Whiners

,

By William Wiley, July 24, 2018

Lordy, you would think that the President’s three recent Executive Orders were going to cause the civil service to implode, thereafter leaving a vast wasteland of impoverished traumatized federal employees. I haven’t heard this much whining since I got my head shaved for Navy boot camp (funny note; the whining was all mine). Let’s look at a few complaints I’ve seen in the media about the negative effects the EOs will have on the civil service, and our snarky FELTG responses to each issue:

The 45-day time-limit for amending agency discipline and performance instructions to conform with the EOs is too short.

An agency usually has a single discipline instruction. It can be brought into conformance with the EOs by adding a paragraph at the end like this:

  • Supervisors can consider all past discipline as aggravating factors when deciding what level of discipline is to be imposed for a current act of misconduct.
  • After receiving the employee’s response to a proposed adverse action, the deciding official should issue a decision within 19 days.
  • The notice period for a proposed adverse action should not exceed 30 days.

The grievance instruction can be amended with the following language:

  1. Exclusions: Employees may not grieve performance ratings, awards, incentive pay, or recruitment/retention/ or relocation payments.

The performance management instruction can be amended with the following language:

  1. When an employee’s performance falls to the Unacceptable Level, the supervisor will implement a 30-day evaluation period to allow the employee to demonstrate whether he can perform at an acceptable level.

If the agency has an instruction relative to discipline alternatives or settling cases, those have to be amended to preclude a clean record settlement once a document is placed in an employee’s official file. If the agency has an instruction relative to report filing, that will have to be amended to provide for the new reports called for relative to adverse actions and performance actions.

There. That took me 10 minutes. Most any Human Resources I’ve ever worked with can take it from here in much less than 45 days.

Employees will need more than seven days to prepare a response to a proposed removal because the agency will need more time than that to respond to the union’s request for information.

The agency has no obligation to delay a proposed removal decision until it responds to the union’s request for information. Any agency that does that is foolish.

It takes longer than seven days to coordinate the schedules of the individuals involved in an oral response.

No, it doesn’t. As we’ve taught for many years in our FELTG seminars, the date and time for the oral response should be stated in the proposal notice. That sets the availability of the deciding official. The employee is on the payroll during the notice. Therefore, he can be told where to be when. If the employee cannot find a representative who can be at the set date for the response, he should find another representative. MSPB has never held that an agency commits reversible error by not accommodating a representative’s calendar to schedule an oral response.

Deciding officials need a lot of time to evaluate an employee’s response.

When I worked at MSPB, Board members had to review entire case files on average within two hours. Yes, there was preliminary summarization of the facts and argument by support staff (me), but that work hardly ever took more than four hours. The EOs give the agency’s deciding official 19 days to evaluate existing facts and argument. Juries often do the same thing in a few days. The President is saying that these decisions should be made promptly. In my world, 19 days is a generous period of time to analyze arguments and facts.

There are situations in which the deciding official might have to provide the employee a new response period; e.g., perhaps new information has come to the attention of the deciding official and she plans to rely on it in making her decision.

Then, the 19 day clock resets until the employee has had a final opportunity to respond to the new information.

It takes significant time for a decision letter to be drafted.

Not if the agency representatives have been through FELTG training. An ideal decision letter is three sentences and then the appeal rights section:

  1. On x date your supervisor proposed to me that you be removed from service based on the charges in the attached proposal notice.
  2. You and your representative have responded to this notice, and I have considered your response.
  3. It is my determination that it is more likely than not that you engaged in the conduct described in the charges in the proposal letter, and that your removal is warranted based on the assessment of the Douglas Factors contained in the proposal notice.

The accountability EO shifts the focus of the evaluation period for a poor performer from improvement to demonstration of acceptable performance.

No. For 40 years, the law has said that the evaluation period is for the DEMONSTRATION of acceptable performance, not the IMPROVEMENT of performance. It’s a final exam, not a training class. The EO simply restates what has been the law for four decades. There is no shift.

We don’t know how much legally-required assistance has to be provided during the evaluation period, nor how long an evaluation period has to be to be legally acceptable.

Well, that would be correct IF WE HAD NEVER READ ANY MSPB DECISIONS. The Board routinely acknowledges that giving the employee feedback during the demonstration period satisfies the legal requirement for assistance from the agency. Also, the Board routinely holds that 30 days is generally adequate to evaluate the performance of a poor performer.

And finally, we hear from well-intended members of Congress that the EOs are taking away union rights. Well, no, they are not. They are curtailing benefits that management has ceded to unions through collective bargaining, but only when the law allows for such action; e.g., a CBA expires or is reopened.

In analogy, you may think that your old car is worth $10,000 and you might propose that you be paid $10,000, but that doesn’t mean when I tell you “no,” that I have somehow violated your rights to $10,000. Our friends on the union side have negotiated for significant contractual provisions for the use of official time for union work. However, contracts have term limits, and when those limits are exceeded, the parties are again equal and everything is back on the bargaining table. If Congress had intended that unions have different rights, it certainly could have included those in the law. It did not.

These are exciting times in the world of federal civil service law. Being a part of that world, we here at FELTG are excited, as well; not necessarily because of the specifics of the EOs, but because it is legally fascinating to see an old law like the Civil Service Reform Act of 1978 doing new tricks. After one of our recent webinars on the EOs, a participant told me that Deb and I sounded absolutely giddy. Well, we are. We are giddy that the system is working, that neither management nor unions control federal sector labor relations, that the EOs are simply a tool to be used in collective bargaining, this time to rein in some of the excesses of previous management negotiators. No doubt the next time, the smart guys on the union side will figure out how to take some of it back.

