Michael Keaton, Burt Reynolds, and the FMLA

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By Dan Gephart, September 19, 2018

Thanks to Facebook, I’m reminded of the birthday of that odd kid from sixth grade who had the massive nosebleed problems and carried a Land of the Lost lunchbox. However, Mark Zuckerberg’s programmers failed to remind me of a more important birthday last month — the FMLA’s 25th. That’s right, the Family and Medical Leave Act has been around for a quarter-century. President Clinton signed the bill into law in early 1993. Six months later – August 5, 1993 to be exact – the law went into effect.

The birthday snub aside, I have a lot of affection for the FMLA. Twenty-four years ago, I took advantage of the then-new law. It was three months after my second son was born, and my wife’s maternity leave was ending. She needed to get back to work. We couldn’t afford for either of us to lose our job. Unfortunately, our initial child-care plans fell through. Then our back-up plans fell through. And our back-up to the back-up plans.

After much deliberation, we decided I’d stay home for the next three months with our two sons – the oldest of whom had yet to reach age two. This could help buy time as we figured out another child care option with which we were comfortable. We’d be living on one salary, but only for a short time.

What a time it was! Those three months at home with our young sons are among the happiest of my life. I can’t begin to describe the immense joy I feel when I think about those days.

Still, I missed work and was happy to go back three months later. What didn’t bring me joy was some of my coworkers’ reactions upon my return. While Michael Keaton is awesome, the Mr. Mom jokes … not so much. I also didn’t appreciate the comments referring to my three months as a vacation. And if you really wanted to get on my bad side, all you had to do was ask what it was like “baby-sitting” for three months. People, it’s not baby-sitting if they are your own kids! Also, spending time with your kids or taking them out in public without your wife doesn’t necessarily make you a great dad. It makes you a dad.

[Stage direction: Dan steps off his soapbox.]

The FMLA has made a difference in people’s lives, whether it’s meant being able to spend time with critically ill parents, bond with newly born or adopted children, recover from a serious health condition, or care for a spouse injured during military service.

Of course, there are people who try to take advantage of the law. I asked my FELTG colleague Barbara Haga – the FMLA expert – for her favorite stories of FMLA misuse. She reminded me about the letter carrier who invoked FMLA because of a back problem that caused numbness in his left arm and left leg. During his FMLA time off, he played eight games in an out-of-state national softball tournament. When confronted about how he could play softball but not deliver mail, he testified that softball wasn’t really a physical sport. Oh, and he also used the time to travel to Alaska.

Barbara has a new FMLA case that she’s discussing in her classes: “A GS-9 medical technologist with the VA took FMLA to bond with his infant child but was found to have been working at a private clinic for some of that time. Needless to say, he was removed, and the removal was affirmed by the AJ.”

My personal favorite story of FMLA abuse involves the federal employee who took FMLA only to be discovered using his job-protected time off to act in a movie featuring the recently departed Bandit himself — Burt Reynolds.

It’s not just federal employees. The private sector stories are even more ludicrous. Employees have used FMLA to put on a new roof, do jail time, and finish Christmas shopping. In that last case, the employee’s doctor cited the employee’s need for “retail therapy.”

The overall benefits of FMLA outweigh the challenges. But man, there are some serious challenges. Employees misuse FMLA in the most creative ways possible. You are the gatekeeper, and it’s not an easy task.

As always, FELTG is here to help. Join us in early 2019 for the webinar series Too Sick to Work: Absence Due to Illness. Also, you can register early for Absence, Leave Abuse & Medical Issues Week, which takes place on March 25-29, 2019 in Washington, DC.  We have a  star-studded cast of leave experts — Deborah Hopkins, Katherine Atkinson, Meghan Droste, and the aforementioned Barbara Haga. Gephart@FELTG.com

Gender Disparities in Federal Sector Public Safety Occupations

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By Meghan Droste, September 19, 2018

Summer is a slow time. I generally find that my office phone rings far less often during the summer and the pace of work is just a little different.  It appears that the same may hold true for EEOC decisions. Checking for recent decisions to write this article, I found that either the EEOC did not issue any last month, or the folks at Lexis are a bit behind in posting them. Either way, my search for an update for you all led me away from OFO decisions and instead to the EEOC’s June 2018 report Recruitment & Hiring Gender Disparities in Public Safety Occupations.  While it might not seem like a page turner from the title (which, I would also add, should refer to sex rather than gender) the report genuinely is interesting.

