 17, 2019

This month we are looking at what I would describe as the “King of Condition of Employment Cases.” In Egan v. Navy, 484 U.S. 518 (1998), the Supreme Court answered the question of what type of review would apply when the condition of employment involved a security clearance. Anyone who deals with security clearance issues should read this foundational case, if they haven’t yet.

Egan was hired in 1981 as a Laborer at the Trident Refit Facility in Bremerton, Wash., where all positions were deemed sensitive. His appointment was documented as subject to satisfactory completion of security and medical reports. During the interim between his date of hire and the date of the decision on his security clearance, Egan performed limited duty and was not allowed on board any submarines. Upon completion of the requisite inquiry into his background, the Navy proposed his removal based on several factors. First, it was noted that criminal records from California and Washington state reflected that he had been convicted for assault and for being a felon in possession of a firearm. It was also shown that he had failed to disclose on his employment application that he had two earlier convictions for carrying a loaded firearm.  Finally, he had admitted that he had had prior drinking problems and at one point had completed the final 28 days of one of his sentences in an alcohol rehab program.

The Navy completed the next required step in the clearance denial process and provided him an intent to revoke notice. Egan replied that his debt to society for his past convictions had been paid. He also stated that he had not listed convictions older than seven years because he did not interpret the employment form as requiring that information, and that he had not had an alcohol problem for the three years preceding the clearance determination. He also provided favorable references from his supervisors regarding his background and character.

Despite the rebuttal information Egan submitted, the Navy denied his clearance. He exercised his clearance appeal within the Navy. The answer regarding the clearance was not modified. In 1983, the Navy removed Egan since he was not eligible for the job for which he had been hired.

In the initial decision, the AJ reversed the removal ruling that the Board had the authority to review the merits of an agency’s security clearance decision, including that the “… agency must specify the precise criteria used in its security-clearance decision and must show that those criteria are rationally related to national security.”  The AJ held that “… the ultimate burden was upon the agency to persuade the Board of the appropriateness of its decision to deny clearance.”    

The agency petitioned for review and the Board overturned the AJ’s decision. Egan then took the matter to the Federal Circuit where in a divided vote, that court reversed the Board’s decision. In the Federal Circuit decision, the Court explained that because the removal was taken under 5 USC 7512 rather than 5 USC 7532, the Board’s role of deciding the merits of the removal were not limited.  The government took the case to the Supreme Court.  The case was decided as summarized here:

The Majority of the Supreme Court, in a 5 to 3 decision, decided that a denial of a security clearance is not an adverse action and therefore not subject to Board review under 5 USC 7512 and 7513. The Board may only decide whether cause for denial existed, whether the security clearance was denied, and whether transfer to a nonsensitive position was feasible. It may not review the agency’s decision to deny a clearance on the merits. The Executive Branch is by law authorized to make judgments with regard to national security matters. This authority has been delegated to heads of agencies. “Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction [with regard to an individual’s possible future behavior] with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.” The agency head is to have the final say as to whether an individual will be given access to classified information.

Thus, for security clearance denials and revocations, the required proof is that the agency observed the necessary due process in handling of the clearance and in carrying out any subsequent adverse action. Given that, one would think that these were not complex cases and almost impossible to mess up. However, as you’ll see, it is possible to lose one.

Everything that Could Go Wrong

Gamboa v. Air Force, 2014 MSPB 13, provides a checklist of what not to do. Gamboa was moved from the position of Electronics Technician to the position of GS-6, Supply Technician in 2005. It is an unusual change in positions, since one would expect that the Engineering Technician would have higher grade potential that the Supply Clerk, but nothing is provided in the decision to explain the move. The personnel action did not indicate that the new position required a clearance, although it was designated as non-critical sensitive. Unfortunately, neither the position description nor the vacancy announcement included than the position required access to classified information. The decision reflects that there was no affidavit from an agency official or a policy that established that the job required a clearance.

More troubling was the fact that Gamboa’s access to classified material was suspended in early 2007 yet the removal was not effected until December 2010.  The agency claimed that the duties requiring any handling of classified material were given to other employees who had clearance, but the Board was not convinced, writing , “… it is unclear how or why the agency maintained this alleged arrangement for nearly 4 years if eligibility for access and/or actual access to classified information was a requirement of the appellant’s position.”  The Board overturned the removal, holding that the Air Force had not established that there was a condition of employment which Gamboa failed to meet. In other words, the agency’s actions undermined the argument that a security clearance was required, and Gamboa came back to work. Haga@FELTG.com

Barr and Mueller Should Come to FELTG Training

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By William Wiley, June 12, 2019

Yeah, they each messed up. And if they had participated in the FELTG Conducting Workplace Investigations program (next offered August 5-9 in Denver), they would have not. In case you’ve been adrift at sea without social contact for the past several weeks, here’s what happened.

As provided for in both law and regulation, Robert Mueller was appointed by the Attorney General (AG) of the United States as the Special Counsel (SC) assigned to conduct an investigation into questionable dealings between members of President Trump’s campaign team and representatives of the Russian government. After two years of investigation, Mueller issued a 448-page report containing a bunch of fascinating facts, but no legal conclusion as to whether those facts amounted to criminal activity on the part of the President. When asked why he did not draw a legal conclusion relative to criminal activity, Mueller noted a Department of Justice policy that stated that a sitting President cannot be criminally indicted for federal crimes prevented him from doing so.