That’s what union/management negotiation in the civil service was always supposed to be: give and take, then more give and take. The White House has not ended collective bargaining, it has re-energized collective bargaining. None of us really knows where we will be with these EOs come this time next year, but one thing is sure. Wherever we are, it will be the result of the process that Congress intended when it invented statutory collective bargaining in 1978. Whiners, if you don’t like that, change the law. Until then, suck it up and learn to negotiate.

Geez, where can someone learn to negotiate in the federal government? Why, my goodness. FELTG appears to be offering an entire week of training on that very topic October 15-19 in Washington DC, just five blocks from the place that issued the EOs. Be there or be square. Wiley@FELTG.com

I Can’t Keep Up with this Stuff

,

By William Wiley, July 19, 2018

Recently, you readers got an article from us (me) here at FELTG that purported to describe the MERIT Act that is moving through Congress. Well, as it turns out, it’s moving faster than I can keep up with. Thanks to a heads-up email from a very important reader, we now know that our article described an earlier version of the bill that was subsequently amended.

The most recent version of the bill contains the following significant changes:

Current Law MERIT Act Changes Original MERIT Act Changes Now
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed. 7-day minimum; 21-day maximum notice period. The period of advance notice of proposed action is reduced to 15 business days. The period of time in which an employee has to respond to a notice of proposed action is reduced to no more than 7 business days. This actually increases the employee’s response period by two days from the current seven calendar days. It reduces the overall notice period from 30 days of pay to 19 days of pay.
30-day maximum time period to file an appeal of a removal to MSPB. 7-day maximum period of time to file an MSPB appeal. The appeal must be made not later than 10 business days after the adverse action is effective. That’s 12 calendar days, for those of you used to counting days that way, down from the current 30; less time to find a representative and draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal. A firm 30 days for the MSPB administrative judge to issue a decision. No time limits on the Board’s judge to make a decision.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred. No more whistleblower stays. Stays of whistleblower reprisal claims are OK.

If you think that these changes are significant, get a load of these:

  • The ability to use demonstration periods and to remove employees for failing performance during the demonstration period is repealed (5 USC Section 4303). No more PIPs, ODAPS, or any other opportunity to demonstrate acceptable performance.
  • Unionized employees can no longer grieve and arbitrate removals, long suspensions, demotions, RIFs, or furloughs greater than 30 days.
  • Furloughs of 14 days or fewer may no longer be appealed to MSPB.
  • Demoted SESers for poor performance can no longer retain the pay of the higher-level position.
  • SESers may be suspended for fewer than 15 days.
  • Employees who are removed or proposed to be removed for committing a felony will cease to accrue time credit for an annuity during the period the felonious misconduct occurred. Not sure how this will be applied as sometimes it takes just a few minutes to commit a felony.
  • Agencies may recoup award, relocation, recruitment, and retention monies paid to an employee if the agency subsequently determines that the employee engaged in misconduct or unacceptable performance prior to the payment.
  • Probationary periods are to be extended from one to two years.

In addition to the MERIT Act, HR 559, the House Oversight Committee this week also voted out HR 6391. Add the following potential changes to your to-think-about list:

  • Individuals who appeal their adverse actions to MSPB will have to pay a filing fee, refundable if the appeal is successful. MSPB will set the fee amount, to be no more than half of what a filing fee is in district court (currently that would be half of about 50 bucks).
  • The Board can mitigate a removal to a suspension or less only if the removal is so disproportionate as to be wholly without justification. Now, the agency has to prove that the penalty is within the range of reasonableness by a preponderance of the evidence.
  • The Board may grant summary judgment motions and decide the appeal without a hearing. Now, the MSPB judge is obligated to provide the employee a hearing if he asks for one.
  • Appellants no longer have an unfettered right to a hearing on appeal even without a summary judgment motion.
  • Board members can be reappointed once their terms expire. This has always been the case at FLRA and EEOC, but not before at MSPB.

Whew. if you are not blown away by these changes, you must be highly medicated. Some changes would be effective within 90 days of the day the bill becomes law, others have a one-year date for implementation. There are other parts of the pending acts that address secondary issues, but this Executive Summary captures most of the issues you need to know about now.

I am reminded of a day in the fall of 1978 when, as a young HR lad, I sat in on a staff meeting in the civilian personnel office where I had been employed for just over a full year. Somebody passed out copies of the Civil Service Reform Act of 1978 and the attendees all began to discuss it. I, naively, said, “Hey, is this a big deal? Does it really matter that we just got a new civil service law? Doesn’t this kind of thing happen all the time?” Over the ensuing laughter, I was quickly informed that, yes, Virginia, it is a big deal (don’t know why they called me “Virginia”). When Congress makes significant changes to civil service law, the whole government catches its breath.

We, the members of the civil service law profession, just caught our collective breath. And, we should each hold onto it until we see what comes out of the Senate relative to these bills. Or, we faint, whichever comes first. Buckle up, kids; the ride, she will be bumpy. Wiley@FELTG.com 

Don’t Say We Didn’t Warn You; the End Times are Upon Us

,

By William Wiley, July 18, 2018

We have been shouting from the pages of our articles and in our classroom seminars (and webinars) that because we are not doing a good job of holding employees accountable, we are on the verge of losing our federal civil service. We leave it up to you, the informed reader, as to whether that is a good thing or a bad thing. But it is a thing nonetheless. And the verge just got a full step closer.