The EEOC examined employment data for 10 public safety position categories at 14 agencies. The positions included correctional officers, park rangers, fire protection and prevention, and border patrol agents. The agencies included the Department of Agriculture, the Department of the Interior, the Department of Homeland Security, and the Environmental Protection Agency. The report examines both recent and historical hiring data for these positions at these agencies. The EEOC also conducted focus groups of representative female employees and individuals in the position to impact recruitment.

The Commission found a 1% decrease in the percentage of public safety positions held by women from 2012 to 2016, going from 14% to 13% across the relevant agencies.  Customs and Border Patrol had the lowest number of female employees in the examined positions, with women comprising only 5% of border patrol agents, and no women serving in border protection interdiction positions.  The Fish and Wildlife Service in contrast, received high praise from the EEOC. This agency, which I had the privilege of visiting last week, has implemented several outreach initiatives to recruit women.  Sixty-six percent of their park rangers are women, a number that exceeds those for other agencies and the overall numbers in similar non-federal positions.

After reviewing the data, the EEOC presented several recommendations for improving recruitment of women for public safety positions.  The suggested initiatives include expanding recruitment efforts to all-female colleges and universities, as well as increasing the visibility of female recruiters.  The Commission also suggested developing outreach programs for elementary, middle and high school students to encourage a wide range of children to consider careers in public safety.

The summer sadly is over and the pace of work is starting to pick up in my office in a noticeable way.  Even if you find yourself in the same position, I encourage you to take a few minutes to read the Commission’s report. Droste@FELTG.com

Tips From the Other Side, Part 9

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By Meghan Droste September 19, 2018

No one — at least no one I know — likes to get in trouble. It’s never fun to be caught in the act or to be called out for failing to meet expectations. When it looks like we have been caught, we tend to deflect: I didn’t do it; and if I did, it wasn’t really that bad; and no matter how bad it was, you can’t punish me for it.

From what I remember, this rarely worked when I was a child, and it certainly does not work when arguing a case. Unfortunately, it seems that several agencies missed this memo when it comes to arguing that the EEOC does not have the authority to issue monetary sanctions.

In case after case, the Commission has shot down variations of the same argument when it comes to monetary sanctions. Several agencies have argued that the EEOC does not have the authority to order a federal agency to pay money to a complainant as a form of sanction in the administrative process.

These arguments generally center on the idea of sovereign immunity — the principle that a party may not sue the government without its consent. Agencies assert that the federal government has not waived sovereign immunity in a way that would permit it to use public money to pay a sanction in connection with an order from the EEOC.

The argument that sovereign immunity prevents the Commission — both administrative judges and the Office of Federal Operations — from ordering an agency to pay monetary sanctions goes back to at least 2005 with the case of Matheny v. Department of Justice, EEOC Req. No. 05A30373 (Apr. 21, 2005). In at least 11 other cases, agencies have asserted the same argument, including as recently as in the Taylor Z. v. Department of the Army decision from July EEOC Pet. No. 0420160037 (July 26, 2018). In every case, the Commission has rejected this argument outright and concluded that it has the authority to issue these sanctions.

This is a losing argument. Trust me. I cannot envision any circumstance in which the Commission is going to suddenly reverse its position on this issue.  Please save yourself, and everyone else, the trouble and do not try this argument.  You’re not going to win and you will only succeed in wasting the time and resources of your agency, the complainant and the Commission.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to Droste@FELTG.com.

Another Case Involving the Role of Agency Defense Counsel During the EEO Investigation

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By Deborah Hopkins, September 19, 2018

For eons (OK, maybe not eons but it sure feels like it), the EEOC has issued decisions that discuss the importance of conducting impartial investigations. In these decisions, the Commission also shares its view of the role of agency defense counsel during EEO pre-complaint and investigation stages. The Commission has repeatedly held that agency defense counsel should not be involved in assisting supervisors during the pendency of these processes. Yet, the sanctions EEOC issues when agency OGC offices do become involved are so weak that, as Ernie Hadley wrote in this newsletter back in 2014, “it should give pause as to how serious the Commission really is about the issue.”

Just a few weeks ago, the Commission tackled the topic yet again in Josefina L. v. SSA, EEOC Appeal No. 0120161760 (July 10, 2018). In this case, the complainant filed a complaint against her supervisor for harassment and discrimination based on sex and disability, alleging a number of discriminatory events that occurred over a 13-month period. You can read the case yourself if you want to get an idea of her claims, but I’ll give you the punchline: Josefina didn’t like it when her supervisor told her what to do, and she let him know that by using sarcasm and/or by not performing the job duties he told her to. The decision is mostly unremarkable, as the Commission found no discrimination based on the merits.

