Employment Lawyers Having Drinks

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By William Wiley, March 15, 2017

They say that one does not want to watch either laws or sausage being made. I might add to that list that’s it’s better not to watch employment lawyers having drinks.

A couple of weeks ago, I was having dinner with two of the best federal employment lawyers I have ever known. After the mandatory two-martini round of drinks (hey, we’re lawyers; they don’t call it a “bar association” for nothing), we found ourselves in an animated discussion that involved raised arms, exaggerated facial features, and loud voices. Clearly, those poor diners seated nearby must have thought us either to be engaged in something highly important or to be just flat out bat-poop crazy. No doubt they were distracted, if not completely put off, from their respective meals by our disruptive discussion.

And what was the topic that got us all fired up? Official Time for the Pursuit of EEO Complaints.

Here was the hypothetical scenario:

  1. As Deryn well described in the previous article, EEOC regulations require that an agency grant employees “a reasonable amount” of duty time to work on their EEO complaints.
  2. What if the employee has performed so poorly in the past that the supervisor has determined that the employee is working at the Unacceptable level, and has initiated a 30-day Performance Improvement Plan? As every experienced practitioner knows, 30-days is routinely accepted by MSPB as an adequate PIP length. At the end of the PIP if the employee has continued his unacceptable performance, the supervisor has no choice but to remove the employee from the position. 5 USC 4302(b)(6).
  3. Then, during the PIP, the employee files several extensive EEO complaints, complaints that would require many hours of on-duty official time to prepare.
  4. Question: Is the agency obligated to grant ANY official time given that the employee is on the cusp of being fired; e.g., can it declare that when applying EEOC’s regulations to the situation it is per se unreasonable to allow EEO-complaint official time for an employee who is on a PIP?

The good-government equities that would lead us to an answer to this hypothetical are balanced:

  • On one hand, we want civil servants to be free of civil rights discrimination in the federal workplace. In pursuit of that honorable objective, it makes sense that the government would allow work time for the employee to seek redress from perceived discriminatory acts.
  • On the other hand, we are taking strong hits from Congress and others charging that in the civil service we do a poor job of holding employees accountable for their performance, that we allow non-productive employees to linger on the roles for months and years beyond the time they should have been fired.

EEOC makes the rules relative to official time. As Deryn described in Virginia K., the Commission will consider the work needs of the agency when deciding how much official time is reasonable; “she was behind on sensitive work.” What we are missing is an EEOC decision as to whether there might be a situation in which zero official time is warranted due to the agency’s need for productivity in a particular situation. One or two of us at dinner concluded that, yes, there are work situations in which no official time need be granted by an agency, and during the pendency of a PIP is one of them. One or two others at dinner that night concluded just the opposite, that there are no situations in which EEOC would conclude that denying any official time was reasonable.

So what do you think? Keep in mind that in the private sector, employers are not obligated to provide work time for individuals to pursue discrimination complaints. They must do it on their own time. Also, keep in mind that there’s a movement afoot to try to run the government more like a private-sector business rather than like a bureaucracy. Perhaps that’s why Congress enacted legislation effective in December that severely limits an agency’s ability to place employees on an administrative leave status, without any exceptions for administrative leave for employees to pursue EEO complaints. And finally, when you look into the future trying to predict what will happen if this issue ever gets to EEOC, be sure to factor in that the decision will be made by individuals appointed by the new White House, not by the one that just left town.

So how did we resolve all of this at dinner? Well, we did what any good group of lawyers would have done: we ordered another round of drinks and moved onto other things to argue about. I wish you had been there with us.

By the way, here at FELTG, we’ve come up with two great alternatives as to what to do when you are confronted with an employee on a PIP who requests official time under EEOC’s regulations. If you’d like to know what those are, you’ll want to come to the next offering of our world-famous seminar Absence and Medical Issues Week, starting March 27 in Washington, DC. Since you couldn’t make it to our dinner, maybe you’ll be able to hook up with us there. Wiley@FELTG.com

We Need a Theory of Discipline in the Civil Service

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By William Wiley, March 7, 2017

A “theory” is a contemplative and rationalized type of thinking, based on observations, deductions, and conclusions. In other words, it’s a reasoned explanation of the way that things happen and is predictive about how they will happen in the future.