About 18 months ago, HR-559 was introduced by a bunch of Congresspeople in the House of Representatives. If you know how Congress works, members introduce a lot of bills to make sure, in part, that they have something to brag about when they communicate with their constituents. Now, most of those bills never make it to first base. They are assigned to a committee, and the committee discretely fails to act on the submission. Congressional representatives get points for the introduction, and that’s about it. If a bill is ever voted out of a committee, that’s huge, because now it goes to the floor for a vote, a vote that usually agrees with the recommendation of the committee, especially if the bill has many cosponsors. Given that this particular bill sat in committee for a year-and-a-half suggested that it would die the fate of most pieces of proposed legislation, and just fade away.

Well, well, well. Guess who just made it to first base? That’s right, HR-559, the MERIT Act of 2017, was voted out of committee recently. With 55 cosponsors (all Republicans, if you care), it now stands an excellent chance of being adopted by the entire House. That would be second base. Then, it goes to committee in the Senate where historically many House-passed pieces of legislation go to die. However, this year is different from many others:

  • The Senate has signaled that it is geared up to pass legislation and confirm Presidential nominations by significantly shortening its usual month-long August recess.
  • In case you haven’t noticed, there’s a midterm election coming up in November. Look at your three-part government-issued calendar hanging on your wall. That’s just a couple or three pages from now.
  • Congressional Members and Senators love to take recently-passed legislation to the voters near elections to show them that they take governing seriously. What could be more serious governing than creating a law to make it easier to get rid of bad government workers? You know, those federal employees that the public, in general, thinks are over-paid and under-worked?
  • Republicans who support the President, according to the Washington Post, are winning elections over Republicans who do not.
  • The President, in his State of the Union speech, said he wants the law changed to make it easier to fire federal civil servants.

Being a betting person, if I had the opportunity, I would bet that this bill is going to make it to third base (committee passage in the Senate), and then to home plate (adoption by the full Senate) before the end of the year. With that in mind, let’s take a look at how our civil service will change if the MERIT Act indeed does become law:

Current Law MERIT Act changes
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed. Some agencies have kept employees on the payroll for more than a year after issuing a proposal. 7-day minimum; 21-day maximum notice period. No more extended pay period beyond the removal being proposed. Not only does this change reduce the pay to the employee, it also restricts the amount of time he and his representative have to prepare a response to the proposal.
30-day maximum time period to file an appeal of a removal to MSPB. 7-day maximum period of time to file an MSPB appeal. Less time for the fired employee to find a representative. Less time for the representative to draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal. A few AJ decisions take many months beyond this goal because of complexity and workload. A firm 30 days for the MSPB administrative judge to issue a decision. If the judge exceeds this time limit, the removal stands. Also, MSPB has to report the failure to Congress where the judge’s next birthday will probably be cancelled.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred. No more whistleblower stays. There really weren’t many of these anyway, but man-oh-man, were they a poke in the eye when they occurred.
Each fact and the ultimate justification for a removal must be supported by a preponderance of the evidence. This means that the firing agency must present evidence to MSPB that it is more likely than not that the removal is justified; i.e., that removal is probably warranted. This is a significantly lower burden of proof than the beyond-a-reasonable-doubt burden required to convict someone of a crime. A removal must be supported by substantial evidence, a lower burden than preponderance. The agency must prove that removal might be warranted, not that it is probably warranted. The Supreme Court has described this evidence burden as a grain more than a scintilla. Most cases we lose are not lost for lack of proof; most are lost for using bad procedures. However, this will help with those where proof is controlling. *

* Here’s an example of how the lower burden of proof most likely would have helped an agency. Several months ago, our friends at the Forest Service fired an employee for engaging in unwelcome sexual conduct after hours in his government-provided housing unit on agency property. The judge who heard the appeal set it aside, reasoning that the agency had not proven that there “probably” is a nexus between the off-duty conduct and his agency employment. In my opinion, and it is worth exactly what you are paying for it, a judge would be hard-pressed to conclude that the agency failed to prove by at least substantial evidence that there “might be” a nexus. Those grains and scintillas are mighty tiny, you know: a jot, a whit, an iota, a scrap, an itty-bitty trace.

So, let’s put all this into perspective. If the MERIT Act becomes law, we still have a protected civil service. However, if in today’s world you believe that on a scale of 1-10, the effort necessary to fire a bad federal employee is about an 8, the level of difficulty under the MERIT Act now drops it to about 2-3. We can still lose cases on appeal if we, for example, violate the employee’s due process rights and the judge acts quickly enough to reverse the removal. The act does not go as far as the law change over at the Department of Veterans Affairs last year where there is now no mitigation of the penalty. Under the MERIT Act, agencies will still need to do a Douglas Factor analysis. Nor does the act take away MSPB appeal rights altogether, as was done to SESers at VA. The core rights of federal employees to be treated fairly remain in place. However, the mechanisms by which an employee can exercise those rights will be significantly restricted.

Keep in mind that this is still only a bill. The Senate is known for taking the edge off of House-passed legislation. Your guess is as good as anyone else’s as to what sausage will come out the other end of this legislating process. However, if the MERIT Act becomes law, whatever you do in the civil service will change significantly. And, it’s because in large part we have not effectively used the existing laws to hold bad employees accountable. Keep THAT in mind as well as you move toward implementing whatever it is that finally comes out of Congress.