However, the Commission took time to address how an attorney in the agency’s OGC worked closely with the accused supervisor (in the decision, he is referred to as S1) in developing his affidavit for the EEO investigator:

In the email, Counsel told S1 it was great to have spoken with him that morning and requested that S1 provide a copy of his affidavit for review. In an email dated January 5, 2016, Counsel informed S1 that he was “the attorney assigned to assist” him with his affidavit for his EEO complaint, and he was working on revisions and should have them for S1 within the next few days. Counsel further directed S1 “not to discuss OGC’s involvement in this case with the Investigator in any capacity,” and to inform Counsel immediately if the investigator contacted him for other information. Additionally, in an email dated January 7, 2016 to S1, Counsel asked S1 to review OGC’s proposed changes and comments about his draft affidavit statements. Counsel also directed S1 “not to cc [Counsel] on the correspondence to the investigator, or otherwise share [Counsel’s] involvement in this matter,” and to ensure that all his comments were deleted from the final version of his affidavit responses.

It’s clear from the facts above that the attorney absolutely did not want his assistance to S1 to be known. Not good.

The Commission has previously held that an agency representative “should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator.” See Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), recon. denied, EEOC Request No. 0520140438 (June 4, 2015). So it is not surprising that in Josefina L., the Commission found “…that Agency counsel impermissibly interfered with the investigation… We determine that OGC’s actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency’s defensive functions.” The Commission also noted that this agency was recently sanctioned for similar conduct. See Hortencia R. v. SSA, EEOC Appeal No. 0120150228 (May 3, 2017). Strike two.

The Commission, finding improper interference, imposed sanctions on SSA in Josefina L.: EEO managers and OGC personnel were ordered to undergo training on the proper role of OGC in the EEO process. The Commission determined that “OGC’s actions did not impact the investigation or the ultimate determination of Complainant’s case to such an extent that a more severe sanction is warranted.”

If you’re thinking, “That’s it?” you had a similar response as mine when I read this case. If EEOC considers this such a huge injustice, why are the sanctions so weak?

If agencies were to take the Josefina L. decision as an EEO policy, the accused supervisor would be hung out to dry with no help, unless he hired his own attorney to assist during the investigation stage. (A quick look at the Laffey Matrix tells you that’s out of the question for most supervisors.) If agencies were to take the Josefina L. decision merely as a continued expression of the Commission’s wish list or preference, they might not change anything in the way they provide assistance during the investigation.

As far as we are aware, there is no law or regulation that specifically prohibits all agency counsel from providing advice to supervisors during EEO proceedings. But Management Directive 110, Chapter 1, Section IV, says:

Because the agency carries this responsibility of impartially processing discrimination complaints, conflicts of interest can arise when agency representatives in offices, programs, or divisions within the agency with a legal defensive role play a part in the impartial processing. This does not mean that any involvement in the EEO process by the Office of General Counsel or Office of Human Capital automatically creates a potential conflict, but instead refers to impermissible involvement in the EEO process by those employees or units of employees designated to represent the agency in adversarial proceedings. See Complainant v. Dep’t. of Defense, EEOC Appeal No. 0120084008 (June 6, 2014) (finding that an agency representative should not interfere with the development of the EEO investigative record by “us[ing] the power of its office to intimidate a complainant or her witnesses”); see also Rucker v. Dep’t. of the Treasury, EEOC Appeal No. 0120082225 (Feb. 4, 2011) (stating an agency “should be careful to avoid even the appearance that it is interfering with the EEO process.”) [bold added]

I’m all for an impartial EEO investigation. After all, the law requires it, and it’s only fair. When agency defense counsel is clearly looking to impact the investigation, we have a big problem and a violation of the law. But is impartiality automatically thrown out the window when an agency attorney assists an accused RMO through the process? Not automatically, but it should cause you to pause. Look at the bold text in MD-110. My read says that an attorney who will be defending the agency should not be involved, but it doesn’t say another attorney cannot be involved. A federal supervisor is presumed to be acting on behalf of the agency, so why shouldn’t someone in the agency (perhaps a different attorney, or an L/ER specialist not involved in agency defense) help the supervisor prepare to explain her actions to an investigator?

Is there a happy medium? What if agencies:

1 – Build a wall around an attorney in OGC who can work with the supervisor during the investigation, and then do nothing else on the case (therefore, not become the agency’s “representative”); or

2 – Use an L/ER specialist to work with the supervisor in the investigation stage, so as not to mingle the defense role with the ongoing investigation; or

3 – Hire outside counsel to work with the supervisor during the investigation stage, to assist in the development of the affidavit, and any other related matters.