That’s exactly what we need in the world of federal employee accountability, and I think we should be embarrassed that we don’t have one already. Probably every reader of this newsletter is involved in some way in holding civil servants accountable for their misconduct. Yet we as a professional group have no official formal theory to guide us on the best approaches to take when disciplining an employee, an analysis of why we bother to discipline at all, and an integration of that contemplative type of thinking into the laws and regulations that limit how discipline will be administered in federal agencies.

And this is a big deal. For example, do we discipline someone to punish him for an act of misconduct, or do we discipline him to correct his behavior? Depending on your theory of discipline, your answers will be different:

  • Punitive: If the goal is to punish the employee, to take “an eye for an eye,” then we select a discipline option in rough value to the harm caused by the misconduct. Back from lunch 10 minutes late, thereby delaying a coworker’s lunch by 10 minutes? You get a reprimand. Do it again in six months, another reprimand (because the harm is the same each time). For each act of discipline, we weigh the harm, then try to find a punishment of about that value to be administered. Our criminal justice system in general selects punishments in this manner. Each act of criminal behavior stands relatively independent of the others that might have occurred previously in a particular criminal’s life.
  • Corrective: If the goal is to correct behavior, when selecting a penalty option, we would consider the harm caused by the current act of misconduct PLUS the history of prior instances of discipline and their success or failure in dissuading the employee from engaging in future misconduct. The workplace theory of progressive discipline is based on this approach. If two employees come back from lunch 30 minutes late, and one of them has previously been disciplined, then that employee might receive a stronger punishment than the employee who we’ve never had to correct before. In comparison, if the goal were to punish and seek retribution, then both would receive the same penalty regardless of previous attempts to correct behavior.

The reason this is so important is that MSPB seems to confuse these two approaches to a general theory of discipline when deciding appropriate penalties. In most cases, the Board appears to adhere to the corrective approach to discipline, and does so when analyzing the Douglas Factor penalty selection factors. If the employee has prior discipline, then the agency’s decision makers are empowered to administer more severe discipline than they would otherwise. But in other cases, the Board will mitigate a removal to a suspension even though the employee has previously been suspended; e.g., Suggs v. DVA, 2010 MSPB 99. The Board has even been known to mitigate a removal to a suspension of shorter duration than one administered previously. If the goal were to correct behavior, if a 10-day suspension did not do it, why on Earth would you think that a 5-day suspension would be a better subsequent action?

In a related manner, the Board recently has moved away from a theory of discipline founded firmly in progressive discipline. The old Civil Service Commission used to teach that the federal service has a three-strike discipline philosophy:

  • First offense: Reprimand
  • Second offense: Suspension
  • Third Offense: Removal

I remember my Commission instructor in 1977 explaining the three-strike approach by saying that a federal agency does not have to continue to employ an individual who does not respond to discipline; e.g., that responding to discipline by correcting one’s behavior is an important characteristic of being a civil servant.

In comparison, MSPB has moved over the past decade toward discounting prior discipline UNLESS the discipline was administered for misconduct similar to the current act of misconduct. Taken to the extreme, this approach would mean that an agency that has 50 charges in its table of penalties would be expected to try to correct the employee’s behavior RELATIVE TO EACH OF THE 50 CHARGES prior to removing him using progressive discipline. The absurdity of this outcome highlights the fallacy of this approach.

And finally, as we’ve whined about in this here newsletter before, some of the Board’s mitigations of removals to lesser punishments make no sense if our discipline theory is to correct behavior, and make perfect sense if our discipline theory is to punish behavior. We’ve seen cases in which MSPB mitigates a removal to a 30, 60, or 90-day suspension WITHOUT ANY CONSIDERATION ABOUT WHETHER A LONGER SUSPENSION IS MORE LIKELY TO CORRECT BEHAVIOR THAN A SHORTER SUSPENSION. In other cases, we’ve seen the Board mitigate removals to a demotion WITHOUT ANY CONSIDERATION ABOUT WHETHER THAT PENALTY WILL CORRECT BEHAVIOR OR EVEN IF THE AGENCY HAS LOWER-LEVEL WORK FOR THE DEMOTED EMPLOYEE TO DO. The mitigation of removals to demotions and long suspensions is based more on the Punitive theory of discipline than the Corrective theory of discipline.

With all due respect, MSPB should not be in the business of deciding the discipline theory for the federal service. Our leadership components should do that: OPM, senior agency managers, the President himself, perhaps. MSPB should apply the law and enforce that theory, but not make it up, certainly not on the fly and as inconsistently as it has been doing recently. A discipline theory should be borne of line management concerns, not legal concerns.

