Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide

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By Deborah Hopkins, January 11, 2021

Unless you were living under a rock on a deserted island without Wi-Fi for the last week, you saw the horrifying sight of a mob of American citizens, in protest of the results of the Presidential election, rioting at the United States Capitol.

Dozens, if not hundreds, of individuals engaged in violence against law enforcement officers, broke into one of our country’s most sacred buildings, destroyed government and personal property, smoked marijuana, defaced statues, stole government property, and drove our elected Members of Congress and their staffs – dedicated federal employees – to evacuate the building in fear for their safety. At least 5 deaths have been reported.

So, what would, could, or should happen if one of the rioters turned out to be a federal employee? We know that private sector companies have issued terminations. Can a federal agency fire such an employee?

When asking and answering this age-old question, it’s important to remember the discipline framework, regardless of the nature of the conduct. Following the framework will bring you to the right answer every time. At FELTG, we call this framework the Five Elements of Discipline.

I’m not going to fill in the answers for you; instead I am intentionally leaving space so that you can do the work and come to your own conclusion, with the guidance of some helpful hints in italics and a few Notes that might be of interest.

Element 1. Did the employee violate a rule?

Hint: Rules can come from a variety of places — statute, regulation, policy, should-have-known, agency SOP, code of conduct, supervisor’s unique rule, common sense, etc.

What rule(s) did the employee violate?

 

 

Note on nexus. Keep in mind if the misconduct occurs off-duty, there must be a nexus between the misconduct and the efficiency of the service. Assaulting a Federal police officer or destroying Federal property, and other things of that nature, show a link between the misconduct and the efficiency of the service.

Element 2. Does the employee know the rule exists?

Hint: An agency can’t enforce secret rules, so it has to show the employee knew, or should have known, there was a rule prohibiting such conduct.

What notice does this employee have, based on the rule(s) identified in Element 1?

 

 

Element 3. What evidence do you have that the employee broke the rule?

Hint: News footage, social media posts, emails sent on a government computer, courtroom testimony, and more have all been used as evidence in administrative cases.

What evidence would you use – and is it evidence at the preponderant level?

 

 

 

Element 4. Is removal an appropriate penalty?

Hint: Use the Douglas factors to get to the outcome. If you need a reminder, a Douglas Factors Worksheet can be found here: https://feltg.com/douglas-factors-worksheet/.

 

 

Note: In egregious cases such as these, you’ll want to hit hard the Douglas factor of the harm or potential for harm, but don’t ignore other factors such as job level, the cost of the damage, your trust and confidence in the employee, the potential for rehabilitation, and the employee’s past misconduct, especially if it involves violence, insubordination, or similar.

Element 5. Will you provide due process?

Hint: As tempting as it might be to tell someone who assaulted a Capitol Police Officer with a lead pipe “You’re fired, effective immediately,” you’ll want to be sure to follow the due process requirements that most career employees enjoy. That’s right, this citizen who has attempted to overturn the Constitution, is still entitled to his own Constitutional employment protections.

List the three-step due process requirement you’ll provide.

 

1.

2.

3.

(If you don’t know the process, then check out this article for a reminder: https://feltg.com/due-process-challenges-in-a-covid-19-world/)

Additional Considerations

A- If the employee was supposed to be working at the time they were breaking into the Capitol, the agency can charge the employee AWOL. In fact, that might be a streamlined way of getting to the removal, without having to rely on anything involving the violent behavior.

If the employee was arrested and didn’t show up to work the next day because they were in jail, the agency can also charge AWOL for that time. An employee’s annual leave request does NOT have to be approved because they are in jail.

OPM says annual leave requests may be denied if the agency’s denial is reasonable. You tell me: Is it reasonable to deny annual leave to someone who tried to overthrow Congress, assaulted federal LEOs, and destroyed government property in the process?