Would those options make agencies more comfortable while simultaneously making EEOC happy? Your ideas and thoughts are welcome. Hopkins@FELTG.com

Summary Performance Ratings and PIP Initiation

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By William Wiley, September 19, 2018

Here at FELTG, we invite seminar participants to address follow-up questions to us in case we were unclear in class, or simply if the old memory isn’t working too well on a particular day. The following is a question we received recently from an attendee in our famous and fabulous MSPB Law Week seminar. Check out our website for the next offering of that program in your neighborhood: www.FELTG.com.

The question:

Greetings!  Hope all is well.

I have a hypothetical question related to the training we recently had regarding firing employees who cannot perform acceptably in their positions.

During your training, you walked us through the benefit of not marking an employee as ‘Unacceptable’ and simply proceeding with the PIP.  Can you please explain that rationale again?

Thank you.

Our tried and true FELTG-answer:

No probelmo. Here’s the logic tree:

1 – If you PIP an employee, he cannot challenge your judgment that his performance is unacceptable. That determination and the PIP itself are outside the grievance and EEO complaint process (with the limited exception of reprisal and hostile environment complaints). He can challenge the result of the PIP if there is a failure to perform, but he cannot challenge the initiation of the evaluation period itself.

2 – If the employee fails the PIP, you fire him. He can then appeal to an MSPB judge who will most likely affirm the removal. The MSPB appeal takes three to four months for the judge to adjudicate the removal appeal, then we’re essentially done. There is a possible higher-level review by the Board and even by the courts, but the judge’s decision is usually upheld all the way through the appellate process.

3 – HOWEVER, if you give the employee an Unacceptable performance rating at the same time you PIP him, he can separately challenge that rating. He can file an EEO complaint, have your judgment that the performance was unacceptable investigated, get a Report of Investigation, file a formal complaint with EEOC, and eventually get a hearing before an EEOC judge and a decision as to whether the Unacceptable rating was justified. That process these days takes about four years.

If you give a rating commensurate with initiating the PIP, the eventual removal arguably could be set aside years later by some crazy EEOC judge ruling that the performance prior to the PIP was not unacceptable after all.

Trust me. You do not want this ugly mess on your hands. Just don’t rate him. Initiate the PIP and it’s a much more secure action. As we always teach, do no more than required by law when you are dealing with a problem employee. The more you do, the more you will have to be prepared to defend. And the more you have to defend, the greater is the chance that somebody somewhere in the review process will find fault with something you did.

If your CBA or agency’s stupid policy requires that a summary rating of record be given at the same time you initiate a performance evaluation period, then you are stuck. However, that’s hardly ever the case. Just initiate the PIP, wait 30 days, then propose to fire the employee if he does not perform to standard in all the elements of his performance.

This is sooooo easy if you know what you’re doing.

Our Most Popular Topic This Year

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By William Wiley, September 19, 2018

When you’re in a classroom as much as we are here at FELTG, you start to notice topics that come up from participants when they form a pattern or are repeated. The most asked-for repeated topic we’ve had so far this year is for a format for a Reprimand in Lieu of a Suspension.

If you’ve attended our classes, you know that here at FELTG, we’re down on suspensions as a form of discipline. They hurt the agency sometimes more than they hurt the employee. On suspension days, the agency has to forgo the services of the suspended employee. Coworkers sometimes have to pick up the slack, not something that makes for a happy workplace. We even had a supervisor in a class earlier this year who said he had to spend nearly a thousand dollars in overtime to cover for a suspended employee. Why do these things if there’s an alternative just as good without all the downside?

And that’s where a Reprimand in Lieu of a Suspension comes into consideration. Experienced Employee Relations Specialists know how powerful progressive discipline can be when trying to defend firing an employee. As President Trump reinforced in his May 25 Executive order, progressive discipline is not mandatory, but as seasoned employment lawyers have learned, the Board gives a lot of weight to progressive discipline when evaluating the Douglas Factors relevant to a case.

Every GS-1 Employee Relations Specialist knows there are three steps to traditional progressive discipline:

1st offense –    Reprimand

2nd offense –   Suspension

3rd offense –    Removal

 The variation that we here at FELTG think is a great idea is to replace the suspension second-step with a Reprimand in Lieu of a Suspension. Here’s how that would work:

First offense – Reprimand, as usual

Second offense –

a. Propose a classic suspension.

b. Then, after the employee has responded to the proposed suspension notice, the Deciding Official offers the employee a Reprimand in Lieu of a Suspension using the format below.

c. f the employee accepts, you have avoided the workplace harm caused by a suspension, with the bonus that you will not have to deal with a grievance or EEO complaint.