Wiley@FELTG.com

What’s Harm Got to Do With It, Got to Do With It? – Or, Determining Compensatory Damages

, ,

By Meghan Droste, July 18, 2018

I apologize/you’re welcome for putting that 80s classic in your heads. It may have been the recent debate in my office about the relative merits of other great 80s artists that made me think of it, but that Tina Turner hit is also somewhat related to the idea of compensatory damages. It’s all about emotions, and broken hearts and how to heal them. Tina Turner’s suggestion seems to be to try to avoid falling in love so that you don’t get your heart broken. Of course, in EEO cases, the harm has already happened. Until someone invents a time machine, we can’t avoid it. What we can do is compensate complainants for the harm. Pecuniary damages are usually straightforward — simply reimburse the complainant for her out-of-pocket expenses — but non-pecuniary damages can be more complicated. How can we really put a price on emotional distress?

Sometimes both the pecuniary and non-pecuniary damages are complicated by preexisting conditions and other factors. The Commission’s decision in Stephanie A. v. Department of Defense, EEOC App. No. 0120161052 (June 5, 2018) lays out some of the important factors to consider. In the underlying complaint, the Commission found the Agency subjected the Complainant to sexual harassment and retaliation. Following the Commission’s first decision, the Agency issued a Final Agency Decision on damages.  The Agency found the harassment “severely affected” the Complainant and exacerbated several health issues for an extended period of time (10 years passed between the initial harassment and the appeal). The Agency determined that the appropriate award was $60,000 in non-pecuniary damages and $3,113.64 in pecuniary damages, along with the restoration of 91 hours of leave. The Complainant appealed the FAD on the grounds that the pecuniary and non-pecuniary awards were insufficient.

In its decision, the Commission noted that “[t]here is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm.”  Although the Commission declined to increase the award to $300,000 as the Complainant requested, it did consider her testimony that she “suffered nightmares, developed stomach ulcers, anxiety, irritable bowel syndrome, and acid reflux.” The record also contained statements from family members who described the significant impact of the harassment on the Complainant’s physical and mental health. The Commission found the harm was severe and long-lasting, and awarded the Complainant $100,000 in non-pecuniary damages.

The Commission also increased the award of pecuniary damages. The Commission found that the Agency improperly reduced the out-of-pocket expenses by dismissing most of the $50,000 in prescription medications as being connected to chronic conditions that the Complainant suffered from before the harassment. The Agency further reduced the award by considering what the Complainant’s insurance covered for appointments and testing. The Commission found these reductions to be improper.   Although the Agency was correct that the Complainant’s conditions began before the harassment, the Agency failed to consider the evidence in the record that the harassment significantly exacerbated these conditions. The Agency could not avoid compensating the Complainant for the notable increase in prescription medications and appointments just because its actions were not the initial cause of the conditions. The Agency also could not reduce its liability based on insurance payments. As the Commission reiterated, under the collateral source rule, an agency may not reduce pecuniary damages awards based on the portion of the full costs an insurance carrier covers. It must instead pay the full cost of the healthcare.  As a result, the Commission increased the pecuniary damages award to $107,381, over $100,000 more than the Agency’s original award.

In a perfect world, we will prevent harassment from occurring and address it immediately, if and when it does occur. In our imperfect world in which harassment still goes on and complainants are still harmed, be sure to do the math correctly when considering an award of damages. After all, the answer to “What’s the harm got to do with it?” can be a lot. Droste@FELTG.com

Here Comes OPM with Guidance Relative to the New Executive Orders

, ,

By William Wiley, July 18, 2018

So many practitioners have wondered just what the President’s Executive Orders issued May 25 actually mean. We’ve received hundreds of questions here at FELTG, and we’re just a little training company who contracts occasionally with federal agencies. I can’t imagine what level of questioning there has been within the Executive Branch where answers actually carry official weight.

We were all excited to see that OPM, as the leader in human resources management in the federal government, recently (July 5) issued several pages of guidance as to how to implement the EOs. That is, until we read the guidance and then came away with that same empty feeling that comes from eating kale for dinner. Remember that lady years ago in the commercial who wondered, “Where’s the beef!?!” Yeah, I know exactly what she feels like.

First, the general shortcomings in OPM’s “Memorandum for Heads of Executive Departments and Agencies.” Lots of highfalutin words that repeat and paraphrase the EOs, but add little substance that actually helps those of us out here on the front lines trying to make government work. For example, the guidance spends a lot of time talking about the new requirements for reports and team participation. Yes, that’s important stuff. But if I’m a GS-12 Labor Relations Specialist servicing an HHS Indian Health Service clinic in South Dakota, and tomorrow I have to meet with the ticked-off union President to tell her what we’re going to do with the mandates in the EOs, I get little help from the guidance. In fact, on a couple of tough issues, the guidance says that if I have any questions, I should refer them to a local labor relations advisor. Heck, I AM the local labor relations advisor. I’m the one who needs more guidance.

Secondly, and I know this is picky, but the guidance is written by someone who has spent waaaay too much time writing government bureaucratese. Too many vague words written with an undeserved degree of officialness, with no practical guidance about how to go forward. For example, I ran into an abominable sentence with 65 words in it. Come to our legal writing seminars here at FELTG and learn how to write shorter sentences that are easier to understand. I hate officious government bureaucratese. And, so do you.