So what would be the components of a good theory of discipline? Well, aren’t you lucky. Here at FELTG, we have more opinions than the new administration has vacancies in senior positions. If you are at a policy level and are considering developing a theory of discipline for your agency or perhaps for the entire federal government (yes, I’m talking to you, new OPM Director, wherever you are), here are some essential elements of a good discipline policy:

  1. Discipline should be corrective, not punitive. If a discipline option does not have the potential to correct behavior, it should not be used.
  2. There are three (and only three) actions that should be used to correct bad behavior: Reprimands, Suspensions, and Removals. No more Letters of Caution, Admonishments, Counselings, Warnings, Expectations, or singing freaking Kumbaya to the employee to try to get her to do what you want her to do. She either does it or she gets disciplined for not doing it (or you choose to do nothing, if you’re that kind of supervisor).
  3. Suspensions should be avoided. There is no evidence that a suspension is an effective negative reinforcement that acts to dissuade future misconduct. In addition, the agency pays a price when it denies itself the services of the employee via a suspension. It either gets by without the contribution the employee would have made on the days of suspension, or it has to punish coworkers by requiring them to do the bad hombre’s work while he is home watching Fox & Friends. Remember, we’re trying to be corrective, not punitive.
  4. There should be three steps in progressive discipline: 1) Reprimand, 2) Final Reprimand, then 3) Removal if acts of misconduct continue to occur. And for the purposes of progressive discipline, it is immaterial that the prior discipline was for a different type of misconduct. We’re trying to get the employee to obey ALL of the agency’s rules, not just one at a time.
  5. If you have need for the employee’s services in a lower-graded position, you can offer that position to him as an alternative to being removed. If he declines the voluntary demotion, he gets removed. If he accepts the voluntary demotion, he waives any rights he might have to challenge the action.

Get organized. Take control. Develop a theory of discipline, put it into your official discipline policy statement, and go out there and hold employees accountable. Leave the singing of Kumbaya to the lovely and talented Joan Baez. Wiley@FELTG.com

Legal Writing Advice from My Spirit Animal

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By William Wiley, March 1, 2017

When we teach our FELTG legal writing seminars, we sometimes we get a little pushback from attendees who disagree with our “philosophy.” I can understand that. Many of our seminar attendees are very smart people, some educated in the finest law schools in our country. They learned how to write many years ago. They’ve been writing with a comfortable degree of success since then. Why should they change their approach just because some FELTG instructor says that there’s a better way?

Well, maybe it would help to know that our “philosophy” is shared by some gosh-darned important people, people who are typical consumers of legal writing.  I was cleaning out some old files over the weekend and ran across an old legal writing article from a law journal. One of the contributors to the article was a US Court of Appeals judge who just happens to make exactly the same points we do at FELTG when we teach legal writing. Great minds, same paths … it always refreshing to know that really smart people reach the same conclusion that you do.

Here are some pointers from the 30-year old article, pointers that will serve as refreshers for those readers who have attended any of the FELTG Legal Writing seminars:

  • A judge’s eye fatigue and irritability set in well before page 30 of a brief. Keep your writing short and focused and avoid unnecessary language.
  • The law is dynamic and can even be exciting. There is no reason that a legal brief should be dull. Strive for good literature as well as attention-grabbing focus. Make the judge sit up and say, “Hey, this is well-written. Maybe this lawyer actually has something worth my time to read.”
  • Do not use footnotes. Thank goodness these things have in large part moved out of our business. The only exception is the footnoting to case law precedence and other legal authority that FLRA uses for the style of its opinions (a practice MSPB would do well to adopt). If it’s worth saying at all, it’s worth saying in the body of the document.
  • State issues clearly and simply. As noted in the article, “A judge simply does not have the time to ferret out one bright idea buried in too long a sentence.” As we teach in our seminars, if you have written a sentence longer than 30 substantive words, you probably have written too much.
  • A bad brief will make every conceivable argument and even some that are not conceivable. Focus. Focus. Focus. If you have more than three issues in an appellate brief, you probably have too many issues. Arguments gain no increased credibility simply because they are repeated using different words.
  • Write for the 12th grade reader. It makes you be focused, knowledgeable about the issues, and the judge will send you a Valentine’s Day card in gratitude. Seriously. 12th If a judge has to consult a dictionary to understand your writings, you have failed.
  • Your case should be stated simply in the opening paragraph. Do not start out with a list of facts and details until you have provided a framework on which to hang them. A good opening sentence to a first paragraph will start with something like, “We are bringing this appeal because …”
  • Our judge-author also cringes whenever she hears or reads words such as “clearly,” “plainly,” or “obviously.” Every time a judge sees these words, she suspects that the issue is not really clear, plain, or obvious.
  • Citations that are weak or do not support the proposition being put forward are deadly. A judge will doubt everything else you have to say if your citation mischaracterizes a precedent or a factual finding.
  • Don’t be afraid to make a concession if the facts call for it. Judges find such honesty refreshing and will give greater weight to the rest of your argument.
  • Although emotional arguments to a jury might carry the day, you should avoid emotional arguments to a judge, e.g., “This poor innocent supervisor did not reprise against the self-centered, selfish, egotistical whistleblower. He was just doing his job; a job he was hired to do by the American people, to make our country great again.” Judges are swayed by logic, not emotion.

