Archive for category: Newsletter

By William Wiley, January 24, 2018

I don’t care which side of your bread is buttered, you have to admit that our current system of oversight is a pretty poor way to set up protections for federal civil servants. Consider the following:

1. Congress so loves the civil servant and wants those individuals in federal employment to be protected from mistreatment by their managerial overlords that it has passed several laws to provide protections:
   • It is illegal for agency managers to mistreat employees because they have filed complaints alleging civil rights discrimination: 42 USC 2000e et seq.
   • It is illegal for agency managers to mistreat employees because they have filed grievances: 5 USC 2302(b)(9)(A).
   • It is illegal for agency managers to mistreat employees because they have engaged in union activity: 5 USC 7116(a)(1).

2. Congress, in its wisdom or folly, has established at least three institutions to make sure that the above laws are not broken:
   • The US Equal Employment Opportunity Commission has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a discrimination complaint.
   • The US Office of Special Counsel (in collaboration with the US Merit Systems Protection Board) has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a grievance.
   • The Federal Labor Relations Authority has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously engaged in union activity.

Let’s take a non-hypothetical employee who believes that his agency has mistreated him on 40 separate occasions.; e.g., Letters of Warning, failure to accommodate a disability, his supervisor laughed at him … the typical list of reprisal actions. He sees a big poster on the agency’s Official Bulletin Board advertising the rights employees have to file discrimination complaints, and so he does. He believes that he has been mistreated because he has previously filed complaints alleging civil rights discrimination.

As the discrimination process works, he gets to make his arguments to an investigator, then an EEOC judge, and then to the EEOC headquarters unit that oversees federal employee claims of reprisal. And after TEN YEARS, he gets his answer. Indeed, there was reprisal against him on the part of the agency. However, it was not because of his previously filing EEO complaints. Instead, the reprisal – according to EEOC – was because he:

1. Previously filed a bunch of grievances, and
2. Previously engaged in protected union activity.

No EEO discrimination here. Sean T. v. USPS, EEOC Appeal No. 0120150928 (December 5, 2017).

This individual (code named: “Sean T.” like some Irish rapper; “Hey, Big Sean T.! Hit me up with that ‘Irish Eyes are Smiling’ tune again. That thing’s dope!”) was employed by the U.S. Postal Service. Therefore, he did not have access to OSC or FLRA, as would a civil servant in another federal agency, but the result would have been the same if he did. EEOC does not have the authority to protect an employee who is mistreated by agency management, unless that mistreatment was motivated by the civil rights laws.

Poor Sean T. After a decade, he finally has an answer. He was not mistreated because he previously filed discrimination complaints. Oh, yes, my friend. He indeed was mistreated. But not because of civil rights discrimination. He just got himself into the wrong forum with his allegation, and thereby is back where he started in 2008 about the time Barack Obama first took the oath of the Presidency.

That seems like so long ago, doesn’t it.

Look. Here at FELTG, we’re not siding with Mr. Sean T. Frankly, he looks like someone who would be a pain to try to manage. Instead, we’re siding – as we always do – with the side of a fair and efficient government. This particular oversight scenario is neither fair nor efficient.

Somebody, please. Fix this. It’s not DACA, but it’s worth some amount of Congressional thought. Wiley@FELTG.com

By William Wiley, January 9, 2018

Every now and then, someone will ask one of us here at FELTG, “Hey, you guys claim to be so smart. What would you change in the system if it was up to you?” Obviously, anyone who would say this is unfamiliar with who we really are because “smart” is not an adjective that comes up on the short list, at least not before “a bit silly.”