Third, the guidance from OPM is just flat out wrong in a couple of areas. For example:

  • The guidance says that agencies are required to use FMCS and FSIP when trying to implement the changes required by the EOs. Well, I can’t find that requirement in law. If an agency wants to make a change, and after good faith bargaining it reaches an impasse with the union, the agency is free to notify the union that it will implement its last final offer by some date in the future without invoking either FMCS or FSIP. When that is done, it is then up to the union to either make new proposals to break the impasse or to invoke FMCS and FSIP. There is no statutory obligation for the agency to invoke the impasse procedures.
  • Separately, when discussing the EO that makes it clear that progressive discipline is not a prerequisite to firing a bad federal employee, it adds the additional language that “consideration of progressive discipline is not … permitted when administering disciplinary action.” None of the EOs say that, and if they did, it would be inconsistent with 36 years of law implementing the Douglas factors in penalty assessment. Of course, we have to consider whether the employee has been previously disciplined. The EOs simply say that we are not bound to something less than removal if the employee has not been disciplined before.

Finally, and this is the big one if you’re working in a unionized organization, OPM’s guidance – without citing to any authority for the proposition – concludes that the EOs carry the weight of a government-wide regulation EVEN THOUGH there is good authority that says that an EO carries the weight of law. Here’s the 30-year old authority for the position that these EOs carry the weight of non-negotiable laws:

“As to whether Executive Order 12564 [an EO dealing with drug testing] constitutes law or Government-wide regulation within the meaning of section 7117(a)(1) of the Statute, we find that it has the force and effect of law. Courts consistently have held that executive orders issued pursuant to statutory authority are to be accorded the force and effect given to a law enacted by Congress. Executive Order 12564 was issued pursuant to the President’s statutory authority to regulate the civil service.” NTEU & Army, 30 FLRA 1046 (1988). [The President’s statutory authority to regulate the civil service comes from 5 USC 301 and 302, for those of you new to the business.]

So, what difference does it make if the EOs carry the weight of law or instead the weight of government-wide regulation? Well, it’s a HUGE difference:

  • If the EOs are effectively law, they are controlling NOW without bargaining with the union. We just tell the union that there’s been a change in the law and wait for the union to propose impact and implementation proposals.
  • If the EOs are effectively government-wide regulations, then we CANNOT implement them immediately. Instead we have to wait until to either a) the existing CBA expires, or b) the existing CBA provides for a reopener when EOs are issued or at the midterm. Once the contract expires or is reopened, we can unilaterally implement the government-wide rules at that time, but not before.

Under 5 USC section 7117, government-wide rules and regulations bar the negotiation of union proposals that conflict with them. The only limitation on the superiority of government-wide rules or regulations is found at 5 USC 7116(a)(7). That section makes it an unfair labor practice for an agency “to enforce any rule or regulation … which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed.” Therefore, a government-wide rule is not controlling if there is a conflicting provision of a CBA that was in effect before the date the rule was issued.

I’m trying not to be too aggressive with these things, but here’s my reasoning regarding effective dates of the mandates in the EOs should anyone ask:

  1. OPM and other agencies trying to interpret the EOs argue for maintaining the status quo until an opener occurs in the contract because the EOs are mere government-wide regulations. In addition, some rely on this language for support: “Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.”
  2. Two sentences later, the EO says:

(c)  Nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof.

(d)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

  1. 5 USC 7103(a)(14)(c) says that management does not need to bargain “to the extent such matters are specifically provided for by Federal statute.”

By case law, FLRA has equated an Executive Order with a law (e.g., a statute) when it comes to negotiability (NTEU & Army, above). It is ridiculous to the point of absurdity to think that a CBA could contain a provision that is inconsistent with law. For example, if Congress were to pass a law tomorrow that prohibited flexiplace, every flexiplace arrangement in the government, including those contained within a CBA, would become invalid immediately. It is inconceivable that the authority in a union contract could be superior to the authority of a federal law.

The two sentences quoted above give management the authority to conform to the law and say that the EO is to be implemented consistent with the law. The law says that executive orders are non-negotiable because they carry the weight of law. Now. They are not negotiable.

I’ve heard that some agency guidance argues that the new mandates contained within the EOs cannot be implemented now because of this language:

Sec. 9.  General Provisions.  (a)   Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.

Regarding the no-abrogation language, the general rule is that management’s decision not to be bound by a CBA provision in conflict with law does not constitute a repudiation of the parties’ agreement. See Office of the Adjutant Gen., Missouri NG and ACT Show-Me Air #93 and Army #94 Chapters, 58 FLRA 418 (2003). If an EO has the effect of law for bargaining purposes, we have a law. If there’s a controlling law, there’s no repudiation. If there’s no repudiation, there’s no abrogation.

Look. Here at FELTG, we’re not saying that this is the right answer. What we ARE saying is that this appears to us to be a legally defensible approach, that the mandatory portions of the EOs are effective immediately, just like the provisions of a new federal statute would be effective immediately, regardless of contrary language in a CBA.

I don’t know President Trump personally. I don’t work for him, and all I know is what I read in the papers. Perhaps I’m mistaken, but he seems to be the kind of person who wants things done when he says he wants them done. On May 25, he laid out some significant restrictions that he believed should be applied to labor relations in the federal government. If I worked for him, I would be doing everything I could to implement those mandates as fast as I could, using every legal approach I could implement with a straight face until someone official told me I was wrong. Of course, that’s just me, and I admit that I am a wimp and that I scare easily. Those who are willing to tell him “no” clearly have greater fortitude than do I. Wiley@FELTG.com

How Specific Does a Legitimate, Nondiscriminatory Reason Need to Be?

