The End of Times

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By William Wiley, May 23, 2017

It seems as if I spend most of my waking hours in an airplane flying somewhere. Giving all the wait time, the no-computers time, and the just-plain-tired time involved in those odysseys, I have lots of time to think. Lately, I’ve been thinking about why we have civil service protections. As both Capitol Hill and the White House seem intent on modifying or doing away with some or all of those protections, I thought it might be helpful to get some of those 35,000 feet high thoughts out there, should anyone care to consider them.

Since 1912 in our great country, we’ve had laws that protect civil servants from arbitrary or just plain evil mistreatment. Prior to that date, a civil service job was purely patronage. You work for some guy to get elected, that guy will work for you to get a good government job. I’ve even seen ads in old newspapers from the late 1800s in which individuals were advertising that they would be willing to pay hard cash for a good government position. Once employed, you could be fired for any reason: politics, misconduct, or a bad haircut. It didn’t really matter.

Congress eventually decided it didn’t like this approach to government employment. Therefore, it passed the Lloyd-La Follette Act early in the last century, from that point forward guaranteeing that federal employees could be fired only for such cause as supported an efficient government. That’s where we got the rule requiring nexus between misconduct and a government function, and the right of federal employees to have bad hair (unless their haircut is somehow related to the work they perform as a government worker, of course).

The theory of our civil service embodied in the Lloyd-La Follette Act is this: our country needs a cadre of meritorious employees who work for the people, not necessarily for any political party. Therefore, federal workers need some sort of protection from mistreatment (e.g., firing) by the political appointees who are brought into government to temporarily run it during any particular administration. The trade-off for federal workers is that they can no longer get a government job just because of their political connections, their political activities are restricted by the Hatch Act, and they cannot buy jobs off of Craig’s list. Those of us who have taken the oath and become civil servants have accepted this as a fair deal.

With this theory in mind, consider a hypothetical scenario for a moment. Let’s say that you are an Evil Political Overlord (EPO) appointed by the President to run some part of a federal agency. Then, pretend that you are intent on infusing your own personal political agenda into your agency, regardless of the civil service protections and in contravention of the principle embedded in the Lloyd-La Follette Act. Which of the following groups of employees would you most want to be able to fire without having to explain yourself outside of your agency?

  1. Senior executives who run the place, or
  2. Rank and file employees who do the grunt work

Well, if you’re like most EPOs, I have to believe that you would want the unreviewable right to fire your top bosses, the senior executives who supervise everyone else and who tell them what to do. Why bother with trying to get the hundreds of janitors and the file clerks to do your evil bidding when you can simply get one of your subordinate executives to do it for you.

The Sith Emperor in Star Wars had to control only his senior executive Darth Vader to rule large parts of the Empire. Boy, oh, boy … did those guys have a tough performance appraisal program.

Now that we’ve played with our hypothetical, may I be among the first to welcome you to the bold new world of the federal civil service. Recently, eight well-meaning senators introduced a bill entitled the “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.” If enacted, that legislation would set aside a fundamental principle of our civil service, that federal employees who are fired have a basic right to have someone outside of their employing agency review the reasons for that firing, and determine if the employee has been treated fairly. For the last 40 years, that outside review has been conducted by the independent US Merit Systems Protection Board. Here at FELTG, we are among the first to criticize MSPB when we think they have missed something. At the same time, we are Number One in defending the concept of Board overview of removals and other serious discipline as a vital component of a protected core federal workforce. We think that MSPB is trying to do what Senator Robert La Follette wanted back in 1912 when he drafted legislation to de-politicize the federal civil service.

Ah, I can just hear all you smarty-pants practitioners out there, snickering among yourselves that Old Bill is once again crying wolf, stirring up concerns where concern is not warranted. This bill applies ONLY to Title 38 employees and ONLY to SES-level individuals at the Department of Veterans Affairs. Since that is a miniscule part of the two hundred million-plus federal workforce, why sound the alarm now? Congress would never take away the rights of other civil servants to challenge their dismissals outside of their employing agency.

Well, my friends, think of it this way. If you’re the Secretary of – say – Defense (or Homeland Security or Whatever), and you’re playing golf with your buddy who happens to be the Secretary of Veterans Affairs, how are you going to take it when he regales you with stories of how easy it is for him to fire executives while you’re over at DoD suffering through layers of MSPB appeals/discovery/hearings just to get rid of one of those little devils? Are you going to say, “Gee, Dave, I’m so happy for you. Clearly, it’s more important for you to have greater control of your executive service than it is for me. I couldn’t possibly go to my oversight committee and ask for a similar arrangement. Why, I almost look forward to the administrative hurdles awaiting me when I need to fire somebody.”

And if you are the Secretary of Veterans Affairs, how long will it take you to realize that if it’s good enough for your senior executives, why wouldn’t it be good enough for your other employees? Heck, just think of all the money you can save if you don’t have to subscribe to cyberFEDS© any more.