B – The agency can (and should) put the employee on Administrative Leave during the notice period, so they don’t come after you with a lead pipe because you’ve proposed their removal. Once regulations are issued on 5 U.S.C. 6329b the agency can use Notice Leave instead.

C – There are obviously criminal implications here. Because a removal is an administrative procedure, the agency does NOT need to wait for criminal charges to be brought, let alone a criminal conviction. Charge the underlying misconduct (for example, conduct unbecoming a Federal employee) and prove it by a preponderance of the evidence, and this employee could be off the payroll before investigators or police have paid him a single visit.

D – If you want to take the employee off the payroll even faster, you can invoke the Crime Provision under 5 U.S.C. 7513(b)(1).

We talk about all these things in upcoming training classes including UnCivil Servant: Holding Employees Accountable for Performance and Conduct (February 10-11) and MSPB Law Week (March 29-April 2). I hope you’ll join us. And please – stay safe out there. [email protected]

EEOC Measures Impact of COVID-19 on Complainant’s Missed Deadlines

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By Meghan Droste, January 11, 2021

Happy New Year, FELTG readers! Congratulations, we all made it­ — we survived and it’s no longer 2020. It’s a great feeling. And yet, I can’t help but acknowledge the clouds that still linger. We’ve started new calendars and have to adjust to writing a new date, but of course it’s not like everything magically got better or went back to normal (whatever that means) at the stroke of midnight. We may be starting to see a light at the end of the tunnel, but we’ve still got some work to do until we reach it.

I say all of that not to bring down whatever hopeful mood you may be in, or to take away from whatever you are focusing on to just get through this, but as a reminder that so many issues from last year are still here. One of the things that sadly did not disappear at 12:01 am is COVID-19.  While it’s not the top story this week, it is still here and we’re going to be feeling and seeing the impacts of it for some time to come.

In the legal world we are just starting to see some changes in terms of new case law. It’s too soon to have definitive answers on many questions (Is COVID-19 a disabling condition?  Is firing someone because they might be at greater risk of COVID-19 a form of disability discrimination?). However, we have at least one EEOC decision regarding the impact of the pandemic on the processing of federal sector complaints.

In Natalya B. v. U.S. Postal Service, EEOC App. No. 2020005270 (Nov. 30, 2020), the complainant filed a formal complaint of discrimination in March 2020. The Agency issued a Final Agency Decision in July 2020 dismissing the complaint for failure to cooperate. It found that the complainant failed to complete the affidavit sent to her by the investigator, even after warning that failure to return the packet could result in dismissal of her complaint.

In her appeal, the complainant outlined the impact of the pandemic on her ability to complete the affidavit. First, her children’s school and day care facility closed. Then her son’s father became ill with COVID-19, followed by his grandparents and aunt. The complainant also explained that she was nine months pregnant at the time all of this occurred. She assured the Commission that her personal circumstances had improved since the spring and that she would be able to participate in the processing of her complaint.

Although the Commission is generally strict when it comes to deadlines for complainants in the formal complaint stage, the Commission reversed the agency’s dismissal. It found that the deadlines for the processing of a formal complaint are “subject to waiver, estoppel and equitable tolling” and that it was appropriate to exercise its authority in this situation.  Specifically, the Commission found it was appropriate to excuse the complainant’s failure to timely respond “given the unique impact that Covid-19 had on her family as well as her pregnancy.”

The Commission was clear in its decision that it reversed the agency’s dismissal based on the “unique facts” of the case. I don’t expect that everyone who points to COVID-19 or the pandemic as a reason for missing a deadline will get an automatic pass, but I won’t be surprised to see more decisions in the future giving some leniency due to the extraordinary nature of events from the past 10 months. [email protected]

Bob Woods Explains Types of Political Appointees, Offers Advice

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By Dan Gephart, January 11, 2021

For far too long, the American public has taken for granted the peaceful transfer of power. As a new Administration prepares to take office a week from today, all eyes, even more so than usual, will be on the outgoing and incoming presidents. But the important work for an effective transfer of power has already started – and will continue to take place after President-elect Joseph Biden finishes his oath and releases his hand from a family heirloom Bible.