If you’re interested in the full article, you can find it in the September 1988 edition of the ABA Journal. I’m sure you have it lying around your office somewhere. And if you’re interested in the circuit court judge who contributed her suggestions to the article, she’s moved on to another job, a job in which some say she is receiving the best medical care available in America today: Justice Ruth Bader Ginsburg. Wiley@FELTG.com.

Taking a Leak

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By William Wiley, February 21, 2017

Here’s a recent hypothetical phone call between one of our top notch FELTG reporters and a senior career employee at a big federal agency.

FELTG:  So, how’s it going, Buddy?

Civil Servant: It stinks. My new political employee boss is a stupid, incompetent, smelly jerk. He’s improperly funneling a lot of huge federal contracts to his family members. And, he just told me that his brother has been hired as a spy at CIA. How you doing?

It’s getting to where every federal employee probably needs an employment lawyer on speed dial, and to use that phone number before he says anything to anybody. Here’s how this somewhat innocuous statement looks in consideration of federal employment law.

  1. “My new political employee boss is a stupid, incompetent, smelly jerk.” This statement constitutes actionable misconduct. Yes, our civil servant may have a Constitutional right to freedom of speech in general, but a senior agency official saying something like this to a reporter constitutes the charge of Disrespectful Conduct and warrants at a minimum a Reprimand. Federal employees are free to have these thoughts, but not free to express them to a reporter while sitting in a high-level federal position.
  2. “He’s improperly funneling a lot of federal contracts to his family members.” This statement is protected and may not be the basis for discipline. By definition, it constitutes “whistleblowing,” 5 USC 2302(b)(8). An agency may not discipline (e.g., reprise against) a federal employee who discloses violations of law, as this would.
  3. “And, he just told me that his brother has been hired as a spy at CIA.” This disclosure violates a law that prohibits the release of secret information. Therefore, it is not whistleblowing and warrants not just discipline, but also criminal prosecution.

One of the problems we have as a society is that a number of people who talk about federal employees who disclose information have not had the advantage of the legal training provided by the Federal Employment Law Training Group. They give speeches, interviews on television, and hold press conferences in which they lambaste employees who leak information about the internal goings-on in a federal agency. A number of those senior officials have initiated investigations into the leaks with the intent of firing the leak-ees.

Well, here’s the deal, Lucille. There are two kinds of leaks: those that align with the second statement above and those that align with the third. If a federal manager finds out that one of her underlings leaked information to a reporter that discloses a violation of law, gross mismanagement, gross waste of funds, a danger to public safety or health, or an abuse of authority, that employee is ABSOLUTELY PROTECTED by law from discipline, reassignment, a significant change in duties, or any other personnel action that would constitute whistleblower reprisal. However, if the disclosure itself as in the third statement above violates a law against making such disclosures (e.g. the disclosing of secret information), then the employee ABSOLUTELY can be disciplined, fired, and even charged with criminal misconduct.

So when you hear that someone is going after “leakers,” keep in mind that there are good leakers and there are bad leakers, according to the law. Good leakers are whistleblowers who cannot be disciplined, and bad leakers are civil servants who disclose information prohibited from disclosure by law and who can be fired.

Unfortunately, as we wrote about earlier this month, if you leak, you may not know which of the two categories you fall into until after you’ve mortgaged the house to defend yourself in a removal action. Please be careful out there. Wiley@FELTG.com

What About EEO Complaint-ing a Leave Restriction Letter?