, ,

By Deborah Hopkins, July 18, 2018

One of the things we teach in just about all of our FELTG classes is the importance of documentation. Management in the federal government is a defensive business. Because employees can challenge almost anything a supervisor does in the workplace in some forum or other (think administrative grievance, union grievance, EEO complaint, MSPB appeal, Office of Special Counsel, Department of Labor), it is exceedingly important for supervisors to document why they are taking whatever action they’re taking – or not taking.

That’s easy to do in cases of performance or discipline and has become second nature to our FELTG-Certified Practitioners. But when you’re at hearing in 2023, will you really remember why you denied someone’s annual leave request last week? Probably not, unless you documented it when it happened, and have those notes to refer to down the road. That’s why we also strongly advise supervisors to make notes about more than just discipline or performance, because there are certain times when a faded memory fails to meet a legal threshold.

Let’s look at some cases of Intentional EEO Discrimination involving circumstantial evidence. While the events don’t occur in a ping-pong format, the general analysis is this:

  1. Complainant alleges he is treated unfairly in some way because of, or motivated by, his protected EEO category.
  • Examples: nonselection; denial of training; reassignment; low performance rating.
  1. Agency articulates a legitimate, nondiscriminatory reason about the allegation.
  • Supervisors: insert your documentation here.
  1.  Complainant demonstrates pretext. That means the complainant has to show:
  • The agency is lying, or
  • The agency is telling the truth but its action was motivated by discrimination.

Problems arise for agencies when the legitimate, nondiscriminatory reason is not specific. If times, dates, and details aren’t there, that vague response is generally not enough to overcome pretext.

Let’s say the complainant alleges she wasn’t promoted because of her religion. The selecting official, when questioned about why the selectee was chosen and the complainant was not, says, “I don’t remember specifically because it was a while ago, but I am sure I chose the selectee because she was the best qualified. Her interview was really good, and plus the complainant came somewhere pretty low on the score sheet.”

Sounds pretty common, but that selecting official’s statement alone is not specific enough to overcome that presumption of discrimination, so the complainant is probably going to win this case. Does this mean she was definitely discriminated against because of her religion? Nope, there may not even be any actual merit to the claim – but there will probably be a discrimination finding anyway.

As our good friend and FELTG instructor Ernie Hadley writes in his EEO Guide, the legitimate, nondiscriminatory reason offered by the agency “must do more than merely distinguish the particular facts of a situation.” In order to be considered sufficient, it must “articulate some meaningful distinction” which is related to a legitimate aim of the agency.

Below are a few cases to give you a better idea of what this looks like in the real world.

An applicant applied for a job at USPS and, though she was qualified, her application was not forwarded to the selecting official. She challenged this as discriminatory based on her gender. There were no notes, scores, or specific explanations of the scoring process in the agency record. A selection panel member was questioned about why the complainant was not considered, and his assertion that he “could only assume” she did not show she had the skills needed to work at a higher level was inadequate to overcome the allegation of discrimination. Hatcher-Capers v. USPS, EEOC No. 07A60008 (2006). Does this mean she was most definitely discriminated against because of her gender? No. Maybe she was; maybe she wasn’t. But the vague response from the selecting official was not enough not overcome her allegation, so she won her complaint.

In a very recent case, an IT Specialist alleged he was not selected for a supervisory position because of his sex and his age (69). The selecting official had since left the agency, but in an unsworn statement, said that he had chosen the 37-year-old female selectee based on merit. In considering the evidence, the EEOC said the agency record was “bereft” as to how the five candidates were chosen for interviews, nor about the real reasons why the selectee ultimately was chosen. Therefore, the agency did not provide a legitimate, nondiscriminatory reason for its actions. William G v. DLA, EEOC No. 0120160837 (February 14, 2018).

Now that you’ve seen what’s not enough of a legitimate, nondiscriminatory reason, let’s look at a case that shows what is enough.

A USPS employee was terminated after he got into a physical altercation with a supervisor. He alleged that he was removed because of his sex and because he had bipolar disorder. The agency provided a [specific] legitimate, nondiscriminatory reason for its removal action: The physical altercation with the supervisor violated its documented standards of conduct. Hlinka v. USPS, EEOC No. 0120064401 (2008). Easy peasy. That’s how you do it.

So you see, in most cases you’ll be just fine, as long as you have your documentation handy. If you don’t have a notebook now, go buy one and start tracking why you do what you do. As we say at FELTG, we hope you never need those notes, but you’ll be awfully glad you have them if you do. Hopkins@FELTG.com.

That’s My Story

, ,

By Dan Gephart, July 18, 2018

I’m married to a talented and successful children’s book author. She tells stories for a living. I’m proud of the work she does because she tells the stories of people from whom we don’t often hear. And her stories evoke empathy, which is sorely lacking in our world today.

But published authors aren’t the only ones who tell stories. We all have stories.

In these hyper-partisan times, opposing stories can quickly subsume a federal workplace in conflict.

The stories we carry don’t come in chapters or wrapped in fancy book covers. And they don’t end when you turn the last page. The stories are buried on top of each other deep within us and they shade the way we address everything and everyone. We think our stories are 100 percent truth. But the real truth is that even the most accurate stories we tell have a decent percentage that belongs on the fiction shelves.