The transfer involves the close coordination of numerous agencies who are about to welcome thousands of new presidentially appointed employees. The majority of those positions will be filled quickly and without the need for Senate confirmation, and they will be doing the policy and leadership jobs that are critical to mission success. This transition is happening as political bi-partisanship is at its nadir. Oh, and lest we forget (not that we could if we tried) that it’s occurring in the middle of a pandemic.

FELTG understands the challenges and changes that will be impacting your job. We’ve developed several programs that we’ll be presenting over the next few months to help you navigate the transition. The day after the Inauguration (January 21) we’ll be presenting the first of three webinars in our Toolkit for a New Administration: Essential Skills and Knowledge for Federal Supervisors, Managers, and Leaders series. FELTG President Deborah Hopkins will deliver the first 60-minute training Federal Employment Law: The Current Landscape. It’ll be followed by training on Navigating Change Through Effective Management and Communication (January 28) and Effective Performance Under Stress (February 4). Register for one, two, or all three webinars. Keep an eye on the webinar and virtual training pages on FELTG’s website for the latest on our transition-related programming.

Faculty’s Faculty Staff  Lounge is filled with instructors who are engaging, smart, and experienced. And for many of our instructors, their experience includes working through more than a few Administrative transitions. Several of these instructors have offered to share their advice and guidance for a series of articles we’re calling Transition Talk.

For this first article in the Transition Talk series, we chat with FELTG Instructor Bob Woods (pictured at left). Bob retired from the Air Force in 1998 after more than 20 years of active duty. His distinguished Federal civilian career came to an end recently when he retired from his position as Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) for the Department of the Navy last year.

In all of these years as a Fed, Bob has worked with a good number of Presidential appointees. He noted that there are actually four types of Presidential appointments. When it comes to interactions with appointees, “I think it’s important to know what type you’re dealing with,” he said.

DG: Can you explain the difference between the types of appointments?

BW: Yes, they are:

1 – Presidential appointments requiring Senate confirmation (aka PAS officials):  These officials fill the highest-level positions in any Department or Agency (e.g. the Secretaries, Under Secretaries, Assistant Secretaries and General Counsel, etc.).  Typically, these officials are introduced to their Department/Agency roles by their career Principal Deputies (or equivalent), most of whom were either serving as the Acting official or “performing the duties” of the position during the transition period.  These roles are governed by the U.S. Vacancies Act, which provides authorities and limitations. In past administrations, Departments/Agencies outgoing PAS leadership direct/orchestrate transition books and orientation briefings/tours for their successors.

Depending on your position in the organization, you may be called upon to prepare some of these materials and to present the same. In my experience, incoming PAS officials often have little/no experience working with Federal employees and often have significant preconceived notions (some positive, some negative). If they have no Federal experience, they will also often be perplexed by our highly regulated work, contracting and ethics rules. If you’re advising or assisting one of these officials, you should remain alert to this and try to explain to the official that Federal employees are (or should be) trained to be apolitical in their work efforts. Assure them that your role is to guide them and support their Administration’s agenda while closely adhering to these myriad rules/regulations.  It’s critically important to quickly build trust.

2 – Presidential appointments NOT requiring Senate confirmation:  The same observations and advice provided in 1 above applies to transitioning these officials as well.

3 – Non-Career Senior Executive Service (SES). These positions are limited to no more than 10 percent of the total number of SES positions authorized. They can be filled by career SES or non-career SES. A career SES encumbering a non-career position can be displaced by a Presidential appointee and agencies are obligated to work to place these career SES.  Many of those appointed to non-career SES have prior Federal government service either as a Senior Executive or other level. These SES appointees should be treated like other new SES and given the support normally accorded to any new SES.  Obviously, if they have no prior Federal experience, the advice in #1 above should apply.