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By Deborah Hopkins, February 15, 2017

At FELTG we love to read your emails and are delighted to answer (almost) any question you have as a result of reading our articles. Here’s one we got in response to the December 2016 FELTG Newsletter article, EEO Complaint-ing a PIP? No Dice.

Ms. Hopkins:

Thank you for an interesting article.  You quote the Commission, “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

So by extension, can an agency dismiss a complaint alleging discrimination in a leave-restriction letter?  How about all proposal notices informing the employee of impending discipline?  These are “preliminary steps,” for sure, and “without further action.”  The employee may well face discipline for violating the LR requirements or for the misconduct identified in the proposal notice, but per se, neither requires “further action.”

Why did the Commission single out only PIP notices?

And our FELTG response:

Dear FELTG Reader:

Thanks for the email. Why did the Commission single out only PIP notices by name? Your guess is as good as ours about the “why,” but here’s what we do know:

Under 29 CFR § 1614.107(a)(5), an Agency may dismiss an EEO claim that alleges a proposal to take a personnel action or other preliminary step to taking a personnel action. The only exception is the situation in which a non-appealable matter is a proposed action, the agency proceeds with the action and that action becomes final, in which case the proposal is said to “merge” with the final action. Wilson v. Dept. of Veterans Affairs, EEOC Appeal No. 0120122103 (Sept. 10, 2012). Keep in mind, though, these preliminary steps can still go in to evidence in a hostile work environment claim, and/or a reprisal claim.

Regarding the LRL, from a read of the cases it seems that placing an employee on a LRL could be considered an adverse action (under EEOC’s definition which is broader than MSPB’s), if placement on the LRL was motivated by discrimination. So yes, the LRL could provide the grounds for an acceptable complaint. See Brand v. Food Safety Inspection Service, EEOC Appeal No. 0120113592 (June 5, 2013).

Hope this helps. Hopkins@FELTG.com

When You Can Say “No!” to the President

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By William Wiley, February 15, 2017

Recently, the Washington Post asked civil servant readers when they would be willing to refuse to comply with policy directives coming out of our new Administration. Hopefully, you FELTG-ers know that the answer to this question is more legal than philosophical.

The basic rule in government is that an employee must do what his supervisor tells him to do. As President Trump is the chief executive of the executive branch, if you are a federal government employee, he is in your supervisory chain of command. Therefore, if he directly or through one of his Trumpette underlings tells you to do something (5 USC 301), you are obligated to do it or open to being found to be insubordinate.

However, like many rules in life, there are exceptions. These excuses for not obeying a supervisory order have developed over the years through MSPB case law:

  1. Unsafe. A number of federal employees perform work every day that a lay person might find to be unsafe; e.g., defusing some of those spent munitions that can be found at various military bases around the country. However, a civil servant is not guilty of insubordination if she refuses to obey an order that would put her in an unreasonably unsafe situation, given the nature of her job.
  2. Illegal. An employee does not have to obey an order that is illegal in itself. For example, if an employee is ordered to forego a Constitutional right (e.g., the Constitutional right to privacy surfaced in one or two cases), he can refuse it. Or, to undergo a psychiatric exam or to produce medical documentation that is not authorized by law.
  3. Requires an Illegal Response. In this case, closely related to the former, even if the order itself is not illegal, a federal employee does not have to obey a policy directive that would require her to violate a law to comply with the order. For example, a law enforcement officer could refuse to obey an order that requires her to treat members of one race more harshly than members of another race.

Although these exceptions are relatively well-established in case law, here’s the challenge:

If you are ordered to implement a supervisory order that you believe falls into one of these three categories and you choose to disobey that order, you are betting your job that you are correct.

Let’s say, hypothetically speaking, of course, that you as a federal employee are directed to detain members of a certain group of individuals who are attempting to enter the United States. If you believe that order would require you to violate the Constitutional rights of those individuals, you cannot be required to obey that order as you would be violating a law if you were to do so. Unfortunately, the only way you can establish that you do not have to obey that order is to disobey it, get fired for insubordination, and then on appeal, convince some judge that you were correct as to the un-Constitutional nature of the order. If you are found to be correct, you get back pay and your job back. If you are mistaken, if the order did not violate the Constitution, you stay fired.

This is a tremendously difficult situation. Few of us, this writer included, are qualified to finesse the fine points of Constitutional law out of a situation in real time with the boss yelling, “The President said do it; do it!” Few can stand the prospect of no income for several months while the subsequent removal case gets passed on judicially.