Here at FELTG, we are GS-zeros. We have no clout and we make no decisions for the government. If the Big Guys who do make big decisions decide that the civil service has had a good run and we should move on to agency-limited review rights, so be it. Maybe that’s a better way to run America than we have had the past hundred years or so. We just hope that the decision-makers understand fully the path they are opening up, and the slipperiness of taking away the external appeal rights of even a small group of career federal employees. If this legislation becomes law, the endtime for our civil service will be a step closer than it is today. To quote Lord Vader, “I sense something; a presence I have not felt since …” Perhaps he was sensing the end. Wiley@FELTG.com

How to Handle a Dangerous Employee

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By William Wiley, May 17, 2017

Last week, senior team members of our training group presented a webinar on the psychological aspects of employees with mental conditions and related supervisory obligations to accommodate a disability. It was one of the most widely received programs we’ve presented this year, so you can expect to see it again soon in some form, in case you missed it. When an employee with a mental condition poses a threat in the workplace, the information we provide in seminars like this can save your life.

One concern in situations like these from the employment law aspect is this:

What should a supervisor do when confronted with an employee who appears to be a danger to himself?

A classic example is the employee who says to his supervisor, “I’m so upset about how things are going around here that I’m thinking about committing suicide.” According to USA Today, there is a suicide every 13 minutes in the United States. Applying general suicide statistics to the federal workforce without tweaking for the specific demographic, we can expect about 850 federal employees to commit suicide this year. So when an employee says to her supervisor, “I’m thinking about killing myself,” there’s a real possibility she will.

Deb Hopkins and Shana Palmieri did a terrific job last week of explaining the supervisor’s options, given the psychological and reasonable accommodations aspects of a situation like this. We have an obligation to help the employee get help, while simultaneously recognizing the employee’s rights to reasonable accommodation and medical records privacy. But what do you do as a practical matter for the rest of the work day? Do you say something like, “Geez, Joe, I’m sorry you’re feeling that way. Maybe your mood will get better if you get back to your desk and work on the XYZ report that I need by the end of the day?”

I’m guessing not.

So, what do you do? Well, of the options available to you, the easiest one is to tell the employee to take the rest of the day off, to get some help and to perhaps relieve any immediate stressors. You can invite the employee to request sick or annual leave, or you can place the employee on administrative leave (if you’ve been to FELTG’s Absence and Medical Issues Week seminar, you know that you cannot place the employee on sick or annual leave without his permission). But what if the employee refuses to leave? Sadly, a number of people with mental issues do not realize that they have a psychological problem.

If you are familiar with our training programs here at FELTG, then you probably are aware that we claim to always know where the bottom line is legally when it comes to workplace dilemmas. For many years, the legal bottom-line in cases like this was not good. But now, thanks to the recent passage of the Administrative Leave Act of 2016, the answer is much better. Here’s what you do:

  1. If you can conclude that it is more likely than not that the employee is a danger to herself or to others in the workplace, you can immediately tell the employee that she is to leave the workplace and not return until she can produce medical evidence that she can perform her job safely.
    • Tell her that you will carry her in a regular pay status for 30 days to give her a chance to produce the evidence.
    • Also tell her that if she does not produce the evidence in 30 days, you will place her in a non-pay status until she does.
  2. For all you legal technicians out there, here’s what you’re doing as far as the law goes:
    • Proposing the employee’s Indefinite Suspension, see Gonzalez v. DHS, 2010 MSPB 132.
    • Placing the employee on Notice Leave, so that she gets paid during the notice period.
    • Giving the employee 30 days to respond to the proposal notice, 5 CFR 752.404(b)(1).
    • Implementing the Indefinite Suspension so that the individual is continued as an employee, but without pay until she produces medical evidence she can perform safely.

Once you initiate this approach, here are the possible outcomes and your response to each:

  1. The employee produces medical evidence he can do his job safely: You restore him to his position. It may have cost you up to 22 days of salary, but you may have saved a life. If you don’t think this a fair trade off, we don’t like you. Stop reading our newsletter.
  2. The employee produces medical evidence that he cannot do his job safely: You remove him for Medical Inability to Perform based on that evidence.
  3. The employee never responds: Six weeks after the proposed suspension, send the employee a Cook letter, explaining that if he does not produce evidence that he can do his job, you will propose his removal. Give him two more weeks. If nothing, then propose his removal based on Excessive Absence. If you don’t know the details of what all of this Cook-ing is about, you need to come to our next Absence, Leave Abuse and Medical Issues Week seminar, September 25-29, in Washington, DC.

We joke around a lot here at FELTG, as sometimes that’s the only way to get through the day. However, with this one we are deadly serious. When you have a dangerous employee in the workplace – dangerous to himself or to others – you need to be prepared to move quickly and with efficiency to do something about it. You owe it to the employee, to the coworkers and to yourself to know what to do. Wiley@FELTG.com

How to Handle Controverted Oral Response Statements

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By William Wiley, May 17, 2017

Questions, we get questions. This one came to us after a recent webinar we presented involving due process rights:

My question involves an issue that can arise after the reply and involves due process/ex parte communication issues.  