4  – Confidential or Policymaking Positions (Schedule C (SC)): Typically, these appointees are appointed into various GS (or equivalent) positions. These positions are often created on an ad hoc basis and may be geared to the qualifications of the individual appointee. These appointees are supposed to be assigned to and supervised by a PAS official, but that may be delegated to a non-career SES reporting to a PAS official. Often, these employees have little or no prior Federal experience and may have no subject-matter expertise for the staff/work unit to which they are appointed. These employees should be welcomed and provided orientation like any new similarly-graded employee.  If the employee has little or no subject matter expertise, the supervisor should explain that the employee has been given a great opportunity to learn about the inner-workings of the Department and the specific subject(s) of their assigned work unit.

The supervisor should assess their skills and create a plan to maximize the use of those skills and to provide them with on-the-job training.  These employees serve essentially at the pleasure of their PAS supervisor and/or the Head of the Agency but removals and reassignments are typically coordinated/controlled with the White House personnel office.

DG: What is the best advice you have ever given — or would like to have given — to a presidential appointee?

BW: Trust in the expertise of their career SES and non-SES staff and pay close attention to the rules/regulations that we have all learned to live by. Once this advice was given, it was incumbent upon the career staff to prove their expertise and their willingness to support the appointee and his/her agenda moving forward.

DG: What is the most important skill necessary to survive and thrive in a new administration?

BW: Actually, the same skills that help you survive and thrive in any organization. High on the list are communication  (including listening skills), interpersonal skills, leadership and time management. Especially in the early months, it’s imperative to be flexible, available, and prompt.

For more guidance, Bob suggests the following:

Bob Woods will present the webinar Why, How, and When to Avoid Whistleblower Reprisal on February 25, 2021. He will also be presenting during the virtual trainings EEOC Law Week and MSPB Law Week, as well as our second annual Emerging Issues in Federal Employment Law virtual conference. If you’re interested in bringing Bob Woods to your agency for training, email [email protected]

The Good News: 30-day Demonstration Periods – ‘Just Do It’

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By Ann Boehm, January 11, 2021

I’m not quite sure why the 1980s Nike “Just Do It” slogan came to my mind as a title for an article about using a 30-day demonstration period (also known as a PIP, ODAP, NODAP, DOP, etc.) to handle a poor performer. Perhaps it’s because I long for a simpler time.

Or maybe I’m too obsessed with binge-watching Cobra Kai. Terrific show! Lots of  ’80s nostalgia. (If I’m ever conducting training for your agency, ask me about the time I served breakfast to William Zabka/Johnny Lawrence.)

Or maybe thinking back to a 1980s slogan is a subliminal recognition that since at least 1989, the Merit Systems Protection Board (MSPB) has said that 30 days is legally sufficient time for unacceptable performers to have an opportunity to demonstrate that they can perform their job before being removed, demoted, or reassigned. Melnick v. Dep’t of Housing, Urban and Development, 42 MSPR 932 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990)

Or maybe It’s because back in 1986, during a federal personnel training session, I heard the attorney instructor say, “Performance is the easiest way to remove a federal employee, but no one is doing it.” That always stuck with me.

Performance is the easiest way to remove a federal employee. Why is that?

Performance cases are reviewed by the MSPB using the “substantial evidence” burden of proof. That’s “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p) (emphasis added), 5 C.F.R. § 1201.56(b)(1)(i).

It is a lower burden of proof than the “preponderance of the evidence” that is required for misconduct cases— “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q) (emphasis added), 5 C.F.R. § 1201.56(b)(1)(ii)

Congress intended for performance to be the easier way to remove Federal employees. Why else would the burden of proof be lower for performance than misconduct?

But many years later, agencies still resist handling poor performers through the performance removal process. And I firmly believe the reason they do is because they make the demonstration periods too daggum long.

Agencies I worked for — and agencies I trained for the past two plus years with FELTG — wrongly have believed a demonstration period should 60, 90, or heaven forbid, 120 days long. Sometimes the agency policies contradict this belief. Many agency policies state a demonstration period should be 30 days.