But there really is no alternative. If we were to grant federal employees the right to refuse to obey orders simply because they “believed” them to be illegal, then chaos would rein. Civil servants across America could find the most straightforward orders to be illegal, then keep their jobs even if eventually the orders were found to be perfectly legal.

“Bill, lunch is 30 minutes.”

“Sorry, boss. That’s unsafe as I need at least two hours to digest my meal. Plus, I think I read about some kind of law several years ago that says I get two paid hours for lunch because I am over 40 years old. Or, something like that.”

Bottom Line: if you are a career civil servant (not a political appointee as was the recently-former Acting Attorney General) and you choose to refuse to obey a new policy directive, be aware of the potential risks and consequences. Being right in the eyes of your god doesn’t necessarily put food on the table. Wiley@FELTG.com

Don’t Be Suspicious: Remember the Reasonable Suspicion Standard

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By Deryn Sumner, February 15, 2017

Federal employees have a very short statute of limitations to initiate EEO contact: the employee must make contact with an EEO counselor within 45 days from the date of the act thought to be discriminatory.

Luckily there are exceptions that prevent my job from being farmed out to robots.  One of those exceptions occurs when the employee forms a “reasonable suspicion” of discrimination after the 45 day window has elapsed.  Yes, the actual incident occurred past the 45 day timeframe, but the employee did not reasonably suspect that discrimination was afoot until afterwards.  Sometimes, when reviewing whether to accept or dismiss complaints for investigation, EEO specialists may not properly consider whether there’s a basis to extend the deadline to make EEO contact.

The Commission recently addressed such an instance in Leisa C. v. Department of Veterans Affairs, EEOC  No. 0120170391 (January 27, 2017).  There, the complainant made EEO contact on May 2, 2016 alleging that her non-selection for a position as a Nurse Practitioner was motivated by her age and participation in prior EEO activity.  The agency dismissed the formal complaint, noting that complainant learned of her non-selection on November 30, 2015 when she received an email informing her of the non-selection and thus her May 2, 2016 contact was untimely.

The complainant appealed and argued that although she knew of the non-selection back in November 2015, she only suspected discrimination when she learned the identity of the selectee in April 2016 after requesting, and not receiving an explanation for her non-selection several times.  Further, the complainant argued that she only formed a reasonable suspicion of retaliation “after hearing an Agency representative’s remarks in the context of mediation on June 28, 2016.”

The Commission determined that dismissal of the formal complaint was inappropriate because the agency delayed in providing the complainant an explanation for 4.5 months and she did not reasonably suspect discrimination until after receiving the explanation.

A word of caution to the complainant: if the claim of retaliation is based on representations made during mediation, you’re most likely out of luck getting that admitted as evidence.  But at least you can proceed with your case now.

And I will give credit where it is due.  Assuming the dates in the decision are correct, the EEOC addressed and remanded this complaint for processing relatively quickly.  The agency issued a final decision dismissing the complaint on September 22, 2016, and the Commission considered an appeal and issued a decision just about four months later, on January 27, 2017.  Sumner@FELTG.com

Is Performance Recognition Necessary or Beneficial?

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By Barbara Haga, February 15, 2017

I am going to jump out on a limb here and suggest that recognition tied to performance appraisals is at best benign and not achieving what it is intended to do, and possibly a detriment to performance management in Federal agencies.  For this piece, I am talking about cash awards and Quality Step Increases (QSIs). I would ask each reader to reflect on these questions.  Have you ever changed the amount of effort you put into your work or the techniques you used to complete your work based on the hope of getting some type of performance recognition?  If you got an award, was there a spike in your performance because you were pleased to be recognized or grateful for the extra money?  Did you do something extra beyond what you were normally going to do because you were recognized?  Did that spike in your performance last?

Intrinsic and Extrinsic Motivation

Taking a hugely oversimplified view of what motivates people, I would define intrinsic and extrinsic motivation for employees as follows.   Intrinsic motivation is what comes from inside – how you feel about the work, how it aligns with your values, whether it achieves an end you believe is worthwhile, etc.  Extrinsic motivation is external, in this case largely coming from your employer or possibly your peers.  These things encourage you to achieve in order to be rewarded or to avoid a negative consequence.  It could be a cash award, recognition in front of your peers, a promotion, etc.

I think many of us who work in the employee relations business do it because we believe that what we are doing is important and that the organization as a whole is better for it, if we do our jobs well.  In my experience, I have found that most HR practitioners in this line of work are more motivated by the intrinsic rather than the extrinsic factors.