The FELTG newsletter had some excellent articles on this topic in 2014-2015.  The scenario I find particularly troubling arose in 2013 in the Kolenc MSPB case.  To simplify a bit, part of Kolenc’s charged misconduct was failure to pay a parking/traffic ticket. In his reply, Kolenc asserted the ticket was cancelled.  The Deciding Official (D.O.) then called the Police Department to verify Kolenc’s bald assertion and learned the ticket had not been cancelled.  The D.O. then indicated in his Final Decision that he determined the ticket had indeed not been cancelled and the lack of credibility Kolenc demonstrated in his bald assertion in his reply influenced his decision to proceed with removal.

My question is in this scenario what option does a D.O. have when the employee makes a bald assertion like this (i.e. does not include proof other than his assertion) that the ticket was actually cancelled? I understand the riskless scenario is for the D.O. to inform Kolenc in a “Ward Letter” what he found and give him 10 days to respond.  

How much risk, however, would the D.O. and the Agency assume if they had not called the Police Department but declined to accept the employee’s bald assertion by itself, concluding that Kolenc needed to do more to establish the cancellation than offer his bald assertion in a written reply?

Our FELTG response follows. This questioner already knew the less-dangerous answer, but like most of us, is trying to find a way to be more efficient:

Dear Participant-

Thanks for your question. It’s conceivable that the police made a mistake when checking the employee’s records. It’s possible the employee has evidence that the ticket was cancelled. That’s why due process requires that we notify employees of facts on which we are relying prior to making a decision on a proposed removal, to give them a chance to defend themselves. In my world, an extra five days of pay is well-worth removing this potential due process violation from the case when it goes up on appeal.

When informing the employee of the new information in situations like this, I like to say something like, “In your oral response to the proposed removal, you claimed that the traffic ticket issued to you had been cancelled. Further investigation revealed that the XYZ police department’s records show that the ticket was not cancelled; see attached. You have seven days to respond to this evidence that the ticket was not cancelled and to the fact that you potentially made a significant error in your statement to me in your oral response.” Now the employee is on notice that a) there is evidence that the ticket was not cancelled, and b) that the DO will consider the employee’s lack of truthfulness when making his decision.

The alternative is for the DO to weigh the employee’s unsupported statement that the ticket was cancelled against whatever evidence there is already in the record that it was not cancelled. Perhaps there is no evidence that the ticket was not cancelled. Whatever the evidentiary balance, the supervisor could have said – without contacting the police department to verify one way or the other – “In your oral response, you claim that the traffic ticket was cancelled. However, you presented no evidence supporting your statement. Therefore, I have not considered your unsupported self-serving claim further.”

This latter approach saves you five days of pay. And it has to be based on the premise that the DO has no independent evidence of the non-cancellation of the ticket. However, it runs the risk of a judge disagreeing with the DO as to the evidentiary weight to be given to the employee’s possibly-uncontroverted statement. Separately, there is a possibility that on review, some judge may conclude that the assertion of a claim such as this in a response to a proposed removal requires that the DO investigate the claim prior to making a decision, see Whitmore v. DoL, 680 F.3d 1353 (Fed. Cir. 2012).

Were I making the decision between these two approaches, I would pay the extra salary and notify the employee of the new information. To me, the extra pay is well worth avoiding the possibilities of reversal on appeal by a judge who disagrees with my decision not to investigate and notify, plus it gives me the bonus misconduct to base the removal on, that the employee lied in his oral response.

Due process violations are dangerous. I am scared to death of them.  I take no chances if there is a way I can avoid them. A new notice and response time will cost the agency, but that cost is a price I feel is worth the expense. Hope this helps. Wiley@FELTG.com

Probationer no More?

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By Deborah Hopkins and William Wiley, May 17, 2017

If you’ve read anything we’ve ever written in this Newsletter, then you probably know we get lots of questions from readers and we use this forum as a place to post our answers. Here’s a relatively quick one that some of you might find helpful.

Good Afternoon FELTG Team:

I’m hoping you can answer a question that I’m getting conflicting answers on. A Pathway Employee (hired under Excepted Service) finishes two years and converts to a competitive position with no break in service, into the same position and grade. Would you consider this employee as having served a probationary period and therefore now has full appeal rights, or would you consider him a probationary employee with limited appeal rights after the conversion to competitive service?

My case law research shows me that this employee is no longer probationary (limited appeal rights). What do you think?

And here’s our response:

Thanks for the email, Loyal Reader.

Without doing any research (we’d have to charge you for that!), our understanding is that employees in these sorts of positions serve a “trial” period.” Effectively the same thing as a “probationary period,” but for some reason, it has a different name.

