The State of the Civil Service: 2023 Edition

By Deborah J. Hopkins, January 17, 2023

Happy new year, FELTG Nation! The previous 12 months have included several milestones and significant changes in the Federal civil service. So, I’m once again using the month of January to share some highlights about exactly where things stand in the world of Federal employment law.

MSPB

I can’t imagine a single FELTG reader doesn’t know that after a 5+-year hiatus, we again have a fully functioning Merit Systems Protection Board. The Acting Chair is Cathy Harris (the Senate still has not confirmed her as Chair, but functionally she is still in charge). The two other members are Ray Limon and Tristan Leavitt.

In 2022, the Board members inherited a backlog of more than 3,600 cases. At latest count, somewhere around 700-800 decisions had been issued, 46 precedential and the rest non-precedential, while new Petitions for Review (PFRs) continue to be filed. So, the number of PFRs awaiting Board adjudication remains well above 3,000.

Two of the most significant new decisions include:

• Singh v. USPS, 2022 MSPB 15 (May 31, 2022), which clarified who is a comparator for the purposes of Douglas factor 6, and
• Lee v. VA, 2022 MSPB 11 (May 12, 2022), which clarified requirements for demonstrating unacceptable performance before a PIP (as explained in the March 2021 Federal Circuit decision Santos v. NASA).

The Board is once again able to conduct research. It has identified several topics on its 2022-2026 agenda, including Aligning Workplace Flexibilities with the Future of Work, Correcting Employee Performance and Conduct, and Understanding the Roles of Teams and Team Leaders. We can’t wait to see what they learn after a half-decade research hiatus.

For a case law update on the most consequential decisions over the past few months, join us Feb. 14 for Back on Board: Keeping Up with the New MSPB. For a full class on all things Board-related, register for MSPB Law Week, which will be held March 27 – 31.

EEOC

The Equal Employment Opportunity Commission, which has jurisdiction inside and outside the Federal sector, continues to promote President Biden’s Diversity, Equity, Inclusion and Accessibility (DEIA) agenda. Areas of focus include raising awareness about the harassment, discrimination, and violence against transgender people, updates to COVID-19 issues, changes in Reasonable Accommodations in a post-COVID world, and much more.

To help promote the EEOC’s mission, FELTG is hosting a 32-hour EEO Counselor training later this month and EEOC Law Week in March. And be sure to check out Dan Gephart’s recent interview with EEOC Chief AJ Regina Stephens about the agency’s priorities in 2023, her thoughts on EEOC-ordered training, and more.

FLRA

The Federal Labor Relations Authority has gone from a full complement of three members down to a quorum of two in 2023, as Chair Ernest Dubester’s holdover term expired at the end of the last Congress. The new Chair is a familiar face to many, former MSPB Chair Susan Tsui Grundmann, who was confirmed to the FLRA several months back and joins previous Chair and now-member Colleen Duffy Kiko.

We still await confirmation of a General Counsel, a position that has been vacant for several years. Charlotte Dye is currently in Acting General Counsel capacity, where she may remain for a maximum of 10 months, unless President Biden nominates, and the Senate confirms, a General Counsel before then. With the two current members from opposing philosophies on several areas of labor-management relations and a nominee for the third member yet to be made by the President, we’ll all wait and see how the FLRA is impacted by this change in dynamics.

For a jump start on what you can expect, join former FLRA employee and current FELTG instructor Ann Boehm on Feb. 2 for the 60-minute What Happens Now at the FLRA?

A significant change within the agency occurred last summer when the FLRA and the Union of Authority Employees (the exclusive representative of the FLRA’s bargaining-unit employees) announced they were re-establishing the FLRA’s Labor-Management Forum.

There have also been some important cases altering FLRA precedent, and a recent decision allowing an agency to discipline a union official for exceeding the bounds of robust debate – a topic of discussion in the Jan. 19 training Drawing the Line: Union Representation or Misconduct. Or join us for FLRA Law Week May 1-5, where the entire world of Federal Labor Relations will be discussed in depth. We can promise the 2023 class will be different than the 2022 version, as we keep up with the changes.

OPM Regs, Return to the Work Plans

In December, the Office of Personnel Management issued new regulations on 5 CFR Parts 315, 432 and 752, as a result of Executive Order 14003. If you missed these important updates, check out our 60-minute recording of the significant takeaways.

Among other things, OPM’s 2022 Federal Employee Viewpoint Survey (FEVS) focused on the current state of telework in agencies. After a largely abandoned attempt to return employees to the physical workplace in 2021 – thanks to the Delta and Omicron COVID-19 variants – 2022 was the year that saw increases in office attendance around the country. A full 56 percent of the Federal workforce reported that they telework one or more days per week, and 36 percent of employees reported that they were required to be physically present at their worksite every single day.

There are varying philosophies about the need for in-person collaboration as balanced against the flexibility and productivity that full-time telework provides. Return to the physical workplace has been a key point of negotiation between agencies and unions – and we don’t expect that to change any time soon. As a result, most FELTG’s classes have incorporated strategies and best practices for managing employee issues in a hybrid work environment, whether it’s harassment or employee PIPs, and everything else in between.

Closing Thoughts

I believe 2023 is looking brighter, with a Federal budget approved through September, more people comfortable traveling and meeting in person, and no major national elections (is anyone else thrilled about this one?).

Stick with FELTG this year and we’ll keep you posted on all the happenings. Hopkins@FELTG.com