I have been asked many times about why NASA ranks so highly in surveys like the Best Places to Work.  I believe it is because of intrinsic motivation.  Employees in the science and engineering disciplines grew up wanting to do this kind of work, wanting to be part of NASA.  In many areas, they are working on cutting edge science and making contributions that change the world.  You can’t buy that kind of motivation – it is intrinsic. It is also contagious.  Even the folks in contracting and budget seem to align themselves very easily with that view. Other agencies want to copy what NASA does to raise their scores on those surveys.  I don’t think it is what NASA does but rather who NASA employs.  I would suspect that if you looked at places like NIH, the CDC, and the EPA you would find a similar level of intrinsic motivation.  I am not sure that an agency can accomplish with external motivators what the employee doesn’t already bring with them.

Are Performance Awards Effective Extrinsic Motivators

Here’s a scary thought.  Should an agency really want to buy a person’s best performance?  If you are a manager, is that the person you want?  Or, do you want the person who sees the work as a challenge or that the goal is something valuable to the organization?  Would you feel more comfortable with the one who takes the assignment because it is important and will ensure that management’s interests are protected or an employee who says, “Yes, I’ll volunteer to do that training session, or I’ll take that grievance that covers fifty individual employees, or I’ll put together the template for adverse action letters on that charge we’ve had issues defending – if you pay me a little extra”?

I am sad to say that I don’t think performance awards are effective motivators.  First of all, in some organizations the awards are virtually automatic and everyone rated Fully Successful or higher gets one.  So, an employee comes to work and does what is expected and is rewarded.  I have worked in some places where the question wasn’t whether recognition would be granted, since essentially everyone got something, but rather when the payments were going to be processed.  There really wasn’t a question whether an employee would get one; people were already planning on the payments.

Because some unions have negotiated awards and/or award amounts, they have essentially become almost an entitlement.  I remember reading at the time of the 2013 furloughs that the IRS wanted to eliminate award payments in order to reduce the number of furlough days, but the union wouldn’t agree to eliminate them.  NTEU Chapter 67 (http://www.nteu67.org/) has a post on their website dated 11/22/2016 that echoes that thinking which is apparently still alive and well.  It says, “While you were working hard, NTEU was fighting hard to make sure you received your performance award.  In this tough budget environment, the IRS tried to cut the awards program, but we fought successfully to keep it.”  So, in the union’s view it is a good answer that in order to deal with budget constraints, it isn’t an option to reduce or eliminate award payments?

Secondly, we have that fundamental problem with what the employee must do to achieve one.  Is there a clear explanation of what is expected at various levels of performance in order to be recognized?  Or, are managers paraphrasing the famous definition of pornography and telling employees, “I can’t define what it takes to be Outstanding or Superior, but I’ll know it when I see it.” How are award decisions made in such an organization?  Is it favoritism as sometimes employees suggest, or is it the “halo” effect – those who have been viewed as achieving significant results in the past are always viewed that way?

Now, back to the questions I posed at the beginning.  How many of you were inspired to reach new levels of performance by a performance award you’ve received?  Is your organization more affective in meeting agency goals because you have an effective performance recognition program?  What I have observed in many organizations is that it may be a nice “thank you” but it is not an effective extrinsic motivator.

More on this topic next time. Haga@FELTG.com

[Editor’s Note: As the FELTG staff psychologist, I applauded Barbara’s common sense conclusions and add that they are routinely backed up by the scientists who study motivation. If you read the literature on awards as motivators, you find three bottom lines:

  • Annual awards programs such as those found routinely in the federal government have never (as in “not ever”) been proven to motivate increased performance.
  • In contrast, there is decent evidence that piecemeal awards (sometimes referred to as “performance contingency reward systems” by those trying to sound impressive) do indeed act to motive increased production. For example, workers who dig ditches who are paid by the foot as compared to being paid by the hour dig longer trenches.
  • However, piecemeal awards DO NOT seem to motivate increased quality or creativity. Also, individuals who have been given piecemeal awards for some period of time, and then who are denied future piecemeal awards, reduce their production levels below those employees who never received piecemeal awards.

Whether we like it or not, awarding federal employees to improve the quality of their work is not supported by science. And, it’s expensive.]

So, the Union Wants a Bunch of Information?