Secondly, and this is the point that confuses so many people, is that employees get MSPB/adverse-action appeal rights TWO different ways:

  1. If they have completed a probationary period, OR
  2. If they have current continuous employment of at least one year in the competitive service or two years in the excepted service. Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999)

The employee in your situation satisfies the two years in the excepted service test. Therefore, it is immaterial whether he is placed into a “probationary period.” That’s why the better practice is NOT to play games with using a new probationary period. He got rights when he was converted.

Keep in mind that the “OR” above is a typo in the law and was always supposed to be an “AND.” In fact, that’s how OPM regs interpreted it until Van Wersch was issued. That’s why so many people get confused on this point.

Hope this helps!

Hopkins@FELTG.com

Call a Plumber!

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By William Wiley, May 17, 2017

Here’s how accountability works in the federal civil service. Bad employees get fired. They appeal to the US Merit Systems Protection Board. The Board assigns a judge to collect all the evidence, conduct a hearing, and rule on whether the employee stays fired or gets his job back. When that ruling is challenged, the Board members themselves review the judge’s initial decision, thereby becoming the final arbiters of who gets fired from government for poor performance or misconduct, and who gets reinstated with back pay and attorney fees.

MSPB’s headquarters workload has been relatively steady (save for the occasional Stupid Sequestration Furlough appeals). Every workday, the members receive five to six appeals challenging a judge’s decision. To stay even with this intake, each member must review the record evidence, consider a judge’s rationale, then vote to affirm or modify the initial decision in five to six cases each day. I worked at MSPB headquarters for nine years. Five to six decisions a day is a manageable workload for a Board member to accomplish.

There are three members’ seats on the Board. Each is designed to be occupied by a political appointee, nominated by the President and confirmed by the Senate, for a non-renewable term of up to seven years. Final Board decisions are by majority vote. Even when there is a vacancy at MSPB, the Board can still operate with two members. By accepted rule, two is a viable voting quorum of a three-member body such as is MSPB.

As of January 7, due to the then-Chairman’s premature resignation and another member’s term expiration, the Board has been reduced to a single member. Two seats remain vacant. MSPB cannot issue final decisions regarding the appeals of judges’ decisions with only one Presidential appointee member. It cannot affirm the judge, set aside the judge, or dismiss the appeals without any action at all. Some might compare a one-membered Board to a black hole in space, an entity in which once matter crosses the event horizon, it disappears forever. Others might prefer the analogy of a roach motel, where the guests check in, but they never check out. As for me, I’m most comfortable thinking of a non-function Board as the clog in the plumbing, not letting anything go out while backing up a smelly mess into the living room of federal employment.

Every day that the Board sits impotent, another five or so former-employees are added to the heap, denied resolution of their appeals. Perhaps they should be reinstated with back pay. Perhaps their removals should be affirmed so that they can either get on with their lives, or pursue even more challenges in federal court. The individual appellant suffers as well as do his family members.

The former employing agencies also are disadvantaged each day the Board is powerless. Back pay with interest continues to accumulate. Some agencies will not replace a fired employee until the Board appeal is finally resolved. Positions sit vacant or are filled on only a temporary basis until at least two Board members agree on what constitutes a proper outcome.

Compared to health care, tax reform, and FBI directors, this is the tiniest of government problems. Fortunately, it requires the tiniest of actions to fix it. The White House needs only to submit to the Senate a name of someone willing and competent to serve as an MSPB Board member. Go look in the mirror. If you’re a regular reader of the FELTG newsletter, you’re probably more qualified on Day One than were at least a couple of individuals who actually served as Board members in the past. You don’t need to be a lawyer. Heck, you don’t even need a college degree. Take your common sense, combine it with federal workplace experience, and if the President picks you, you can have your picture hung on the wall in MSPB’s front-office conference room right there along with the other 20 members who have served in history.

It breaks our little FELTG hearts that something so hurtful to the civil service could be fixed with something so easy to do. We understand that there are priorities in a new administration. We certainly defer to the greater minds at the higher pay grades when it comes to running the government. And at the same time, we hope that someone in a position to do something will see the service that will be done for America by clearing the pipes in the civil service accountability and oversight system, and cleaning up this mess before it gets so big that it cannot be easily undone.

To help us stay focused on this problem, every now and then in one of our periodic FELTG publications, we’ll print an update to the backlog situation using the graphic below.

Backlog Cases Sitting at MSPB due to Lack of another Member as of Today
440

When you see it, think of two things:

  1. This number would be zero if we had a quorum on the Board, and
  2. The poor soul who finally gets appointed to one of those vacant seats is going to need a helluva big in-basket.

Wiley@FELTG.com 

A Potentially Devastating Impending Change

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By William Wiley, May 9, 2017

Forever, it has been black letter law in the federal workplace that an employee has to do what his supervisor tells him to do. With exceedingly rare exception (involving safety, Constitutional rights, and illegality), if a supervisor tells an employee to do something, the employee has to do it. If he doesn’t, he can be disciplined for Insubordination, perhaps even be fired.