Whether you are a supervisor, an HR professional, or an EEO practitioner, you need to understand your own stories, as you navigate those of your employees. We may not agree with the stories we hear, but we need to listen. That’s not to say that every story we hear needs to be validated and acted upon. But you don’t get to truth by shouting over someone.

I find the work of agency investigators to be fascinating. They are looking for answers in some of the most emotionally draining and intellectually challenging situations, whether they are investigating simple misconduct or harassment.

In one of our recent on-site trainings, Meghan Droste presented agency officials a thorough dive into the administrative investigation process. Reviewing the materials recently, the section on interviewing stood out. It was great information for investigators, but something that can benefit everyone. Meghan laid out clearly the difference between interrogations and interviews.

  • While interrogations aim for a confession, interviews seek to gather information.
  • An interrogation is structured. Interviews are free-flowing.
  • And here’s the big one: Interrogations are more speaking than listening. Meghan put the ratio at 95 talking to 5 percent listening. Interviews, on the other hand, are all about listening. The ratio is flipped the other way.

If we approach our discussions with our colleagues, peers, subordinates, and supervisors more as interviews, and less as interrogations, we might be able to better understand each other’s stories.

Anyway, that’s my story. And I’m sticking to it. Gephart@FELTG.com

Tips from the Other Side, Part 7

, ,

By Meghan Droste, July 18, 2018

At the time that I am writing this, I am in the midst of preparing to travel to Japan to teach a course on investigations. In between my packing lists and researching things to do and places to eat, I am also thinking a lot about investigations: What are the best ways to prepare for an investigation?  What are effective interview techniques? All kinds of details that I am looking forward to sharing with my class. As a complainant’s attorney, I spend some time thinking about investigations as well, particularly what information should have been included and what information is missing. Unfortunately, it is not unusual to find that key information is missing from a Report of Investigation.

I wrote about investigations recently in the context of witness interviews. In Mari R. v. U.S. Postal Service, EEOC App. No. 0120160377 (March 29, 2018), the Commission remanded the complaint back to the Agency for a supplemental investigation to include interviews of several witnesses.  While a supplemental investigation may be helpful, it generally is not the outcome I seek when I find the Agency has not done a thorough investigation. Like the Complainant in Ross H. v. U.S. Postal Service, EEOC App. No. 072018001 (May 17, 2018), I often ask for more severe sanctions, including default judgment.

The complaint in Ross H. involved three non-selections. The Agency’s Report of Investigation was unfortunately missing several key pieces of information. It failed to include “application materials and qualifications of the candidates selected for two positions at issue, failed to identify the candidate selected for a third position, and failed to include interview notes for all three positions.” The Complainant moved for sanctions and asked the administrative judge to award default judgment in his favor. In response, the Agency argued that the ROI did have relevant information including affidavits and vacancy announcements, the Complainant did not suffer any prejudice, and the parties could cure the deficiencies in discovery. In support of its argument, the Agency asserted that its failure to identify one of the selectees was not an issue because the Complainant knew who the selectee was. Unsurprisingly, the administrative judge did not find this persuasive and granted default judgment in favor of the Complainant. The Commission upheld the sanction, finding the Agency’s failure to complete a sufficient investigation was “egregious.”  It concluded that default judgment was appropriate “in the interest of protecting the integrity of the EEO process.”

Agency EEO offices should always review an ROI for sufficiency before sending it out.  The necessary documents and testimony will vary from case to case, so be sure to determine what is appropriate for each ROI. And of course, in a non-selection case, be sure to include the names and qualifications of the selectees.

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 me: Droste@FELTG.com

Why Do We Hide This Stuff?

, ,

By William Wiley, July 18, 2018

Here’s the beginning of a story that recently ran on the first page of the Style section of the Washington Post:

The Washington Post has dismissed a reporter for inadequately attributing material and closely parroting sentences from other publications in articles based on outside news sources. The reporter, [Jane Doe], 26, was let go last week before completing the newsroom’s mandatory nine-month probationary period for new employees. The Post’s editors found that she used without proper attribution reporting by at least a dozen other news organizations in articles she wrote since being hired in October.

The article goes on from here, describing the misconduct in detail as well as giving a bit of history about the (now former) employee’s resume.

Are you blown away by this? Isn’t it illegal or something to disclose the details of an individual’s termination? In fact, we’ve even Jane Doe-ed her real name here in our newsletter. We sure don’t want to reveal names in the federal government.

Well, maybe we should.

Most members of the public, as well as a lot of federal employees themselves, believe that a federal employee cannot be fired. Both Congress and the White House keep trying to make it easier to hold employees accountable for their performance and conduct by loosening the rules. We are on the verge of losing our civil service protections altogether if a couple of outlier Congressional bills become law, bills that would make the federal civil service “employment at will.”

In reality, hundreds of individuals are fired from federal agencies every month. Some are in unions while others do not have the extra protections that unions bargain for their members. Some are probationers, and some are tenured career employees. At least that’s what OPM statistics tell us, statistics that are consistent with MSPB’s annual report of appeals. But how would anyone know that if they were not an insider in the system, familiar with OPM and MSPB reports, or a reader of our beloved FELTG Newsletter?