That still leaves us with the question, what would we change if we had any influence at all as to how the government holds it employees accountable without rewriting the underlying law? Good question. And to start off the new year, here are some hopefully-good suggestions for those who actually do hold The Power. With the stroke of a pen – or a very few key strokes on a computer – here are some simple, yet game-changing, ideas:

OPM

1. Here’s what the Civil Service Reform Act says about firing bad performers. Agencies must remove employees from their position who have unacceptable performance “only after an opportunity to demonstrate acceptable performance.” 5 USC 4302(b)(6). Back in the very-early 80s, some bright mind at OPM decided that this language called for a “Performance Improvement Period.” That thought gave birth to regulations and case law calling for a structured PIP, complete with a formal notice of failure, the establishment of “firm benchmarks” of expectations during the PIP, and counseling and feedback for a month or more during the PIP.

Well, the law never required that, did it?

Unless identified as a trainee position, we hire only qualified people into government positions. In theory, we hire only the best qualified and provide them a performance plan immediately after hiring. Therefore, they should be able to hit the ground running once in place. After that, several weeks to a couple of months should be adequate to meet the statutory requirement for an “opportunity to demonstrate acceptable performance” without the need of a formal PIP. OPM should rewrite its instructions as follows, consistent with the Reform Act and doing away with the requirement for a PIP:

5 CFR 432.104 Addressing unacceptable performance

The agency is required to provide the employee a periodic performance plan. Once the plan is in place, the employee must be provided an opportunity to demonstrate acceptable performance under the plan with assistance from the agency as necessary, a period generally lasting 30 to 60 days.  Any time after this period, if the agency determines that the employee is performing unacceptably in at least one critical element, the agency must initiate steps immediately to remove the employee from the position by either reassignment, reduction in grade, or removal from service.

For those of you faint at heart who think this approach might be un-American or otherwise un-Constitutional, it is effectively the new approach allowed for at DVA under 5 USC 7701. Congress wouldn’t pass an un-American law, would it? If it’s good enough for our DVA friends, it’s good enough for the rest of the federal agencies.

Alternatively, if OPM chooses to continue to insist that a formal PIP period be employed prior to removing an unacceptable performer, 5 CFR 432.104 should be amended by adding the following sentence at the end:

The opportunity to demonstrate acceptable performance period generally shall not exceed 30 days and can be ended at any time the employee demonstrates the inability to perform acceptably during the period.

2. The Civil Service Reform Act creates an anomaly not easily explained. Once the agency provides an employee a notice of a proposed removal, the employee must be provided at least seven days to defend himself in a response. 5 USC 7513(b)(2). Once the employee exercises or waives that response right, the agency can effectuate the removal. However, for reasons unexplained in the law, the agency must continue to pay the employee for 30 days from the date of issuance of the notice even though it has already decided to fire him. 5 USC 7513(b)(1).

Unfortunately, a number of Federal managers do not understand the importance of making disciplinary decisions promptly. The flexibility in the law rarely makes for a more efficient accountable government. Therefore, OPM should modify its adverse action regulations as follows, appended to the end of the existing language:

5 CFR 752.404(c)(1) Procedures

Generally, agencies should provide an employee who has been issued a proposed action under this section a seven-day period to respond. Once the employee has either responded or waived the right to respond, the agency should make a decision on the proposal as soon as possible. In most cases, that decision should implemented as soon as the 30-day notice period has expired.

We have written separately and extensively that OPM should issue implementing regulations that make placement on Notice Leave automatic in cases of a proposed removal.   Additionally, we’ve argued that suspending employees is punitive and archaic, and should be avoided as being more helpful than harmful. No need to restate those suggestions here.

Agencies

Our experience here at FELTG is that within agencies, policies are often all over the map when it comes to implementing removals. If OPM does not make the above changes to government-wide policy, nothing prevents agency heads from doing essentially the same thing within agency policy:

• Establish opportunity periods (PIPs) to be 30 days in length, terminable early if the employee demonstrates unacceptable performance during the period.
• Mandate that decisions regarding unacceptable performance and discipline be made as soon as the notice time frames are completed.
• Limit notice periods to seven days, routinely enforce Notice Leave during the notice period, and rarely grant extensions of time.

There are some great minds at work these days developing possible changes to our civil service system. Hopefully, those ideas – perhaps along with these – will encourage deep thought and appropriate policy action. Wiley@FELTG.com