Why does this continue to occur?

Some supervisors, HR professionals, and attorneys think the law requires more. Sometimes they fear if they don’t give the employee at least 60 days, they will get sued (um, employees have lots of ways to sue agencies, and they will do so no matter how long the demonstration period runs). Some even believe it’s too hard to measure performance in 30 days.

Let me tell you what is really hard. Expecting a supervisor to manage a demonstration period for more than 30 days.

An employee comes to work every day to do something associated with her job’s critical elements. If the employee is unacceptable on a critical element, there are assignments she should complete during a 30-day period that allow her to show she can perform acceptably – or not.

The supervisor has to work hard during a demonstration period – providing assignments, reviewing them, assessing them. It is reasonable to expect a supervisor to spend 30 days in order to have the opportunity to remove a poor performer. But if we expect them to spend more than 30 days, it becomes too onerous. And that’s not what Congress intended.

If you still don’t believe me, keep in mind that the newly issued Office of Personnel Management regulations do not include a timeframe for the demonstration period. All that they require is a “reasonable opportunity” for the employee “to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.” And good old Melnick told us back in 1989 that a 30-day demonstration period satisfies that “reasonable opportunity.” The MSPB confirmed this more recently in Thompson v. Dep’t of the Army, 2015 MSPB 31, n.12 (2015).

So, in 2021, Just Do It. Thirty-day demonstration periods. Handle problem employees. It’s easy. And that’s good news! [email protected]

Requiring Vaccinations? Follow EEOC Steps to Avoid Discrimination

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By Frank Ferreri, January 11, 2021

Notable federal employees — like the National Institute of Health’s Anthony Fauci and Francis Collins – have rolled up their sleeves for the COVID-19 vaccine, signaling the start of another “new normal” sure to define 2021: workplace-required inoculations.

With agencies of all types looking to bring their workforces back together safely, a handle on the Equal Employment Opportunity Commission’s updated COVID-19 guidance will help federal employers stay on the right side of EEO laws when requiring vaccinations.

Here’s a look at how the EEOC views the Americans with Disability Act, Genetic Information Nondiscrimination Act, and Title VII in the vaccine era.

ADA

Under the ADA, which applies to agencies through the Rehabilitation Act, a vaccination itself is not a medical examination. However, pre-screening vaccinations may implicate the ADA’s provision on disability-related inquiries. Such inquiries may only be made if they are “job-related and consistent with business necessity.”

“Job-related and consistent with business necessity” in the vaccine context means that the agency has a reasonable belief, based on objective evidence, that an employee who doesn’t answer the questions and doesn’t receive a vaccination will pose a direct threat to the health or safety of herself or others.”

A “direct threat” is a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.

Making the case that a pandemic-causing virus is a direct threat to a workplace shouldn’t be too difficult in a time of lockdowns and social distancing.

However, some employees may have disability-related reasons for not receiving a vaccination. Agencies should conduct an individualized assessment to determine whether a direct threat exists, considering four factors: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm.

The skinny: If there is a direct threat and no way possible to provide a reasonable accommodation that would eliminate or reduce the risk, agencies may exclude an employee from the workplace. That doesn’t mean they can automatically terminate an employee, though. Instead, given how many agencies pivoted their workforces to remote positions, telework may be an option for those unable to receive a COVID-19 vaccination due to a disability.

The EEOC advises using the interactive process to determine whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.

Title VII

Religion, pandemics, and vaccines don’t always go together, and once an agency has notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the COVID-19 vaccination, the agency must provide a reasonable accommodation unless it would pose an undue hardship.

An “undue hardship” involves more than a de minimis cost or burden on the employer.

The skinny: The best practice is to assume that the employee has a sincerely held religious belief in seeking a vaccination accommodation. However, if an agency has an objective basis for questioning the religious nature or sincerity of the belief, the EEOC notes that agencies can seek additional supporting information.