You’re probably thinking that there must be a federal law that prohibits the disclosure of such information. Why would we make such a big deal out of it if there weren’t? Well, I’ve been looking for 40 years for a law or regulation that would prohibit the disclosure of the identity of and circumstances surrounding terminated civil servants, and I can’t find one. In fact, of the few cases that touch on the subject, the federal courts have come down on the side of mandating the disclosure of such information when it is requested under the Freedom of Information Act, at least for the more senior employees of an agency. When we’re talking about government employees, the balance between the individual’s rights to privacy, and the rights of the public to know about misconduct and unacceptable performance, the public’s need for information usually gets the judicial nod.

The Privacy Act often is referenced as the authority for not releasing information about employee malfeasance. However, that law allows for the release of information for a “routine use.” If OPM government-wide or an agency in its own Federal Register announcement would state that the release of discipline and conduct information by name was a routine use for collecting the record, that would seem to satisfy the legal requirements for privacy.

The salary and cash awards of federal employees are already a matter of public record, available on the web. There’s a relatively mundane need for the public to know that information. We can certainly make a good argument that knowing who has engaged in misconduct harming the government so much that they had to be fired serves a greater public good. Bar association discipline records are available for public review by the name of the offending attorney. Keeping the names of misbehaving federal employees secret enables that person to move on to other positions in which he can repeat his harmful ways. If a federal employee was fired for violent behavior, wouldn’t it serve a public good to make the public aware of who that person is? How about being fired for sexual harassment?

President Trump, through his recent Executive Order, has mandated the centralized collection of a lot of information about civil servants who are disciplined. For the sake of the public as well as for the sake of the federal employees who do good work and who obey the rules, perhaps it’s time that government agencies publicized their discipline and removal actions. If you’re a Big Coward, remove the names, but at least start to get the word out to the broad media that bad employees are fired from their government positions every day for good reasons. Maybe that will reduce the pressure that’s starting to build to do away with the idea of a protected civil service altogether. Wiley@FELTG.com

Use these Clickbait-Type HR Terms for Loads of Fun at Cocktail Parties

, ,

By Deborah Hopkins, July 18, 2018

Sometimes, after a long day, I find myself in a labyrinth of articles intended to draw in the reader with catchy titles or claims – clickbait. Every now and then (though sadly not often) I find something amusing, interesting, or valuable. Of course, given my profession I’m drawn to HR-and-legal-type articles, but I’m not immune to other topics – especially on a transcontinental flight when the WiFi is actually working.

It’s summertime and while there are plenty of important things happening every day, sometimes you just need a little mindless reading, so here for your reading pleasure is a list, in no particular order, of some trendy HR and legal terms that I’ve come across in recent months. You’ll see a loose definition, and beneath it the word or term used in a sentence.

Mainstream – a verb people are using that basically means “to offer for consideration.”

  • “I’ll mainstream this policy draft to the CHCO ASAP.”

Socialize – another trendy word for passing around a document in the workplace, so that important people see it. Often used in conjunction with mainstream.

  • “Let me socialize your resume around the front office to see if anyone wants to mainstream it.”

Upskill – a term for teaching an employee new workplace skills.

  • “Employees who participate in voluntary upskill seminars are more likely to be promoted.”

Retention interview – an interview with a current employee, who has no plans to leave the agency, about why she still works there. (Umm, what?)

  • “I’ll meet you for lunch after I get out of my retention interview with the Director.”

Deep dive background – a number of employers don’t just call references. No, they comb through social media to learn all they can about a potential hire, before scheduling an interview. This is a deep dive.

  • “Before we bring him in for an interview, we need to do a deep dive background on the candidate so there aren’t any surprises.”

Lifeline – a term that signifies the heart and soul of why your organization exists and who is most essential to its ability to achieve the agency mission.

  • “The GS-12 analysts are our lifeline; without them we can’t do anything.”

Mobility pyramid – an organizational model that identifies who is least likely, up to who is most likely, to be willing to be reassigned in the event of a reorganization.

  • “The 2018 mobility pyramid shows that 30% of our workforce is rooted to the headquarters region.”

People and Culture – I saw this one in an Australian HR publication, and it is how a particular company refers to its HR department. In fact, HR departments all over the world are getting rid of the Human Resources moniker in favor of cutting-edge labels like People Operations, Employee Experience, or Partner Resources.

  • “We have a job opening for Assistant Director of People and Culture.”

Delayering – though this looks like a word for slowing something down, it actually means getting rid of hierarchy.

  • “The agency head is considering delayering the federal contractor selection system.”

Induction – a word for what we used to call onboarding or orientation.

  • “The employee will arrive for induction Monday morning at 8:00.”

360-degree feedback – a process of performance appraisal where employees are rated not only by supervisors, but by coworkers, direct reports, and customers too.

  • “We’re running a pilot on 360-degree feedback to see if it improves the employee’s motivation to perform.”

People analytics – turning people into statistics in an attempt to solve grand-scale problems.

  • “As our organization grows, we need to run a predictive people analytics test to determine how many new hires to induct as part of the delayering process.”

And finally …

Contribution – a term I recently saw an agency start using, to replace the word performance. Yes, that’s right, instead of a Performance Plan, the employees are given Contribution Plans, and they are rated not on their Performance but on their Contribution to the agency.

  • “Please meet me at 2:00 Tuesday for your mid-year Contribution assessment feedback meeting.”

 

As the teenagers used to say in 2016, I can’t even.

My brain hurts. Whatever happened to words like apply, interview, and job offer? I guess that’s for greater minds than mine to determine.

And with that, go forth and enhance your vocabulary. Hopkins@FELTG.com