Third offense – Remove as usual based on the two prior acts of discipline.

MSPB has recognized this alternative as equivalent to a suspension for many years now as long as the employee agrees to it (we’ve not seen the Board treat a unilaterally-imposed alternative in the same manner). if you’re not using them, you’re missing out on an employee-friendly management-supporting approach to discipline that can really make your life better.

We’re just busting with cutting-edge ideas like this. Come to our seminars and learn even more.

 

Reprimand in Lieu of Suspension Agreement Format

[Letterhead]

From:   [Deciding Official’s name, title, and organizational location]

To:       [Employee’s name, title, series, and grade]

Subj:     Decision Regarding Proposed [Suspension of X Days]

Date:    [Month, day, and year]

On [date of proposal notice], your supervisor proposed to me that you be suspended based on certain charged misconduct. [If the employee responded to the proposal, note that here; e.g., “You responded both orally and/or in writing to the proposal.”]  I have considered the proposal and all information relevant to the charged misconduct, and it is my determination that discipline is warranted. However, because your suspension from the workplace would cause a hardship for the agency, I hereby offer you a Reprimand in Lieu of Suspension under the following conditions:

  1. You commit to abstaining from any future acts of misconduct.
  2. You acknowledge that this Reprimand in Lieu of Suspension is a step in progressive discipline and may be used as an aggravating factor in deciding the proper penalty should you engage in further misconduct.
  3. You adopt this reprimand as a voluntary act on your part which you will not grieve nor otherwise challenge in any forum.

If you accept this offer of a Reprimand in Lieu of Suspension, please sign and return this memo to your supervisor by close of business tomorrow. If you choose not to accept this offer, I will issue my decision regarding the proposed suspension as soon as practicable.

____________________________

[Deciding Official’s signature]

 

By my signature below, I, accept a Reprimand in Lieu of Suspension under the above conditions.

_____________________________________               ____________

[Employee’s name]                                                       Date

 

 

Who’s Afraid of a Big Bad PIP?

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By William Wiley, September 11, 2018

We hear it all the time from participants in our supervisory classes. “My HR specialist advised me not to use the Chapter 43 unacceptable performance procedures with a problem employee. He said the misconduct procedures would be much easier.” The White House executive order dealing with accountability went out of its way to stress that Chapter 75 procedures were always an option instead of Chapter 43 when dealing with a poor performer, see EO 13839, “Promoting Accountability & Streamlining Removal Procedures Consistent with Merit System Principles.” Finally, the recent MERIT Act voted out of a House committee last month would abolish 5 USC Chapter 43 altogether, thereby preventing agencies from using a demonstration period to give the employee a chance to show whether he can perform acceptably.

Here at FELTG, we just don’t see the problem. Sure, if the bad employee has already done something that warrants removal, 5 USC Chapter 75 adverse action procedures are preferable. Otherwise, 5 USC Chapter 43 procedures offer a list of advantages, and they are easy to use.

One aspect of the unacceptable performance procedures that causes a lot more problems than it should comes from the document that must be given to the employee to initiate the evaluation period. So many agencies overwork that particular memo, adding in a bunch of things completely unnecessary to having a legally viable document. Stuff like:

  • Instances of previous unacceptable performance that caused the supervisor to implement an evaluation period.
  • Referrals to EAP, EEO, medical providers (in case there’s a disability), OSC (in case the employee thinks he’s being reprised against for whistleblowing), etc.
  • Lengthy paragraphs as to how important it is to the mission of the agency that the employee perform acceptably, admonitions to work hard and prosper, and promises of tremendous help and guidance throughout the period.

Not only does all this extra language take more time, but it does nothing useful for the agency, and in some instances can even cause more trouble than necessary. Look. You want to initiate a demonstration (aka PIP) period? Easy peasy. Send the employee an email like this:

Bill-

It’s come to my attention that lately you have not been performing acceptably regarding Element 3 of your annual performance plan (attached). I have decided to give you 30 days to demonstrate whether you can raise your performance to an acceptable level. Starting today, here are some things I need you to do.

1 – Keep copies of every document (including emails) you create relative to the tasks that relate to Element 3.

2 – Keep a log of all phone calls and in-person discussions. Note the person involved, the content of the discussion, and whether any follow-up was required on your part.

3 – Meet with me every Friday for the next 30 days to discuss your progress for the week. We will meet in the main conference room at 2:00 PM, and you are to bring the above with you.

If you fail to accomplish three or more Element 3 assignments during the evaluation period, regrettably I am required to initiate steps to remove you from your position. Should you have any questions regarding my expectations of you, please direct them to me at any time.