Similar to the disability context, with so much telework already happening in federal agencies, working remotely may be a natural accommodation for an employee who cannot receive a vaccine due to religious reasons.

GINA

Prior to 2020, “messenger ribonucleic acid” didn’t get much attention outside of labs and biology classrooms, but the “new normal” may soon bring history’s most anticipated mRNA technology to a workplace near you.

The Centers for Disease Control and Prevention reports that COVID-19 vaccines don’t interact with people’s genetic material, so requiring the vaccine, by itself, wouldn’t violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

But here’s the rub: Pre-vaccination medical screening questions may elicit information about employees’ genetic information if they include questions regarding the immune systems of family members.

The skinny: If pre-vaccination screening doesn’t include questions about genetic information, like family medical history, the agency doesn’t have to worry about GINA. If the screening does include such questions, the agency should consider requesting employees to show proof of vaccination from a third party, such as their doctors or pharmacies.

In that case, as a best practice, agencies should warn employees not to provide genetic information as part of the proof using the model language of 29 CFR 1635.8(b)(1)(i). Including this language will protect agencies from GINA charges as the law considers genetic information obtained after providing the warning “inadvertent.”

Pregnancy Discrimination Act

As an amendment to Title VII, the PDA should be on employers’ minds when vaccination requirements work their way into agency policy.

While the EEOC’s latest update didn’t specifically address pregnancy discrimination, the commission previously emphasized that “a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.”

Under the U.S. Supreme Court’s holding in Young v. United Parcel Service, 135 S. Ct. 1338 (2015), an employee can show pregnancy discrimination by presenting evidence that: 1) she sought an accommodation; 2) the agency didn’t accommodate her; and 3) the agency did accommodate others “similar in their ability or inability to work.”

In the Court’s reasoning, an employee can make her case “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”

The skinny: Per EEOC directions, agencies should make sure that supervisors, managers, and HR personnel know how to handle pregnancy-related accommodation requests to avoid disparate treatment in violation of Title VII.

Yet again, the case for telework will likely arise. If nonpregnant employees are offered the accommodation of working remotely, it would logically follow that a pregnant employee could potentially still do the job while teleworking. [email protected]

[Editor’s note: Register now for EEO Challenges, COVID-19, and a Return to Workplace Normalcy, a half-day virtual training event on March 10.]

What Will Be The Fate of the Trump Executive Orders?

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By Michael Rhoads, January 11, 2021

Happy New Year! The Counting Crows said it best in A Long December: “And there’s reason to believe, maybe this year will be better than the last.” I don’t know about you, but I do have a sense that this year will be better than the last.

A common question in the transition from one administration to the next is which Executive Orders will survive and which will be rescinded. During his campaign, former Vice President Joe Biden signaled that he will rescinding some Executive Orders on his first day in office.

Among the first EOs to be rescinded will likely be those affecting Labor-Management Relations. The National Treasury Employees Union (NTEU) published its recommendation in November to rescind EOs 13836, 13837 & 13839, along with other actions they would like to see the Biden Administration take. Rescinding these EOs will help improve the climate of Labor-Management Relations in the Federal workforce by relieving pressure on the management side to expedite negotiations on new collective bargaining agreements. It will also ease official time restrictions for union work. Yet, there is still more work to do on both sides when it comes to improving Labor-Management Relations.

Diversity Training

Some Executive Orders have already been suspended by court order. In response to a preliminary injunction issued by the US District Court for the Northern District of California, the Department of Labor released a Notice Regarding Executive Order 13950, related to restrictions on diversity training. The Office of Federal Contract Compliance Programs (OFCCP) will stop using the hotline set up to collect information, cease investigations of noncompliance with the EO, and not take any enforcement action outlined in the EO.  OFCCP will also stop publishing any Requests for Information which sought information related to compliance or noncompliance with the EO.  Additionally, contract clauses restricting the use of the diversity terms outlined in the EO, such as “white privilege,” will not be enforced.