This concept is embodied in a term often heard in a unionized workplace, “Work now; grieve later.” If an employee is confronted with an order that she believes to be improper – perhaps the order requires her to forego a break that she believes she is entitled to under the collective bargaining agreement – the employee is supposed to obey the order, then challenge the order after the fact by filing a grievance. In that balanced approach, the supervisor still gets done what needs to be done, and the employee still gets redress to correct any harm that might have occurred because of the order if it is found to have been improper after the fact.

Think what it would be like otherwise. What if an employee could disobey an order he felt was wrong? The supervisor orders the employee to do something. If the employee believed that the order violated the union-management collective bargaining agreement or some other rule, the employee could refuse to obey the order without fear of discipline. Perhaps the order would have to be subjected to oversight in the grievance procedure, and once adjudicated as consistent with the CBA, the employee would then have to obey it. Can you imagine the disruption that this would cause in the federal workplace, if supervisory orders had to be adjudicated as proper before they could be enforced?

Add to this the reality that CBAs and regulations are subject to various interpretations, that one person’s honest belief in what the rule means is different from what another person believes in good faith the rule means. If a supervisor gives an order, in my experience the supervisor believes that it is a proper order. If the employee concludes that based on his own interpretation the order violates some policy, should we really delay obedience to the order until the disagreement is resolved by an arbitrator or a judge? Holy-moly. And the public thinks that the government is inefficient as it is. Just wait until they see all those civil servants waiting around until their boss’s orders are litigated as proper before they will be obeyed.

Well, buckle up. Congress is on a path to make this hellscape scenario a reality in the federal government. Recently, the House passed HR 657, the “Follow the Rules Act,” amending 5 USC 2302(b)(9). That legislation would make it illegal for an agency to discipline a disobedient employee who was insubordinate because the employee refused to obey an order that violated a “rule or regulation.”  Let’s think this change through for a minute, from the perspective of those of us with significant experience in the federal civil service:

  • The media buzz around the passage of this bill was that it would increase protections for whistleblowers. Wrong. Whistleblower rights are embedded in 2302(b)(8). This legislation would amend 2302(b)(9). If enacted, it will apply to EVERYONE, not just those federal employees who blow the whistle.
  • If an employee reads this amendment (if the Senate and the President make this bill into a law), she would be comfortable believing that she could refuse to obey an order that she believes violates a “rule or regulation.” Well, what if it turns out she is wrong? What if her honest belief about what the order meant was simply mistaken? If she is fired for insubordination, if on appeal her argument that the order violated a rule is not affirmed, she has effectively bet her job that her interpretation was correct at the moment she chose to be insubordinate. Why in the world would we want to entice federal employees into this high-risk gamble with their livelihood when there are other ways to protect them from abuse?
  • The amendment is silent about the definition of the words “rule” and “regulation.” As we have something called the “Code of Federal Regulations,” it’s relatively easy to recognize “regulation” as referring to that body of guidance. But what is a “rule” exactly? Fortunately, the word “rule” has been in law since 1978. It can be found in the paragraph immediately above (b)(9), the paragraph that defines a whistleblower as someone who, among other things, discloses a violation of “law, rule, or regulation.” MSPB recently defined the word “rule” for this purpose as “established or authoritative standards for conduct or behavior.” In one case, it found that a simple agency memorandum could constitute a rule. See Chavez v. DVA, 120 MSPR 285 (2013); see also Raiszadeh v. DHS, DC-0752-12-0648-I-2 (2015)(NP).
  • If the Board were to use that same interpretation of “rule” for the purpose of enforcing the HR 657 amendment, just think of all the potential that an employee has for believing that a supervisor’s order violates a “rule.” Double holy-moly.
  • Again, looking to whistleblower protection law for guidance about how to interpret the proposed amendment to (b)(9), an employee is protected as a whistleblower if he discloses a violation of “law, rule, or regulation” even if he is mistaken as to whether there actually has been a violation of law, rule, or regulation! All the whistleblower needs is a “good-faith belief” that there has been a violation. See Herman v. DoJ, 115 MSPR 386 (2011). What if we were to apply that same principle to cases that arise under the proposed amendment? Do we really want to allow civil servants to disobey supervisory orders that conform with law, rule, and regulation simply because the employee has a good-faith belief that the order is improper?

Here at FELTG, we try our best not to do too much of that “The sky is falling!” stuff, raising concerns where there really are none to be raised. We hesitate to sound the alarm too many time. But this is one that might be worth your attention. Know any Senators? If so, please let them know that this thing is coming and that it has repercussions that are not being recognized. Buddies with The Big Guy? Next time you’re on the links, maybe mention that this might be a good one to veto. Because if this bill becomes law, it will legitimize and protect every federal employee who thinks his supervisor is an idiot.