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By William Wiley, February 15, 2017

Questions, we get questions. Not a lot of questions are about union rights and corresponding management obligations, and this one is a good one:

From an inquiring mind among the FELTG newsletter readership:

Dear FELTG brilliant people. Here’s an LR Hypothetical for you:

The union makes an information request for certain emails from a recent former employee. The union says that it needs the emails because it needs to find out whether to file a grievance about the former employee putting a current bargaining unit employee in a reprisal environment.  The emails allegedly contain derogatory opinions expressed by the former employee, about the current employee, to the current employee’s clients.  Management says it was aware of the emails, and that it would release the emails if it still had them. However, the only component of the agency with access to the emails is the Information Technology staff, and the attorneys advising IT act like the emails are super-secret. Before IT will give management access to the emails so that management can respond to the union, the IT staff and its advisors want the union to demonstrate a “particularized need” for the information. How would you rule about the establishment of a particularized need?

Thanks, FELTG!

And now our FELTG fantastic response:

Dear Desperate Reader:

Thanks for your hypothetical question. As usual, we start with the law:

5 USC Section 7114:

(b)       The duty of an agency and a union to negotiate in good faith under subsection (a) of this section shall include the obligation —

…

(4)       in the case of an agency, to furnish to the union involved, or its authorized representative, upon request and, to the extent not prohibited by law, data –

  • Which is normally maintained by the agency in the regular course of business. It is management’s burden to establish that the material is not normally maintained or that its production would be unreasonably burdensome.

If you don’t have access to the emails, the information is not “normally maintained.” Therefore, you don’t have to provide it. See Navy and AFGE, 26 FLRA 324 (1987) (If the data or information does not exist, it need not be produced, but management should inform the union of that fact).

However, if the data exists anywhere within the agency (e.g., the bowels of IT), then you must cough it up if there is a particularized need. A union demonstrates a particularized need, in general, if it tells the agency:

  • Why it wants the information, and
  • What it intends to do with the information.

And the information is “within the scope of collective bargaining”:

  • Contract administration
  • Grievance and ULP processing
  • Employee representation

FAA, 55 FLRA 254 (1999)

The union must justify a request as to:

  • Geography
  • Time frame (e.g., “for the past 4 years”)

U.S. Customs, New Orleans, 53 FLRA 789 (1997)

In your case, the union has said that it wants the emails to consider whether to file a grievance relative to a particular employee whose rights might have been violated in a particular way. Can’t get much more particular than that.

If you don’t produce the emails, I’d say you have yourself a nice little ULP. But what do we know? If you deny the union’s request and they file a ULP, by the time it works its way through the system, Congress may have outlawed unions in federal agencies anyway.

Hope this helps. Take care- Wiley@FELTG.com

Commissioner Lipnic Named Acting Chair of EEOC

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By Deryn Sumner, February 15, 2017

As FELTG has kept you all apprised, the MSPB currently lacks a quorum, which means that it can’t actually issue any decisions on pending petitions for review.  Luckily the halls of the EEOC are not so empty.  The President appointed EEOC Commissioner Victoria A. Lipnic to serve as the Acting Chair of the EEOC on January 25, 2017.  Chair Lipnic has been a Commissioner with the EEOC since 2010 and is serving her second term which ends on July 1, 2020.

Prior to joining the Commission, Chair Lipnic worked as the U.S. Assistant Secretary of Labor for Employment Standards, as well as a committee staffer for the U.S. House of Representative’s Committee on Education and the Workforce.  She previously worked for the Washington, D.C. law office of Seyfarth Shaw LLP, as well as in-house counsel working on U.S. Postal Service cases.

The other currently-appointed Commissioners include Chai Feldblum, who has served as a Commissioner since 2010, Jenny Yang, who served as the Chair of the EEOC from September 1, 2014 through January 22, 2017, and Charlotte Burrows, who has been a Commissioner since December 3, 2014.  There is one vacancy on the Commission, and no one is currently serving as the General Counsel.

Presidents appoint the commissioners, who must be confirmed by the Senate to serve.  No more than three commissioners can be members of the same political party.  Chair Lipnic, unsurprisingly, served as a Republican Commissioner prior to her appointment as the Chair.

Notably, Chair Lipnic served as co-chair of the Select Task Force on the Study of Harassment in the Workforce, which I talked about a few months ago, along with Commissioner Feldblum.  According to a few pieces I read about her appointment, for which I won’t provide links, lest I be caught unaware perpetuating “fake news,” Chair Lipnic is expected to focus on age discrimination claims, equal pay act claims, and ways by which employers can create more jobs.  Sumner@FELTG.com