Update on Schedule F

Despite calls from good governance and federal employee groups to block Schedule F, Congress did not block it in this year’s spending bill, and Schedule F may not be easy to eliminate with the stroke of a pen. It will still have the support of elected officials eager to reshape the federal workforce. According to University of Texas Professor Dr. Donald F. Kettl, conservatives may use Schedule F to wage a court battle calling into question the constitutionality of the Federal government’s merit-based system itself.  This could hinder the Biden Administration’s ability to run the federal government in the short term and change the Federal workforce in the long run.  The status of this EO is “to be continued…,” even if only in part.

Find out more, along with what else to expect – and what things might not change – by attending our webinar series: Toolkit for a New Administration: Essential Skills and Knowledge for Federal Supervisors, Managers, and Leaders.  The first webinar will be held on January 21, so you can get an immediate jump on what you need to know, and how to apply the knowledge to your day-to-day operations.

Stay safe, and remember, we’re all in this together. [email protected]

New RIF Regs Raise Concerns About Performance Appraisals

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By Barbara Haga, January 11, 2021

Late last year, OPM issued new regulations on the process for determining retention standing in a reduction-in-force (85 FR 81839). The comment period ends Jan. 19.

These regs implement a requirement from EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.”  Section 2 of the EO entitled “Principles for Accountability in the Federal Workforce,” sets a list of requirements that we are all familiar with such as eliminating the requirement for progressive discipline and the directive to issue decisions in 15 business days.  The last item on that list was that agencies should prioritize performance over length of service when determining which employees would be retained after a RIF. That item indicated that regulations would have to be issued under Sec 7 of the order for this to occur. Sec 7(a) stated:

Implementation. (a) Within 45 days of the date of this order, the OPM Director shall examine whether existing regulations effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order. To the extent necessary or appropriate, the OPM Director shall, as soon as practicable, propose for notice and public comment appropriate regulations to effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.

As a result, OPM determined to change retention order. Currently, employees are listed by tenure, veterans’ preference, then length of service that includes augmentation based on the average of the last three appraisals assigned in the prior four-year period. The order under the proposed regulations would be tenure, the total value of the last three ratings assigned in the prior four-year period, veterans’ preference, and length of service.

What OPM Didn’t Adopt

OPM’s proposed regs change the determination of retention within 5 USC 3502. The regs are not as drastic as what was done several years ago at the Department of Defense. Section 1101 of the NDAA for Fiscal Year 2016 granted DoD authority to establish procedures which provide that the order of retention would be based primarily on performance. In any DoD RIFs occurring on or after Jan. 19, 2017, employees are placed in retention order by performance first. Their retention order is 1) rating of record; 2) tenure group; 3) average score; 4) veterans’ preference; and 5) DoD service computation date-RIF. Within the performance category, the DoD system also categorizes those who have periods of assessed performance of 12 months or more over those who have less than 12 months of assessed performance.

What Will it Mean?

I spent my career working for two agencies (NASA, DoD), that have populations with higher average ages than many other agencies. How does that impact RIF? The vast majority of employees would have more than three years of service as a civilian employee, so virtually everyone is Tenure Group I. While we had some temporary and term employees and new Federal employees from time to time, when you looked at the overall population basically all our employees were in the same Tenure Group. If there is not a lot of differentiation with tenure, then under the proposed regulations, the factor that will have the greatest impact will be performance.

I don’t have a problem with performance being the determining factor in principle. It makes sense. At the end of the RIF, you would hope to have your best people still working for you carrying out whatever functions remain. My issue is whether the appraisals are good enough to have that kind of impact.

Are the Appraisals Sturdy Enough?

I spend a lot of time training on performance topics and working with HR practitioners and managers on how to use the system effectively. I was responsible for the operation of  the performance management programs at various times during my career.  I’ve seen things that make me question whether annual assessments legitimately capture the level the employee achieved.