And I hear that there are a lot of those around. Wiley@FELTG.com

We Should Stop PIPing Bad Performers

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By William Wiley, April 25, 2017

Any of you readers who have been to any of our training sessions probably fell off of your bar stool when you read the title to this article. That’s because here at FELTG, we have sung the praises of Chapter 43 removals ever since we started presenting training sessions two decades ago. They are easy to do if you know what you’re doing and darned near bullet proof on appeal given the low standard of proof necessary to establish that removal is warranted.

Well, we are not abandoning that theme. We still believe that removals using the procedures found at 5 CFR 432 are preferable to starting a 5 CFR 752 misconduct action. What we are writing about today is the concept of a PIP. Perhaps it’s time for a change.

As we always do in our training, we begin with the law. Here’s what the statute has said since 1978 about firing poor performers from the civil service:

Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for … removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. 5 USC 4302(b).

A PIP as it is used in most every federal agency is an action that notifies the employee of prior unacceptable performance, then establishes a period into the future during which the employee has to perform acceptably or be fired. Observe that the law says nothing specific about a “performance improvement plan.” If you think about it, an agency could give an employee the statutory “opportunity to demonstrate acceptable performance” simply by giving the employee performance standards, an adequate amount of time subsequently to demonstrate whether she can do the job, then remove her if she failed to perform acceptably. The law does not say you can fire a poor performer “only after notice and a subsequent opportunity to demonstrate acceptable performance.” One could argue, if one were into statutory construction, that had Congress intended that there be notice, Congress would have called for notice in the law.

Unfortunately, that’s not how OPM interpreted the law back in the day. Given its statutory authority to issue implementing regulations, OPM came up with the requirement for notice to proceed an “improvement period” prior to an agency being allowed to fire the poor performer. That’s where we got the acronym “PIP.” The first set of regulations that OPM issued to interpret this part of the Civil Service Reform Act called for a formal “performance improvement period” to proceed any removal for failure to perform acceptably. Subsequently, OPM spruced up its regs a bit and changed (without explanation) the name of this period into a “performance improvement plan” thereby retaining the acronym PIP. Today, OPM’s regulations use no term that fits the acronym PIP, and instead revert to the original statutory language that refers to “a reasonable opportunity to demonstrate acceptable performance.” 5 CFR 432.104. Although the regulatory language now tracks the law, the concept of notice – arguably not mandated by the law – remains in effect.

Even with all these regulatory name changes, most supervisors we work with here at FELTG still use the old acronym “PIP.” It’s short, sounds nice, and is reminiscent of the backup singers for Gladys Knight. 😉 In fact, in our FELTG seminars, we sometimes exhort supervisors who have a non-performing employee to “PIP ‘em early, PIP ‘em often” just like they vote in Chicago. Well, maybe it’s time for a change.

The acronym PIP, implies an “improvement” opportunity. However, the law calls for a “demonstration” opportunity. Think how these implications are importantly different. If you were to say to me, “Demonstrate whether you can play the piano,” I would sit at a keyboard, move my fingers, and demonstrate very quickly that I cannot play anything at all. However, if you were to say to me, “Improve your ability to play the piano,” I would sit at a keyboard, do some initial finger moving, and then do more finger moving in an attempt to improve my playing ability. In other words, the fact that initially I cannot play the piano is irrelevant to whether I can improve my playing with time.

We don’t get to make the laws here at FELTG, but we do see it as our responsibility to try to understand the law so we can help those of you who attend our seminars do your jobs better and more efficiently. This statute does not mandate that an agency provide prior notice nor does it require an improvement period. It calls for an “opportunity to demonstrate” acceptable performance. We think that the terms in use today – “PIP” and even “opportunity period” – attach the wrong focus to the obligations that come into play when the civil service has a poor performer. The law seems clear to us that the requirement is on the employee to demonstrate acceptable performance with the agency providing assistance.

If it were up to us, we would wave our magic regulatory wand and decree that if indeed we are going to require notice and a subsequent evaluation period, we should drop the acronym “PIP” and instead used the term “Demonstration Period,” maybe “DP” for short. That approach places the emphasis where the Reform Act intended it to be; on the individual employee to show us whether he can perform the job he is being paid to perform.

Here at FELTG, we obviously are not too good at creating pronounceable acronyms (res ips). We have to use a little creative pronunciation to tell people orally who we are. So for the sake of being able to orally reference this new DP, I think it would be OK if we pronounced it similar to a PIP. When speaking we can call it a “DiP,” thereby allowing us to continue our admonishment to supervisors of poor performers, “DiP ‘em early; DiP ‘em often.”

And if you think the urban term “dipwad” seems appropriate, who are we to judge? Wiley@FELTG.com

Legal Analysis 101

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By William Wiley, April 19, 2017

All right all you brilliant legal-like minds out there. Work through this law with me. What do you think this means, and why did Congress say it?

5 U.S.C. 1214: (f) During any investigation initiated under this subchapter, no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation … without the approval of the Special Counsel.