Subsequently, when Attorney General William Barr was asked whether Mueller should have drawn a legal conclusion, the AG offered that he should have. Barr said that even though there is a DoJ policy that a President cannot be indicted, the policy did not prevent the SC from drawing a legal conclusion as to Presidential criminality without issuing an indictment.

Each of these honorable gentlemen made a mistake, mistakes that are not made by participants in FELTG investigations courses. As we have taught for nearly 20 years, an investigation begins with a “customer,” someone who needs the benefit of an investigation. That customer appoints another individual to be the investigator, with certain powers, objectives, and limitations; i.e., defines the scope of the investigation. The goal of an investigation is for the investigator to provide the information needed by the customer to do whatever it is the customer wants done. In a workplace investigations situation, that’s usually whether some poor federal employee should be fired. In the AG/SC situation just described, it’s whether the President of the United States should be impeached, thrown in jail, or at a minimum, should be re-elected.

The law that governed the appointment of Mueller states specifically that the report of the investigation is to be provided to the AG. It could have said that the report was to go to Congress, or to the public. But it did not. The law made the “customer” of the report the Attorney General of the United States. Therefore, according to basic constructs of investigation, it is up to the AG to define the scope of the investigation, so that the SC investigator knows what to look for and what to produce as an outcome.

In our FELTG classes, we recommend that this critical scope definition be memorialized in an “appointment” memo. Preferably, that memo is provided by the customer to the investigator and lays out the expectations the customer has. For example, part of the appointment memo might say something like, “I am appointing you to investigate the theft of laptop numbered 123 from the director’s office that occurred around June 3, 2019. Based on the information you collect, I will make a determination as to who most likely took the laptop and whether discipline is warranted.” Sometimes a different result might be desired by the customer. If so, it should be stated clearly in the appointment memo: “If possible, you are to identify who you believe took the laptop without authorization, and the degree of proof you believe that you have regarding that determination.” Perhaps the customer wants the investigator to go even further: “In addition to identifying the probable perpetrator, you are to consider the facts that contribute to the relevant Douglas Factors and suggest a range of penalty.”

There’s no right or wrong when it comes to the scope of an investigation. It’s up to the customer to decide what the expectations are to be, to define the scope, and then to empower the investigator to collect all the evidence that’s required. In our investigations classes, we’ve found that some agency customers just want the investigator to collect facts without any consideration of the penalty factors, and other agency customers want the whole enchilada: facts, perpetrator, and penalty. That’s why it’s so critical that the scope be understood mutually from the very beginning. Otherwise, the investigator may not be satisfying the needs and expectations of the customer.

We teach the potential investigators who participate in our classes that they should protect themselves by clarifying the scope of the work with the customer. If the customer does not draft an appointment memo, we suggest that the investigator draft a memo to the customer before the investigation is initiated that describes what the investigator believes his responsibilities; e.g., “It is my understanding that I am to collect facts surrounding the disappearance of the laptop from the director’s office, but not recommend a penalty nor identify specifically who I would conclude took the property.” That allows the customer to clarify any misunderstandings from the beginning, in case the investigator misunderstands his role.

This simple, basic step would have saved both Barr and Mueller a lot of confusion. When the SC decided early on that DoJ policy prevented him from reaching a legal conclusion as to Presidential criminality, he should have notified his customer (the AG) of this limitation early on in the investigation. Since the DoJ policy is open to interpretation (as evidenced by two really smart people disagreeing as to its meaning), and since there is no automatic right or wrong, a question presented by the SC to the AG for clarification two years ago when the investigation began would have saved a lot of disagreement and confusion at this stage now that the SC office has been dissolved. On the other hand, there’s not necessarily any fault to be assigned when it comes to being confused. When you order your eggs over easy for breakfast, and the waiter brings you (the customer) eggs that are scrambled, you simply say, “Excuse me, but I ordered eggs over easy.” It doesn’t matter if you misspoke or the waiter misheard. Your eggs were not served the way you want them, and any waiter interested in a tip will remedy the situation without hesitation. That’s how life works. There are no bonus points for assigning blame.

And that was the AG’s mistake. When Mueller submitted his report, and it was clear that he did not reach the legal conclusion that Barr expected, the AG simply should have returned the report to the SC and clarified the expectation. No harm, no foul. When you get scrambled eggs instead of over easy, you don’t jump up, run to the kitchen, and start frying eggs. You just ask them to do it over. That’s what Barr should have said to Mueller, and would have if he had attended the FELTG investigations seminar. The goal is to get an acceptable report (or an acceptable breakfast) in spite of any confusion as to expectations.

Here at FELTG, we exist to help you ladies and gentlemen do a better job of running the government. We do that by offering seminars and consulting services at a reasonable fee. Operators are standing by. Discounts offered for political appointees nominated by the President and confirmed by the Senate. We may be just a small  training group, but apparently we know more about federal investigations than do some very important people. Wiley@FELTG.com