Are the elements designated as critical really critical? I spend a considerable amount of time reviewing performance plans. I see scary things. It’s not as bad as seeing dead people (nod to The Sixth Sense), but it’s enough to make me cringe. Sometimes, the thing identified as critical is fine, but the measures are off. Even if those things are correct, I worry whether the assessment reached when applying the measures to that critical thing is legitimate. What about the manager who gives a higher rating than what the employee deserves because he knows that there is going to be a grievance or EEO complaint if the employee doesn’t end up with the summary rating desired? Or the manager who rates everyone the same because it’s easier than explaining distinctions among the employees?

Or the upper-level manager who violates 5 CFR 430.208(c) by instructing subordinate managers that they may only have a certain percentage of employees at the top rating level?  Or the manager who would have initiated removal of an unacceptable performer, but upper management directs her to give a Level 3 rating instead?

I’m not the only person concerned. Dr. Howard Risher is a consultant in the areas of compensation and performance management.  He has been involved in studies of Federal employee performance and compensation over many years. He was part of a group that was involved in the study that led to the Federal Employees Pay Comparability Act in 1990, and he was also part of the group that recommended performance-based pay for Federal employees in 2004. Dr. Risher writes frequently for Government Executive. In December, he wrote: “An Office of Personnel Management proposal to link layoffs to performance ratings was unexpected. If the ratings were valid, it would make sense but ratings have little credibility.” Ouch.

Given that these regulations are tied to EO 13839, which is likely to die very soon perhaps we will never see final regulations that incorporate this change; but the prospect worries me.

Tips from the Other Side: Undue Hardship and Religious Accommodation

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By Meghan Droste, January 11, 2021

It’s a new year, so I have a new focus for my tips for you this month. Well, sort of a new focus. I spent the last few months of the year-that-shall-not-be-named bringing your attention to issues related to accommodating employees with disabilities. As promised, we’re moving to a new topic this month, but it still involves accommodations. This time, I want to focus on handling requests for religious accommodations.

Agencies are required to provide accommodations for religious beliefs and practices unless doing so would present an undue hardship. In contrast to disability cases, the bar for undue hardship in religious accommodations is fairly low: Anything that would require more than a de minimis cost to the agency is an undue hardship. Agencies still often trip over this bar in denying requests for accommodations without any evidence that the accommodation actually would be a hardship.

The Commission’s recent decision in Frances A. v. Department of Justice, EEOC App. No. 2019004187 (Nov. 30, 2020) provides a good example of this. The complainant served as a chaplain at a federal correctional facility. In early 2017, the warden issued a memo requiring all employees who worked in duty stations beyond the control center to carry pepper spray with them. The policy initial exempted chaplains from this requirement, but the agency rescinded the exemption a week later.

In March 2017, the complainant requested an exemption from the requirement to carry pepper spray, citing his religious beliefs that prevented him from carrying a weapon. Three months later the warden denied the complainant’s request on the grounds that it was an undue hardship.  The warden stated that if the complainant did not carry pepper spray it would result in a “significant impact” on facility operations by reducing the number of staff who could respond to emergency or requiring other staff to assist the complainant. Five months after the denial, the agency reversed its position and granted the complainant’s accommodation request.

In its decision on the failure to accommodate complaint, the EEOC found that the agency had no evidence to support its assertion that the granting the complainant’s request would result in an undue hardship on the agency. As the Commission noted, the claim that it would result in a “significant impact” on facility operations was questionable when there were 300 employees who were required to carry pepper spray, and the complainant represented only 0.33 percent of those employees.

As happens too often, it appears that the agency simply pushed back reflexively on the complainant’s request for accommodations rather than making an effort to really consider whether it was possible to grant it (or to provide an alternative accommodation).

The lower threshold for establishing an undue hardship should not be read as a free pass to choose not to provide accommodations when the agency would rather not. The agency must still have some real evidence to point to before denying a request. [email protected]