If it’s of any help, the “subchapter” referenced in this language is Title 5 – Government Organization and Employees, Part II – Civil Service Functions and Responsibilities, Chapter 12 – Merit Systems Protection Board, Office of Special Counsel, and Employee Right of Action, Subchapter II – Office of Special Counsel. So, what we are talking about is that period of time that OSC has decided to come in to your agency and investigate the suspected reprisal against an alleged whistleblower by one or more of your management officials. OSC usually notifies you officially of its investigation when it has heard enough from the employee/complaint to conclude that maybe there is fire beneath the smoke of the claim. It contacts the agency, usually through the office of general counsel, when it is ready to demand documents and needs access to agency employees to depose. That’s when you know, often for the first time, that there is an OSC investigation afoot under this subchapter.

The statute prohibits an agency from disciplining “any employee” for “prohibited activity.” Well, the activity prohibited that OSC investigates is reprisal against a federal employee for whistleblowing. The “activities” that are prohibited are specifically enumerated at 5 USC 2302(a)(2)(A) and include most significant personnel actions such as disciplinary actions or performance ratings. The “prohibited” part refers to taking the action based on an improper motive, namely whistleblower reprisal. As for the “any employee” language, those who can be investigated for whistleblower reprisal are federal employees who have the “authority to take … personnel actions.” 5 USC 2302(b).

Wrap all this up and in lay terms, what the law says is that an agency must get OSC’s approval during an OSC investigation if it intends to discipline a management official for the misconduct of reprising against a whistleblower. This makes sense if you think about it. If an OSC investigation results in a conclusion that I have reprised against a whistleblower, OSC can file charges against me before MSPB and have the Board discipline me. However, during an investigation into whether I reprised against the whistleblower, if the agency were to discipline me for reprisal with – say – a one-day suspension, OSC would be precluded from subsequently disciplining me more seriously because I would have already been disciplined for the misconduct. No sir; no double jeopardy in our system of workplace justice, thank you very much Fifth Amendment (in analogy only, of course).

Did you notice the “…” above? For clarity, when quoting the law, I left out the phrase “or for any related activity.” That’s an awkward seemingly-unnecessary term, but it appears to me to refer again to the “any employee” with the authority to take a personnel action. Once more, we’re talking about needing OSC approval to discipline a management official.

Why all this detail? Because some agency officials have concluded that this language requires that it get approval from OSC prior to disciplining the employee who filed the reprisal complaint (for misconduct, not related to whistleblowing). In fact, even EEOC appears to believe that OSC approval is required prior to an agency disciplining an employee who has filed a whistleblower reprisal complaint. See Latricia P. v. USDA (Natural Resources Conservation Service), EEOC Appeal No. 0120152533 (February 16, 2017).

Where in the world might an agency as experienced as the Department of Agriculture get the idea that it needed OSC approval to discipline an employee who has filed a whistleblower reprisal complaint resulting in an investigation?  Well, I certainly do not have any specific inside information into this case, but in my experience, I have heard that incorrect interpretation of the law put forward by – are you ready? – OSC itself. Hey, if I’m OSC, my job is to protect whistleblowers from bad treatment. If you fire or otherwise discipline the whistleblower while I’m conducting an investigation, you’re going to mess up my investigation and interfere with my defense of that employee. If I can get you to believe that you need my approval to discipline a complainant, why would I not want you to believe that?

A number of you readers have had dealings with OSC in situations in which you have an intent during an investigation to discipline the complaint for misconduct or perhaps fire the complaint for poor performance. Even if you have not heard an OSC representative tell you affirmatively that you need OSC’s permission to go forward, have you ever heard an OSC representative say to you, “Hey, if you need to fire this complaint for reasons unrelated to whistleblowing, do what you need to do to hold him accountable. Our approval is required only if you’re going to discipline one of your managers for reprisal.”?

I am not worried about my email inbox becoming crammed with responses to this question.

OSC does not have the authority to require you to get its approval prior to disciplining a complainant during an investigation.  If it believes your discipline amounts to reprisal of some kind, it can file a motion for a stay of the discipline with MSPB. The Board can order you to hold off on disciplining the employee, but OSC cannot.

Know the law. Do not rely on OSC’s interpretation of it. They are many good people at OSC, some of which I have considered my friends for 35 years. Yet their job is different from your job. You need to run the government and hold misbehaving employees accountable; the Special Counsel does not. Wiley@FELTG.com

On a Related Note…

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By William Wiley, April 19, 2017

Over drinks and dinner the other night, our favorite time to pontificate on the fate of the civil service, Deb, Ernie Hadley, and I came up with the following fascinating facts:

  1. There are five Commissioners at EEOC. Each is appointed by the President, confirmed by the Senate, and serves a fixed term from which they essentially cannot be removed during the term. All five cannot be from the same political party.
  2. Currently, one of the five positions is vacant. The term of another expires in ten weeks. The term of yet another expires on July 1, next year. That means that within the next 15 months, President Trump will have the opportunity to name three new EEOC Commissioners, a voting majority.
  3. The President is free to select whomever he thinks would be a good Commissioner. If I were the President I would certainly want to appoint individuals as Commissioners who shared my view of civil rights law. For example, if I strongly felt that sexual orientation was a form of sex discrimination, as does the Seventh Circuit, then I would appoint individuals who hold the same view. On the other hand, if I felt that was not the case, as at least two other circuit courts have concluded, then I would appoint individuals with that view.
  4. EEOC has taken the position for many years that its only real controlling court is the US Supreme Court. In other words, it does not feel itself bound by the rulings of the individual circuit courts.
  5. As EEOC interprets the civil rights laws for the purpose of federal employee discrimination complaints, whatever it says about sexual orientation as a protected category applies to all federal agencies regardless of contrary rulings by the individual circuit courts.
  6. Until now, the Commission has held, as explained by Deryn above, that sexual orientation discrimination is a form of prohibited sex discrimination. However, nothing stops a bunch of new Commissioners from moving in the other direction.
  7. In fact, as far as I can tell, nothing requires the President to appoint a full complement of five Commissioners. He could appoint a Republican of his choosing, and if confirmed by the Senate, there would be a voting quorum even though the other two seats – seats that would have to be filled by members of another party – remain vacant.

Here at FELTG, we have our own strong opinions as to how this law should be interpreted. But none of us has been appointed to anything in a very long time, so our opinions are worth exactly what you are paying for them. The reality of our business, though, is that protections from sexual orientation discrimination in the federal civil service as a form of sex discrimination are in a precarious position.  Stay tuned to this space for any updates that come along. Wiley@FELTG.com

When to Use the New Notice Leave Law

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By William Wiley, April 19, 2017

Questions, we get wonderful questions. This one came after a recent webinar we presented in which we encouraged participants to get the employee out of the workplace once removal is proposed. First, our participant’s question:

The presenter, Mr. Wiley, made a sweeping statement yesterday that employees should be put on “notice” leave when issued a proposed removal.  The statement was very emphatic and left the impression that this should be a routine practice.  However, in researching the issue, the following is required to place employee on “notice” leave, essentially describing a situation where the employee is believed to pose a threat.  Can you forward a question to him to better explain how the routine use of “notice” leave is warranted in view of the strict criteria described in Administrative Leave Act of 2016. P.L. 114-328?

And here’s our always-helpful and enlightening (to us) FELTG response:

In response to the question about using Notice Leave, yes, in our opinion it should be a routine practice whenever an employee is put on notice that removal has been proposed. It is easy to reach the reasonable conclusion that an individual whose removal has been proposed is going to be under a lot of stress and be focused on his own well-being. Individuals in situations like that sometimes react in dangerous unexpected ways. News reports of workplace violence often state that the employee who was violent was previously seen as mild-mannered with no obvious psychological problems. According to the Bureau of Labor Statistics, about two people per workday are killed in our country by a co-worker.

Separately, it is reasonable to conclude that an individual who is confronted with the imminent loss of employment would consider ways to gain financially from his remaining days as a federal employee. Perhaps there is data in the agency’s computer system that, if downloaded, would be of value to criminals. Maybe there are office supplies and equipment that could be the basis for the start of self-employment, or simply for sale on the web or at a garage sale. I’ve even seen individuals who have been told that their removal is proposed suddenly suffer a job injury, thereby entitling them to workers’ compensation payments.

Finally, keep in mind that the proposing supervisor has said in the notice letter why the individual should no longer remain as a federal employee; e.g., there’s a loss of trust or he has failed his performance improvement plan. Keeping someone like that in the worksite doing his job after the supervisor has concluded that the employee can’t do his job makes no sense and might undermine some of the statements made in support of the removal penalty in the Douglas Factor analysis.

Once we grasp these disadvantages to allowing employees continued access to a federal workplace when their removal is proposed, it’s a straightforward manner to conclude that one or more of the criteria for enforcing Notice Leave has been met. At a minimum, we can categorically conclude in a removal action that keeping the individual in the workplace after his removal is proposed “jeopardizes the legitimate government interests” of maintaining a safe workplace, one of the four statutory criteria.

Separately, I consider the following:

  • The employee cannot directly challenge the placement on 30 days of Notice Leave. Why would I not do it?
  • Even if somehow after the fact a decision was made that the employee should not have been placed on Notice Leave, no harm – no foul. That finding, were it to occur, would not cause the removal to be set aside as it is not a harmful error. In fact, I can think of no remedy.
  • This isn’t some bureaucratic check-the-box issue. This can be a life and death situation. If I place the employee on Notice Leave and remove him from the workplace, I may have prevented some pretty bad things from happening. If I do not place the employee on Notice Leave, although it does not happen often, he just might kill someone.

I have absolutely no problem selecting the option that possibly could save a life. The law is worded to allow me to exercise my judgment to do that, and that’s what I would advise anyone in a proposed removal situation. To do otherwise would be short-sighted. And, deadly.

Hope this helps. Wiley@FELTG.com