Those of you with sophisticated computer skills might even be able to squeeze this into an instant message. Or, even a 280-character tweet. This is not hard. In fact, it is embarrassingly easy. If you believe that more is required, you do not understand the law of civil service performance accountability. Hey, that’s OK. Come to our classes. Learn the best way to do this business. Tell the folks on Capitol Hill and in the White House that we don’t need new laws, we just need good training. Hey, you can have us come out to train you. Or, if drafting the above email is just too much for you, we’ll even do it for you.

Don’t let poor performers get you down. FELTG is here to help. Wiley@FELTG.com

The New Definition of Collective Bargaining

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By William Wiley, September 3, 2018

As we talked about in this space last week, a federal district court judge has recently enjoined (stayed, put on hold) major parts of the three Executive Orders that were issued by the White House back in May. The EOs were intended in large part to curb the accomplishments of unions in the civil service. The court’s order declared the EOs to be illegal primarily because by setting out bargaining objectives, the President has effectively foreclosed agency officials from negotiating for anything other than those objectives. The judge concluded that the President’s setting of bargaining objectives was an impermissible interference with a union’s rights in negotiating with management. The court reasoned that by definition collective bargaining requires the parties to be “flexible,” to bargain in a “give and take manner,” and to work toward a “mutually acceptable resolution.”

Well, where did this new definition of collective bargaining come from?

Here’s how the law has defined collective bargaining in the federal sector for over 40 years:

The performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession. 5 USC 7103(a)(12)

Somebody show me the word “flexible” in here. Where does the law require that the negotiators have to both “give and take”? The law says that there should be “effort to reach agreement.” Where does the judge find the definition of “agreement” to mean “mutually acceptable” agreement?

Consider the “mutually acceptable” tweak for a moment. If you tell me I have to sell my used car for a “mutually acceptable” price, I cannot stand firm on my asking price and I have to keep making concessions until the buyer says, “I’ll take it.” Maybe that’s a good way to negotiate if you’re having a garage sale because in reality, you just want the junk out of your garage, and you’ll take any offer just to get someone to haul it away. In comparison, selling your old Porsche is not a yard sale. You have a firm price and it can sit in that garage until your kids have to deal with it during the probate of your will for all you care. You are not letting it go for less than what you consider to be its value.

Collective bargaining in the federal government is not a garage sale. If the union demands free office space in a proposal, management should be free to just say no. Nothing in the law or derived case law says that an agency engages in bad faith bargaining by refusing to concede things to the union, or that management negotiators have to be “flexible” and engage in “give and take.” The court effectively is mandating that if management (or, I guess the logic would hold true for the union, as well) is inflexible and refuses to make a concession, it is violating the law. Well, the law says very specifically that collective bargaining “does not compel either party to agree to a proposal or to make a concession.” The very words “flexibility” and “give and take” imply the making of concessions. The judge in this case has misapplied the law.

The court’s decision concludes that the EOs impermissibly interfere with the union’s rights to collective bargaining. That’s equivalent to saying that the EOs require bad faith bargaining. If you know your FLRA case law, you know that bad faith bargaining occurs, inter alia, when a party refuses to meet, refuses to consider the views of the other party, or refuses to participate in the impasse process. There has never been a single Authority decision that says a party engages in bad faith bargaining by refusing to make a concession, by being inflexible, or by abstaining from giving and taking.

Had the White House issued an EO that directed the Federal Service Impasses Panel how to rule on impasses brought before it, then, in our humble opinion here at FELTG, that would be an impermissible interference with the union’s rights to collective bargaining. The EOs don’t do that. Instead, they lay out objectives to be attained within the framework of collective bargaining consistent with the law. They acknowledge the collective bargaining process and do not attempt to interfere with the conclusion of that process before FSIP, if necessary.

The court’s decision effectively bars the President from providing guidance to agency heads regarding negotiation objectives to be attained through collective bargaining. However, 5 USC 301, read in consideration of 5 USC 305, makes the President, through subordinate agency heads, responsible for “determining the degree of efficiency and economy in the operation of the agency’s activities.” One would think that this statutory scheme allows the President to exercise this responsibility by providing direction and guidance to agency heads regarding the significant adverse effects to governmental efficiency and economy that can result from poorly negotiated collective bargaining agreements. Apparently, this judge does not think so.

There may be some very smart people who conclude that the EOs go too far, that the objectives that the White House has laid out are not good for America and are unfair to the unions. Heck, we might even believe that here at FELTG (although we try not to think too deeply these days). It’s just fine to disagree with the EOs as a matter of policy. However, that does not make the EOs illegal. The judge in this case seems to be saying that because the White House has declared certain policy objectives that the union will not like, the EOs violate law. No, that’s a policy conclusion. Courts should be making legal calls, not policy calls. Wiley@FELTG.com

Big Parts of the Recent Executive Orders Bite the Dust

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By William Wiley, August 28, 2018

As every reader of our FELTG articles knows, on May 25, 2018, the White House issued three Executive Orders directed at the federal workforce. Two of them were intended to curtail union activity in the civil service and the third was designed to increase the ability of supervisors to hold employees accountable for misbehavior and shoddy work performance. On August 25, a federal district court judge in Washington, DC, set aside (enjoined) significant parts of those orders as illegal, AFGE, et al v. Donald J. Trump, et al, DC District Court No. 1:18-cv-1261 (KBJ). In doing so, the judge put a broader spin on the concept of collective bargaining than we’ve ever had before. Here’s what you need to know now.

First, these are the specific sections of the EOs that have been enjoined:

  • 13,836 (Bargaining Obligation) – Sections 5a, 5e, and 6
  • 13,837 (Official Time) – Sections 3a, 4a, and 4b
  • 13,839 (Accountability) – Sections 3, 4a, and 4c

All the other sections were found to be valid. Also, these sections are invalid only as they apply to management’s collective bargaining obligation.

Next, here are the actions called for by the EOs that are no longer valid:

EO 13,836

  • Setting time limits for bargaining
  • Requiring only written proposals be exchanged, not oral
  • Barring the bargaining of the “permissive” topics of negotiations

EO 13,837

  • No official time for unions to lobby Congress
  • No official time to pursue grievances
  • 25% limit on individual use of official time
  • Limit on total amount of official time that can be negotiated
  • No more free office space or free equipment for the union
  • No more expense reimbursement for union officials

EO 13,839

  • No 30-day limit for performance demonstration periods (aka PIPs)
  • No more grieving anything relative to awards

Finally, an overview of the content and rationale of the court’s decision:

Content – Fully half of the decision is a discussion of the court’s jurisdiction and the ripeness of the issues that constitute the union’s arguments against the EOs. If you got an “A” in civil procedure in law school and think that Constitutional law is the cat’s meow, be sure to savor this section. For the rest of the FELTG Nation, you can spend your time with other more relevant matters.

Rationale – Follow this logic chain closely. It contains a leap in concept that could turn bargaining in the Federal Service on its head.

  1. It is the intent of Congress, as expressed in the preamble to the Civil Service Reform Act of 1978, that agencies and unions engage in collective bargaining.
  2. Although an EO is effectively a law for the purpose of collective bargaining, an EO cannot subvert the intent of Congress.
  3. Collective bargaining requires that agencies approach negotiations with an open mind “with every intention of coming to a mutually acceptable result,” demonstrating flexibility in a give-and-take process.
  4. Presidential statements in an EO, no matter whether they are directive or simply suggestive of goals, prevent agency officials from having an open mind. In this case, they effectively declare certain matters to be “non-negotiable.”
  5. Therefore, because Congress intended that agency negotiators have an open mind, and the EOs take away negotiator open-mindedness, those parts that deny flexibility are illegal.

As a separate issue, the decision takes a swing at a principle articulated by former FLRA member Patrick Pizzella. Member Pizzella argued in dissent in several FLRA decisions that the statute’s statement that collective bargaining should be done in mind with keeping the government efficient. The judge in this case dropped footnote 14 to indicate that she felt such an argument to be wrong. She reasons that Congress has declared by definition that collective bargaining creates an efficient and effective government. If I understand her correctly, you cannot have an inefficient or ineffective government if you have collective bargaining. There’s a whole lot of Kool-Aid in that concept, if you know what I mean.

OK, this should be enough to help you keep your head above the water for a while. If you, as management, are currently engaged with a union in negotiations regarding EO mandates, you have to back down from any arguments that your proposals are the result of the directions given in the EOs. For example, you can no longer say to the union, “We demand a 25% cap on official time use by a union official because there’s an EO that says so.” However, there’s nothing that says you cannot say, “We demand a 25% cap on official time use by a union official because excessive official time is bad for America and because a federal pay check should be based primarily on the performance of federal work, not union activity.”

And finally, keep in mind that the heart of this decision is that certain parts of these EOs impermissibly interfere with collective bargaining. The court makes it clear that it is enjoining those parts only and that the remainder of the EOs are valid. Therefore, as the accountability EO applies to both bargain unit and non-bargaining unit employees, it is invalid only as to the bargaining unit employees. The requirement for a 30-day demonstration period for non-bargaining unit employees, for example, remains the directive of the President.

We mentioned above that there’s a scary tweak in the rationale of the court relative to the legal concept of collective bargaining. In some ways, it’s a bigger issue than what has been enjoined here. Check back with us for a discussion of that horror in a later FELTG article. What exciting times!  Wiley@FELTG.com

GAO, Tell Us Something We Don’t Know

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By William Wiley, August 21, 2018

GAO recent released what could have been a Breaking News report entitled “Federal Employee Misconduct: Actions Needed to Ensure Agencies Have Tools to Effectively Address Misconduct (July 2018).” Given the recent kerfuffle about increasing employee accountability through Executive Order and redesigning the civil service through legislation, one would have hoped for some data and recommendations from a neutral outside body as to what can be done to make things better. Unfortunately, although in many ways comprehensive, the report doesn’t really set any pants on fire with its recommendations.

First, a short look at some of the report’s findings that parallel what we’ve been screaming from the FELTG mountaintop for about 20 years:

  • Supervisors should receive initial and ongoing training in discipline and performance procedures.
  • Supervisors should be held accountable for addressing misconduct in a timely manner.
  • Human resources and legal staff should work together with the supervisor to help put together the necessary adverse or performance action.

In addition to these recommendations (which we heartily support, but are nothing particularly ground-shaking) GAO unearthed some helpful statistics when it comes to the current health of our civil service accountability measures:

  1. Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year.
  2. 25% of employees who are suspended have been suspended before.
  3. Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions.

The thing that’s missing from the report that would be immensely helpful is for SOMEBODY to address this data and make a determination as to whether this indicates a well-functioning civil service discipline program, a mediocre program, or a program that we could not trade for a bucket of warm spit. The White House tells us that it wants the government to be run like a business. Well, wouldn’t it have been helpful to have some comparative statistics from private businesses? How about other countries that have what we would consider to be well-functioning civil services? Does France discipline its “fonctionnaires” at a rate similar to ours? How about the Crown employees in the UK? How often does the Queen act as a Deciding Official in a removal case?

Somebody needs to take this data and turn it into policy. As usual, since nobody else is picking up this responsibility, we here at FELTG jump into the driver’s seat because this bus isn’t going anywhere until policies get crafted and implemented. So here we go. The FELTG take on what to do with the data above:

Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year. This number seems low by about 80% of what it should be. Several years ago, the MSPB Chairman said that the percent of the federal workforce that was not doing its job is around 5%. That number matches up nicely with what studies of large organizations have shown us is true in the private sector and academic institutions: About 5-7% of the workforce needs to get better or get fired. Given that we appear to be exceedingly low in the number of disciplinary actions taken each year, our FELTG recommendation would be:

  • Mandatory training for all supervisors, HR staff, and attorneys in how to take these actions fairly and efficiently.
  • Performance standards for all supervisors that rate them on their accountability efforts.
  • Targets for HR offices and agency counsel that set the number of employees that should be fired based on a percent of the workforce; e.g., agencies would be expected to hold HR and legal offices responsible for supporting supervisors in disciplining or removing 3% of the workforce each year.

25% of employees who are suspended have been suspended before. If discipline is supposed to be corrective rather than punitive, it makes no sense to impose a second suspension if the first suspension did not correct the bad behavior. Albert Einstein is broadly credited with exclaiming, “The definition of insanity is doing the same thing over and over again but expecting different results.” Our FELTG recommendation would be that agencies who choose to use suspensions in their accountability programs state in their discipline policy instructions that supervisors can suspend employees once, but no more than once, absent exceedingly rare circumstances, and then only with the approval of the agency’s CHCO.

Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions. Long suspensions hurt the agency often more than they hurt the employee. Who is going to do the work of the suspended employee for the three or more weeks he’s not at work? Will the agency hire temporary contractors? Pay for overtime? Or, simply not cause the work to get done? As for demotions, they hardly ever make sense. If you demote an employee, you now have to accept work at the lower grade. If an employee has done something bad enough to warrant a demotion, 95 out of 100 times, removal is also warranted. Executive Order 13839 states that a “suspension should not be a substitute for a removal.” The same could be said for demotions. Our FELTG policy suggestion is for agencies to state in their discipline policy instructions that supervisors are not to use long suspensions to discipline employees. In addition, voluntary demotions can be offered to employees in lieu of a proposed removal, but otherwise should be avoided.

The GAO report also raises a couple of Deep Thought policy issues beyond those we’ve discussed above. We’ll save an analysis of those for another article. Wiley@FELTG.com